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

Posted in Main Blog (All Posts) on August 10th, 2010 4:48 am by HL

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

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 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 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 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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