Objective historical reasoning — distinct from the political impulse to ransack the past for useful bits and the lawyerly impulse to torture desired meanings out of archaic language — offers a way out of the present impasse over birthright citizenship.
At issue is the meaning of the Citizenship Clause of the Fourteenth Amendment, which was framed in response to the refusal of state officials to acknowledge black Americans as citizens.
Congress had attempted to address this issue in the Civil Rights Act of 1866, but opponents cited the Supreme Court’s decision in Dred Scott v. Sandford, 60 U.S. 393 (1857) that Black Americans could not be citizens.
The Fourteenth Amendment, ratified in 1868, resolved that issue by specifying that, "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."
"All persons born or naturalized in the United States . . . are citizens" seems to guarantee the rights and privileges of United States citizenship to every person born in the United States or admitted to citizenship through naturalization. But the passage is qualified by the phrase "and subject to the jurisdiction thereof."
What this phrase means is not immediately apparent.
This much logic suggests: the Framers included "and subject to the jurisdiction thereof" to exclude certain people born in the United States from citizenship.
Opponents of birthright citizenship contend that this phrase excludes the children of non-citizens because non-citizens and their children owe allegiance to a foreign prince or state and are not "subject to the jurisdiction" of the United States.
There is no historical basis for this position.
Everyone in the United States in 1868 was nominally subject to the law, and in that sense subject to the jurisdiction of the United States.
Three groups were not wholly subject to American jurisdiction: foreign diplomats, Indians who belonged to sovereign tribes, and foreigners visiting or residing in the United States.
They were not wholly subject to American jurisdiction because they did not possess all the rights nor were they required to fulfill all the obligations of citizens.
The draftsmen agreed that children born to ambassadors and Indians belonging to sovereign tribes were not citizens. That left children born to other non-citizens residing in the United States — most of them born in the United States to unnaturalized immigrant parents.
Their status was not ambiguous.
They had been regarded as citizens at birth before the ratification of the Fourteenth Amendment. Senator Lyman Trumbull, a draftsman of the amendment, explained that it ensured, "that all who were born here, or who came from foreign lands and were naturalized, were to be deemed citizens in every state where they might happen to dwell."
This would seem to conclude our question in favor of universal birthright citizenship, but before we consider the matter resolved we need to weigh the difference between children born to non-citizens in 1868 and those born to non-citizens in our time.
Historical context matters.
In 1868 all non-citizens living in the United States were here legally.
Despite anxiety, bigotry, and occasional violence, the United States then welcomed immigrants. They were free to enter the country and reside here.
The path to citizenship was easy and with few exceptions foreigners could reside here indefinitely without applying for citizenship.
In our time millions of non-citizens are living in the United States illegally.
The men who authored the Fourteenth Amendment did not consider the status of children born to non-citizens living in the United States in violation of American law because there were no such laws and never had been.
There were no illegal aliens in the United States in 1868.
The Framers of the Fourteenth Amendment might have explicitly excluded the American-born children of parents residing illegally in the United States if they had considered the possibility.
But there is no evidence that they did.
They could not think of everything and depended on jurisprudence and future legislation to deal with contingencies they did not imagine and exceptions they overlooked. They depended on us.
As Lyman Trumbull said during the debate: "We often pass laws to remove doubts."
The time has come for Congress to pass a statute consistent with the common sense of the subject, that the children born to people residing illegally in the United States are citizens of the nation to which their parents belong and that they may apply to become naturalized citizens of the United States when they are eligible to do so under law.
Jack Warren is an authority on the history of American politics and public life and editor of The American Crisis, an online journal of history and commentary (www.americanideal.org). His newest book is, "Freedom: The Enduring Importance of the American Revolution." Read Jack Warren's Reports — More Here.
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