Garrett Epps – The Citizenship Clause: A “Legislative History” 2010

Many people have misunderstood the meaning of the term ‘not subject to any foreign power’ to mean that this would exclude children born to aliens. However, the discussion surrounding the act shows how its supporters asserted that it would naturalize children of Chinese and Gypsies born in this country. There is much more when examining these deliberations… More to come.

Source: Garrett Epps, The Citizenship Clause: A “Legislative History”, American University Law Review, 60(2), 2012

It is this Civil Rights Bill language that the proponents of a restrictive reading of the Clause regard as indicating the Fourteenth Amendment Framers‘ ―intent to limit birthright citizenship to, in essence, children whose parents had no other citizenship status elsewhere in the world. The argument is that children of foreign citizens temporarily resident in the United States are ―subject to [the] foreign power governing their parents‘ citizenship. Immediately after the new wording was offered, however, Trumbull engaged in a colloquy that sheds a considerably different light on this provision. Senator Edgar Cowan of Pennsylvania, a conservative Republican and one of Johnson‘s few remaining Republican supporters in Congress, archly asked Trumbull whether this language would naturalize the ―children of Chinese and Gypsies born in this country? Trumbull replied, ―Undoubtedly.

What is the importance of this colloquy? Well, consider that in 1866, Chinese-born people resident in the United States were ineligible to naturalize as citizens. Under the Naturalization Act of 1790, naturalized citizenship was limited to ―free white person[s]. Thus, every immigrant from China was by definition not only an alien but a ―subject‖ of the Chinese empire and thus not subject to the ―full and complete jurisdiction‖ that originalists regard as important restrictive language.

But if this was the intended meaning of ―not subject to a foreign power,‖ how could it be ―[u]ndoubtedly‖ true that children of Chinese were to be citizens under the Civil Rights Act? The answer seems nonsensical; and before we deal with the anomaly by suggesting that Trumbull simply did not understand what he was talking about, remember that Trumbull‘s is preeminent among those whose ―clear intent‖ we are supposedly parsing.

The casual reference to ―Gypsies‖ in Senator Cowan‘s question also foreshadowed a theme that would become quite important during the debate over the Citizenship Clause of the Fourteenth Amendment. Chinese immigrants were present in the United States legally, and were (as we have seen) citizens of another nation. The ―Gypsies‖ in the United States (assuming there were any) were the closest thing the United States had at that time to ―illegal‖ immigrants—a shadow population that was considered to be living in defiance of American law.79 Their status and the language used about them subsequently in the debate are quite suggestive.80

Who, then, were those not subject to ―the full and complete jurisdiction‖ of the United States? There were two classes. The first covered ―children of public ministers‖—what we would call diplomats today, who were covered by diplomatic immunity under international law. The second was a subset of the Native American population—those living under tribal government on reservations under treaties that recognized their tribes as separate sovereigns and those resident on the frontier in territory and among tribal groups that had not been reduced to federal control. The first group of Native people were ―subject‖ to their tribal governments, which had treaty immunities to U.S. court jurisdiction. The second were not subject to U.S. jurisdiction at all—they were ―wild Indians.

Meaning of “Subject to any foreign power”

The 1866 Civil Rights Act likewise offers no support. Enacted less than two months before the Senate adopted the Howard

amendment, the Act guarantees birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”32 Repeal proponents contend that all aliens are “subject to a[] foreign power,” and that this is relevant because the Fourteenth Amendment was ratified to ensure the Act’s validity.

But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Fourteenth Amendment, to cover the children of aliens. In one exchange, Cowan, in a preview of his later opposition to the Howard text, “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.”33

Source: James Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment

James Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment

James Ho explains why the expression “subject to any foreign power” is so often misunderstood and that the legislative history shows no support for the interpretation that this would exclude children born to alien parents. Note also that the Civil Right’s Act’s language applies to the child, not the parents and thus it appears to be similar in extent to the meaning of ‘subject to the jurisdiction” which by the fewest words excludes children born to parents who are invading military or foreign dignitaries. These are well known categories excluded from the Common Law definition.

The 1866 Civil Rights Act likewise offers no support. Enacted less than two months before the Senate adopted the Howard amendment, the Act guarantees birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”32 Repeal proponents contend that all aliens are “subject to a[] foreign power,” and that this is relevant because the Fourteenth Amendment was ratified to ensure the Act’s validity.

But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Fourteenth Amendment, to cover the children of aliens. In one exchange, Cowan, in a preview of his later opposition to the Howard text, “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.”33

Source: James Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment

Meaning of “Subject to any foreign power”

The 1866 Civil Rights Act likewise offers no support. Enacted less than two months before the Senate adopted the Howard

amendment, the Act guarantees birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”32 Repeal proponents contend that all aliens are “subject to a[] foreign power,” and that this is relevant because the Fourteenth Amendment was ratified to ensure the Act’s validity.

But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Fourteenth Amendment, to cover the children of aliens. In one exchange, Cowan, in a preview of his later opposition to the Howard text, “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.”33

Source: James Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment

Meaning of “Subject to any foreign power”

The 1866 Civil Rights Act likewise offers no support. Enacted less than two months before the Senate adopted the Howard

amendment, the Act guarantees birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”32 Repeal proponents contend that all aliens are “subject to a[] foreign power,” and that this is relevant because the Fourteenth Amendment was ratified to ensure the Act’s validity.

But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Fourteenth Amendment, to cover the children of aliens. In one exchange, Cowan, in a preview of his later opposition to the Howard text, “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.”33

Source: James Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment

James Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment

James Ho explains why the expression “subject to any foreign power” is so often misunderstood and that the legislative history shows no support for the interpretation that this would exclude children born to alien parents. Note also that the Civil Right’s Act’s language applies to the child, not the parents and thus it appears to be similar in extent to the meaning of ‘subject to the jurisdiction” which by the fewest words excludes children born to parents who are invading military or foreign dignitaries. These are well known categories excluded from the Common Law definition.

The 1866 Civil Rights Act likewise offers no support. Enacted less than two months before the Senate adopted the Howard amendment, the Act guarantees birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”32 Repeal proponents contend that all aliens are “subject to a[] foreign power,” and that this is relevant because the Fourteenth Amendment was ratified to ensure the Act’s validity.

But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Fourteenth Amendment, to cover the children of aliens. In one exchange, Cowan, in a preview of his later opposition to the Howard text, “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.”33

Source: James Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment

James Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment

James Ho explains why the expression “subject to any foreign power” is so often misunderstood and that the legislative history shows no support for the interpretation that this would exclude children born to alien parents. Note also that the Civil Right’s Act’s language applies to the child, not the parents and thus it appears to be similar in extent to the meaning of ‘subject to the jurisdiction” which by the fewest words excludes children born to parents who are invading military or foreign dignitaries. These are well known categories excluded from the Common Law definition.

The 1866 Civil Rights Act likewise offers no support. Enacted less than two months before the Senate adopted the Howard amendment, the Act guarantees birthright citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”32 Repeal proponents contend that all aliens are “subject to a[] foreign power,” and that this is relevant because the Fourteenth Amendment was ratified to ensure the Act’s validity.

But in fact, proponents and opponents of birthright citizenship alike consistently interpreted the Act, just as they did the Fourteenth Amendment, to cover the children of aliens. In one exchange, Cowan, in a preview of his later opposition to the Howard text, “ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull replied: “Undoubtedly. … [T]he child of an Asiatic is just as much a citizen as the child of a European.”33

Source: James Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment