Part 2 - Birthright Citizenship and the 14th Amendment

Introduction
The Debate in the Senate – Sen. Howard’s Previous Remarks
 
When the 14th Amendment was submitted to the Senate for discussion, it did not include the first sentence of Section 1.  The rest of the section was the same, but the first sentence was an amendment that was added by Senator Howard on May 30, 1866.  When he introduced this amendment to the Senate, Sen. Howard explained:

"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 every other class of persons."
 
This is the statement that most of the people debating the question of birthright citizenship have chosen to focus on, but to understand this statement, we must first look at what Sen. Howard said about citizenship during the Senate debates of the previous week.  When speaking about Section 1 prior to the addition of the first sentence, Sen. Howard admitted that “It is not, perhaps, very easy to define with accuracy what is meant by the expression, ‘citizen of the United States.’”  This difficulty is probably what led Sen. Howard to add the first sentence to Section 1, but he didn’t just stop with a mere observation.  He went on to explain exactly who he thought should and should not be considered as citizens of the United States.
 
To answer the question of who should be considered a citizen of the United States, Sen. Howard drew the attention of his fellow senators to the very lengthy history of court rulings on that subject by pointing out that “A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws.”  He then explained that people became citizens of the United States:
 
“By birth or by naturalization. They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States as were born in the country or were made such by naturalization.”
 
In this explanation, Sen. Howard seems to have been equating the phrase “born within the limits of the United and subject to their laws” with the phrase “born within the jurisdiction of every country.”  And he appears to have been equated those two phrases with the phrase “born in the country.”  At the very least, it is obvious that he used all three phrases to refer to the same class of people – ie: those who had become citizens by birth.  This gives us our first hint that the phrase “subject to the jurisdiction thereof” was intended to broaden the scope of birthright citizenship as much as possible rather than to restrict it.  Sen. Howard seems to have viewed the phrase “born within the jurisdiction” as saying essentially the same thing as the phrase “born in the country.”
 
That this is actually how Sen. Howard viewed this phrase can be seen in his explanation of the last two clauses of Section 1.  Those two clauses are:

“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.”
 
In regards to these two clauses, Sen. Howard claimed that they:
 
“disable a State from depriving not merely a citizen of the United States, but any person, whoever he may be, of life, liberty, or property without due process of law, or from denying to him the equal protection of the laws of the State.”
 
From this statement, it is obvious that Sen Howard viewed the phrase “any person within its jurisdiction” as an all-encompassing expression which applied to every person within the physical boundaries of the United States.  As the Senator concluded his comments on this section, he emphatically reinforced this view by proclaiming that the 14th Amendment:

“will, if adopted by the States, forever disable every one of them from passing laws trenching upon those fundamental rights and privileges which pertain to citizens of the United States, and to all persons who may happen to be within their jurisdiction. It establishes equality before the law, and it gives to the humblest, the poorest, the most despised of the race the same rights and the same protection before the law as it gives to the most powerful, the most wealthy, or the most haughty. That, sir, is republican government, as I understand it, and the only one which can claim the praise of a just Government. Without this principle of equal justice to all men and equal protection under the shield of the law, there is no republican government and none that is really worth maintaining.”

The Debate in the Senate - Sen. Wade's Proposal
The Debate in the Senate - Sen. Howard's Amendment
The Debate in the Senate - Complete Jurisdiction
The Debate in the Senate - More on Complete Jurisdiction
More Posts Coming Soon...