Have I misread the legislative record on the Citizenship Clause?
In one of the earlier
discussions on the Citizenship Clause of the Fourteenth Amendment, I quoted from Howard Sutherland’s valuable August 2001
article at Vdare in which, along with many other quotes, he quoted Sen. Jacob Howard in the 1866 Senate debate clarifying what the Citizenship Clause meant. But VFR reader Ortelio thinks that I (and by implication Mr. Sutherland) have badly misread Sen. Howard’s statement, turning it into the opposite of what the Senator intended. According to Ortelio, Sen. Howard meant to exclude only children of foreign ambassadors from birthright citizenship, while giving birthright citizenship to all other children born of foreigners. Moreover, as unwelcome as Ortelio’s interpretation is, he has reasonable grounds for it.
Ortelio writes:
Does the statement by Sen. Howard in the 1867 debates really show that the citizenship clause was not intended to give citizenship to the children of aliens owing allegiance to a foreign state, whether illegally or legally present? To me it suggests the precise opposite. Here’s what you quoted him saying:
“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.”
Here’s what he means, I suggest. the status of citizen is to include all persons born in the US except just one class: persons who at the time of their birth were foreigners (that is, aliens) who, because they belonged to ambassadors etc., were not subject to US jurisdiction.
Your reading makes Howard’s sentence broken-backed, strains its syntax to the point of impossibility, and assumes that he was simply incompetent in stating the intention you suppose he had, namely to define the excluded class as all children born of citizens of foreign states.
I can’t imagine a lawyerly court, confronted with Sen. Howard’s clarification of the drafters’ intent, reaching any conclusion except that anchor babies are anchored by the Constitution.
The wider conclusion of your reflections is inevitable: the Constituion is at best ambiguous and, as experience shows, badly needs amendment.
LA replies:
I thank Ortelio for bringing this problem to my attention. At first I had trouble following him, then I understood. I seem to have misread Sen. Howard’s sentence. I took it as excluding from citizenship ALL children born in the U.S. who are “foreigners, aliens,” INCLUDING children born to the families of ambassadors. But now I see that the syntax suggests otherwise. The subordinate clause beginning “who belong” is exclusive. Howard only means to exclude from citizenship foreigners “who belong to the families of ambassadors or foreign ministers.”
But now that I’ve corrected myself, is my correction of myself correct? Is Ortelio’s way the only way to read the sentence? Let’s look at it again:
“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.”
Now, this could be read Ortelio’s way:
“… persons born in the United States who are foreigners … who belong to the families of ambassadors or foreign ministers…”
But it could also be read like this:
“…persons born in the United States who are foreigners, aliens, [and persons born in the United States] who belong to the families of ambassadors or foreign ministers…”
See the problem? The second “who” in the sentence could be seen as referring back to “persons born in the United States who are foreigners,” or it could also be seen as referring back to “persons born in the United States.” In the first reading, there is only one class of person described in the sentence: foreigners who belong to families of ambassadors. In the second reading, there are two classes of persons described in the sentence: (1) persons born in the United States who are foreigners, and (2) persons born in the United States who belong to the families of ambassadors.
With such ambiguity in Howard’s explanatory (!!!) remarks, there must be better statements in the legislative record than this. Fortunately there are. Mr. Sutherland writes:
Senator Reverdy Johnson of Maryland (the lone Democrat among the Senators quoted; all the others were Republicans in this Reconstruction Senate) was less certain than his colleagues that the proposed amendment clearly excluded Indians not taxed, but wished to clarify how American citizenship was created. He accepted that birthright citizenship for the children of U.S. citizens was natural and the appropriate norm, but worried that the proposed amendment might be read too broadly:
Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States. … I am, however, by no means prepared to say, as I think I have intimated before, that being born within the United States, independent of any new constitutional provision on the subject, creates the relation of citizen to the United States. [emphasis in original]
Johnson went on to quote from the Civil Rights Act of 1866[v], which had just passed. He considered that its wording better expressed what the Citizenship Clause was meant to achieve: “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.” [emphasis added] None of his colleagues, not least Senator Howard, the Citizenship Clause’s proponent, disagreed.
So, what do we have here?
(1) We have the language of the 1866 Civil Rights Act, the language of which is much clearer than that of the Amendment: “That all persons born in the United States and not subject to any foreign Power…” This eliminates any possible ambiguity. Persons “subject to any foreign power” means ALL foreigners, period.
(2) We have Sen. Johnson’s own formulation, repeating almost exactly the language of the Civil Rights Act and saying that this is what the Amendment means:
“Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States.”
And (3) we have Mr. Sutherland’s comment that none of the Senators disagreed with Sen. Johnson’s explanation, including Sen. Howard, the drafter of the Citizenship Clause.
It must therefore be understood that Sen. Howard, notwithstanding his terribly imprecise and ambiguous syntax, meant to exclude from birthright citizenship all persons born in the U.S. of foreign parents, including persons born of ambassadors’ families.
If Sen. Howard did not mean this, then the entire debate on the Citizenship Clause would be thrown into confusion and absurdity.
- end of initial entry -
Robert B. writes:
“HAVE I MISREAD THE LEGISLATIVE RECORD ON THE CITIZENSHIP CLAUSE? ”
Yes you did but in an “okay” way. But so does Ortelio—who most certainly has not read the full statement and may not really understand English punctuation—your field. I was about to point that out to you when I logged on to your site to get the quote. Had you or Sutherland continued to read on, Sen. Howard makes it quite clear what he means by that—which was the whole point of “The Slaughter-House Cases.”
Sen. Howard’s statement is thus:
“I do not propose to say anything on that subject except that the subject of citizenship has been so fully discussed in this body as not to need any further discussion.”
This means that there has already been much discussion at other times—this is the same “history” that Slaughter-House Cases refers to. They are all clear in their minds what it means.
Followed by:
“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.”
Okay, I take the above statement to mean something very clear and unambiguous. Because there is a comma between each noun, they are separate classes of people—he did not say ” foreigners and (italics mine) aliens who belong to the families of ambassadors or foreign ministers.” This is, in fact, how the majority viewed it in Slaughter-House Cases as well. This is an important distinction.
But let’s read on, where, in the case of Indians, Sen. Howard makes it quite clear that because of their “quasi foreign nation” status, they too do not have birth right citizenship. In fact, it would require yet another law making them citizens by birth. I think, if you study it, you will see that that is how they would have interpreted it in that day and age.
Sen. Howard says further on (specifically addressing the need for an amendment to the 14th to clarify “subject to the jurisdiction”):
“I hope that the amendment to the amendment will not be adopted. Indians born within the limits of the United States, and who retain their tribal relations, are not, in the sense of this 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.” (Italics are in the Congressional Record.)
Now, if in your argument (and others) you maintain that being subject to the laws and law enforcement of the United States is all that is required, then why wouldn’t Indians, who were most assuredly hanged for crimes and jailed, not? That, by the definition of the time, was not enough. And the only definition that matters is the one that the Congress and “The People” agreed to at that time.
Robert B. continues:
One other thing, I will have to find it, but there is actually a reference to Mexicans in Slaughter-House Cases, wherein it states that those who were living in territory taken over by the US, their children were also granted birth right citizenship. Of course it also pertains to Englishmen living in Oregon and Washington. But it specifically does not include those foreigners who moved there after it became US territory.
LA replies:
I continue to scratch my head at the dogmatic assertion that there is absolutely no ambiguity in the facial language of the Amendment, and no ambiguity in Sen. Howard’s statement. Yes, the meaning of the Citizenship Clause is plain, when seen in the context of the legislators’ supporting statements. But its meaning is not plain, when the Clause is taken by itself. It needs to be backed up by the legislative record. If this were not the case, the Constitutional atrocity of birthright citizenship for children of illegal aliens would never have come into existence; or, if it had come into existence, it would have been quickly overturned.
I say to Robert B., that it becomes harder for us to win the battle, if we refuse to see the weaknesses on our side (namely the ambiguity in the facial language of the Amendment) that helped get us into this mess in the first place, or, rather, the weaknesses that helped KEEP us in the mess once the Supreme Court in Wong Kim Ark had gotten us into it. If we see the weaknesses, we can address them. If we don’t see the weaknesses, then we put ourselves back in the very situation that allowed the distorted interpretation of the Clause to be effected and preserved in the first place.
Posted by Lawrence Auster at August 04, 2007 12:05 AM | Send