Did the author of the Citizenship Clause really say it would exclude the children of "foreigners"?

››› ››› JOCELYN FONG

Right-wing media have claimed that Sen. Jacob Howard, the author of the 14th Amendment's Citizenship Clause, said that it would not apply to the children of "foreigners." However, scholars dispute this interpretation of Howard's remarks; and the Supreme Court noted in 1898 that the white children of European foreigners "have always been considered and treated as citizens."

Right-wing media cite Howard's statement to claim 14th Amendment wasn't intended for "the children of aliens"

Coulter: "The drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens." From Coulter's August 9 column:

The drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. (For my younger readers, back in those days, people cleaned their own houses and raised their own kids.)

Inasmuch as America was not the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it's amazing the drafters even considered the amendment's effect on the children of aliens.

But they did.

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."

Washington Examiner contributor McQuain: Howard "made it very clear he wasn't at all talking about the babies of anyone but those considered natural citizens." Bruce McQuain wrote in an August 9 Washington Examiner post:

But anchor babies, as they have become to be known, have nothing to do with tradition or the intent of the amendment. In fact, the man who wrote it at the time made it very clear he wasn't at all talking about the babies of anyone but those considered natural citizens. Senator Jacob Howard of Michigan, the citizenship clause author, was very clear about that point:

"This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."

(Underlined added.) One has to wonder how that could be misinterpreted.

Scholars dispute this interpretation of Howard's statement

Section 1 of the 14th Amendment states:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Sen. Jacob Howard, Republican of Michigan, proposed the Citizenship Clause and stated on May 30, 1866:

Mr. HOWARD: This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.

Following Howard's statement, senators went on to debate whether it was wise to extend citizenship to the children of foreigners. During the May 30, 1866, Senate debate over Howard's proposed Citizenship Clause to the 14th Amendment, several senators discussed whether it was a good idea to extend citizenship to the children of foreigners, as Media Matters for America has noted. The debate indicates that they believed the Citizenship Clause would apply to the children of foreigners. For instance, Sen. Edgar Cowan of Pennsylvania, who voted against the 14th Amendment, aired his concerns that Chinese immigrants would overrun California. And Sen. John Conness of California stated:

The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.

Former Thomas clerk: Repeal proponents' interpretation of Howard's statement "renders completely meaningless the subsequent dialogue," and "nothing" indicates "drafters intended to draw distinctions between different categories of aliens." James C. Ho, the solicitor general of Texas who previously clerked for Justice Clarence Thomas, worked in the Bush administration, and served as chief counsel to Sen. John Cornyn (R-TX), wrote in 2006 that "no Senator disputed the meaning of the amendment with respect to alien children" and "nothing in text or history suggests that the drafters intended to draw distinctions between different categories of aliens." Ho further wrote:

Repeal proponents contend that history supports their position.

First, they quote Howard's introductory remarks to state that birthright citizenship "will not, of course, include ... foreigners." But that reads Howard's reference to "aliens, who belong to the families of ambassadors or foreign ministers" out of the sentence. It also renders completely meaningless the subsequent dialogue between Senators Cowan and Conness over the wisdom of extending birthright citizenship to the children of Chinese immigrants and Gypsies.

Legal scholar Garrett Epps: Restrictionist reading of Howard's statement is "strained." Legal scholar Garrett Epps wrote in a recent working paper that "a review of the legislative debates" indicates that the Citizenship Clause "was designed to exclude two and only two groups" -- children of diplomats and "members of Indian tribes who maintained quasi-sovereign status." Epps further wrote: "Originalism is often advanced as a methodology that holds promise for clarifying unclear portions of constitutional text or for filling lacunae in the document. That is not the use to which it is being put in the context of the Citizenship Clause. Here, the originalist claim is in essence that seemingly clear words mean something other than what they say; that the language was adopted with mental reservation or qualification that should prevent our giving them their plain meaning." Referring to Howard's statement, Epps wrote in a footnote:

Professor Mayton reads this language as excluding the children of two classes of aliens from birthright citizenship: first, all "consular personnel," and, second, "aliens." That is, we should construe Howard as meaning that the citizenship clause will exclude the "two classes," consisting in essence of 1) the children of all foreigners and 2) the children of some foreigners. Professor Mayton considers his thesis confirmed because "at that time no objection was made." The most logical inference to this reader is that no one objected because no one understood it in the strained way that Professor Mayton does. In descending so to the level of grammatical parsing, I feel that we in [are] in danger of leaving the world of constitutional history and entering some kind of Da Vinci-code alternate universe. That is, can we really suppose that this one ambiguous phrase spoken by one Senator, no matter how read, can supply us with a code key to general language adopted by both Houses of Congress and the legislatures of two-thirds of the States?

CAC chief counsel: "The language [Howard] used strongly suggests he was describing a single excluded class, limited to families of diplomats." Elizabeth Wydra, the chief counsel of the Constitutional Accountability Center, a progressive legal group, wrote in May 2009 that Howard was likely referring only to "families of diplomats" and not to "foreigners, aliens" generally:

Opponents of birthright citizenship also cite a statement by Senator Howard, who introduced the language of the Citizenship Clause, that the amendment would "not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons." But if Howard was intending to list several categories of excluded persons (e.g., foreigners, aliens or families of diplomats) he could have said so. The language he used strongly suggests he was describing a single excluded class, limited to families of diplomats.

This interpretation of the Reconstruction Framers' views on the classes of persons excluded from birthright citizenship is clarified by a statement made just six days prior to Senator Howard's introduction of the Citizenship Clause. In an exchange on the Senate floor, Senator Wade acknowledged a colleague's suggestion that some persons born on U.S. soil might not be automatically granted citizenship, stating "I know that is so in one instance, in the case of the children of foreign ministers who reside 'near' the United States, in the diplomatic language." He went on to explain that children of foreign ministers were exempt not because of an "allegiance" or consent reason, but because there is a legal fiction that they do not actually reside on U.S. soil: "By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States." In light of the legislative history described above, it is highly unlikely that Senator Howard's comment regarding foreign diplomats means what opponents to birthright citizenship claim. A single comment plucked out of context should not be used to sweep aside the overwhelming text, history, and principles that point to the opposite conclusion.

CRS: Congress "intended to extend U.S. citizenship" to everyone born in the U.S. regardless of "alienage of the parents." The Congressional Research Service (CRS) stated in a September 2005 report:

Although the primary aim was to secure citizenship for African-Americans, the debates on the citizenship provisions of the Civil Rights Act of 1866 and the Fourteenth Amendment indicate that they were intended to extend U.S. citizenship to all persons born in the United States and subject to its jurisdiction regardless of race, ethnicity or alienage of the parents.

Supreme Court rejected claim that child born in the U.S. to foreigners was not a citizen. As CRS noted, the Supreme Court ruled in U.S. v. Wong Kim Ark (1898) that "where birth in the United States was clear, a child of Chinese parents was, in the Court's opinion, definitely a citizen under the Fourteenth Amendment, even though Chinese aliens were ineligible to naturalize under then-existing law."

The Court stated that long before the adoption of the 14th Amendment, "all white persons" born in the U.S., including children of "foreigners," were considered native-born citizens (provided that they were not "children of ambassadors or public ministers of a foreign government"), and that "[t]o hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States." The Court further stated:

The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

[...]

It does not appear to have been suggested in either House of Congress that children born in the United States of Chinese parents would not come within the terms and effect of the leading sentence of the Fourteenth Amendment.

Doubtless, the intention of the Congress which framed and of the States which adopted this Amendment of the Constitution must be sought in the words of the Amendment, and the debates in Congress are not admissible as evidence to control the meaning of those words. But the statements above quoted are valuable as contemporaneous opinions of jurists and statesmen upon the legal meaning of the words themselves, and are, at the least, interesting as showing that the application of the Amendment to the Chinese race was considered, and not overlooked.

Historian Eric Foner: "If they had meant to exclude any kind of people, aliens, children of aliens, they would have done so." Colombia University historian Eric Foner stated during the August 2 edition of CNN's Anderson Cooper 360 Degrees that it's "not true" that the 14th Amendment was not intended to apply to the children of aliens, adding, "The 14th Amendment was debated for months, and the wording was very, very carefully worked out. If they had meant to exclude any kind of people, aliens, children of aliens, they would have done so." Foner further stated of the Citizenship Clause:

FONER: It was primarily to establish this unquestionable citizenship of African-Americans, which, before the Civil War, the Dred Scott decision has said no black person could be a citizen.

But it was also to create a national standard of citizenship for everybody, not just black people, children of immigrants, Irish immigrants, anybody. As you said before, it was debated about the Chinese on the West Coast. Everybody understood that this meant all persons born in the United States, with a couple of exceptions.

It didn't apply to Native Americans, because they were like members of their own little nations, their tribes, and it didn't apply to like children of diplomats born in an embassy or something like that.

[...]

COOPER: So, when those argue -- when -- the people who argue that this only was based on African-Americans, that's simply not true?

FONER: That's completely false. That's completely false.

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