35 upvotes, 1 direct replies (showing 1)
Okay, so given that I've been having this conversation with several different people today and have been working on issues regarding immigration and refugee policy for the past couple of months, I can answer this question fairly well, though I welcome anyone else who has different perspectives and additional resources on the issue. This is going to get very long and possibly a little convoluted (as all discussions concerning the intricacies of the law tend to do), so please feel free to ask as many questions as you need to in order to clarify things. I will also very quickly (at the end) address the question of whether Trump even has the authority to "try and end birthright citizenship," because that is an important piece of the overall question (even if it's not really the question being asked).
The *extremely* short answers to this question are "yes, senators did anticipate that it could be used to grant citizenship to children of immigrants, and debated accordingly" and "immediately after the amendment was ratified, but whether birthright citizenship actually legally applied to immigrants wasn't decided until around thirty years later in 1898." The answer to the question you *didn't* ask is "no, *Trump* cannot end birthright citizenship, as it would be both unconstitutional on grounds of the 14th Amendment and an act of executive overreach."
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The 14th Amendment was passed in 1866 and ratified in 1868, three years after the conclusion of the Civil War. What's important to note is that the citizenship clause was put into place specifically to nullify the Dredd Scott decision and ensure that black people (and specifically former slaves) were considered citizens of the United States in the post-Civil War/Reconstruction period (and were thus eligible to vote and enjoy all of the other rights and privileges of citizens).
What's also important to note is there is a much more obscure law that was passed four months prior to the passage of the 14A called the Civil Rights Act of 1866, principally written by Senator Lyman Trumbull. The opening of said law reads as follows[1]:
1: https://loveman.sdsu.edu/docs/1866FirstCivilRightsAct.pdf
Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, **That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States**; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States to......[list of rights and privileges enjoyed by citizens]......
This statute was a major foundational aspect of general federal policy during the Reconstruction era, and would pop up again four months later when senators were drafting 14A. Indeed, Trumbull actually stated that his intention in writing the law was to "facilitate the passage of a constitutional amendment." Putting the text (and the question of applicability to immigrants) aside for a moment, the content of the statute was bitterly debated in the Senate within the context of the Reconstruction era and forcing the South to accept black people as citizens of the United States, with all of the rights and privileges that label contains. The law is actually notable in that it was the first time in the history of the US that Congress overrode a Presidential veto for a major act of legislation.
So that is the political context of birthright citizenship in which we find the creation of the 14th Amendment: after the passage of the Civil Rights Law of 1866 (passed with some reluctance and with some people fiercely debating that Congress didn't even have the authority to pass and enforce said law), all persons born in the United States not subject to any foreign power, regardless of race and color, were considered citizens of the United States.
Quite a few members of Congress actually supported the passage of the 14A on the grounds that it would clarify and eliminate any doubts about the constitutionality of the civil rights law and ensure that no subsequent Congress could later repeal or alter the main provisions of that Act, so to talk about the political context and history of 14A's citizenship clause necessitates discussion of the 1866 Civil Rights Act. The SCOTUS opinion for Jones v. Mayer[2] (1968) has a lot of interesting discussion about the history of the Act and its relation to the 14th Amendment that's worth a look, though said discussion is mostly related to the amendment's discussion of property rights and the equal protection clause (since that's what the case was about). The other relevant place to find information about this is the Congressional Archives[3], which have the minutes and transcripts of the goings-on in Congress at the time via the congressional record.
2: https://archive.is/20120712121855/http://laws.findlaw.com/us/392/409.html
3: https://www.loc.gov/rr/program/bib/ourdocs/14thamendment.html
Now, all of that being said, there was some discussion on the 14th Amendment's applicability to foreigners and the children of immigrants:
While the clause was originally intended only to apply to those specifically noted as applicable under the 1866 Civil Rights Act (again, passed just months earlier), the clause's author, Jacob Howard, changed the wording of the clause so as to make it more broad (specifically the qualifications that they had to be "not subject to any foreign power" and not "Indians not taxed" were combined into a single qualification, that they be "subject to the jurisdiction" of the United States). This change was endorsed by Trumbull himself, who considered the two phrasings equivalent to each other. However, some senators (such as James Doolittle) disagreed and pushed for an alternate wording to make the applicability of the clause clearer.
We have no written record of any debate regarding who is actually encompassed by the phrase "not subject to any foreign power." What we *do* have is a discussion on who is encompassed by the phrase "subject to the jurisdiction”:
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 very other class of persons.”
.........
Mr. Doolittle: “I presume the honorable Senator from Michigan does not intend by this amendment to include the Indians. I move, therefore, to amend the amendment—I presume he will have no objection to it—by inserting after the word “thereof” the words “excluding Indians not taxed.”
Mr. Howard: “I hope that amendment to the amendment will not be adopted. Indians born within the limits of the United States and who maintain their tribal relations, are not, in the sense of the amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being *quasi* foreign nations.”
Mr. Cowan: "...I would be glad if the honorable Senator in good earnest would favor us with some such definition. Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they?......[x[4]]
4: http://memory.loc.gov/cgi-bin/ampage?collId=llcg&fileName=073/llcg073.db&recNum=11
Ultimately, the answer was decided that children born in the United States to parents who are not U.S. citizens are, in fact, citizens. Via Wikipedia[5] (used only because it's the most concise explanation I've found of the debate):
5: https://en.wikipedia.org/wiki/Citizenship_Clause
...concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Trumbull as well as President Andrew Johnson, asserted that both the Civil Rights Act and the Citizenship Clause would confer citizenship on them at birth, and no senator offered a contrary opinion.
So the answer to your third question, concerning when 14A was first used to grant citizenship to children of immigrants, was "immediately following its ratification in 1868."
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Comment by erissays at 30/10/2018 at 23:44 UTC*
21 upvotes, 2 direct replies
1: https://www.law.cornell.edu/supremecourt/text/169/649
Additionally, the court held that:
The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country. [Calvin's Case, 7 Rep. 1, 18b; Cockburn on Nationality, 7; Dicey Conflict of Laws, 177; Inglis v. Sailors' Snug Harbor, 3 Pet. 99, 155; 2 Kent Com. 39, 42.]
The principles upon which each of those exceptions rests were long ago distinctly stated by this court.
So the Supreme Court, after a painstaking review of the law and history of the matter, explained that they concluded the phrase "subject to the jurisdiction thereof" has only three exceptions:
1. Members of certain Indian tribes;
2. Children of alien enemies in times of hostile occupation; and
3. Children of diplomatic representatives of a foreign state.
The holding of the case genuinely is that straightforward. If you are born in the U.S. and fall outside of these three exceptions, you are a citizen, and laws have since been passed that include all Native Americans as American citizens (the Indian Citizenship Act of 1924). So this ruling encompasses the children born on U.S. soil from immigrants who have chosen to make the United States their home and may or may not be naturalized citizens. A 2007 legal analysis by Glenn concluded that "the parameters of the *jus soli* principle, as stated by the court in *Wong Kim Ark*, have never been seriously questioned by the Supreme Court, and have been accepted as dogma by lower courts," and a 2010 review by Garrett Epps on the history of the Citizenship Clause notes that the *Wong Kim Ark* decision held that the guarantee of birthright citizenship "applies to children of foreigners present on American soil."
2: http://encyclopedia.densho.org/Regan_v._King/
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