Part 4 - Birthright Citizenship and the 14th Amendmnet

Introduction
The Debate in the Senate - Sen. Howard's Previous Remarks
The Debate in the Senate – Sen. Wade’s Proposal
The Debate in the Senate - Sen. Howard’s Amendment 

It was at this point in the citizenship debate that Sen. Howard offered his amendment to Section 1.  He proposed that an additional sentence be added to the section to clarify once and for all exactly which people could claim the rights which were guaranteed to citizens of the United States.  The amended section would read:

“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.”
 
The new introductory sentence in this section is the primary focus of the current debate over birthright citizenship, and it was debated at length when it was first proposed to the Senate.  Sen. Howard initiated the debate by explaining what he intended for this sentence to accomplish.  In regards to this particular sentence, Sen. Howard said:

“I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”
 
There are several important claims made in this statement by Sen. Howard, and we will eventually consider all of them in the course of this analysis.  The claim that the first sentence of Section 1 merely expresses what was already “the law of the land,” “national law,” and “a great desideratum in the jurisprudence and legislation of this country” will be set aside for now since this claim was the primary topic of the Supreme Court’s ruling in United States v. Wong Kim Ark.  We will consider this claim when we begin our analysis of that opinion. 
 
The claim that this sentence incorporates a natural law will also be examined when we consider the ruling in United States v. Wong Kim Ark.  We will only note here that the natural law being referenced by Sen. Howard was the law of jus soli [the right of soil], and that this law has historically been the default law of citizenship throughout the history of Western civilization.  The competing law of jus sanguinis [the right of blood] has been embraced by various Western nations from time to time, but it was not the normal rule of citizenship.  We will discuss this further in our analysis of the Supreme Court’s opinion.
 
At this point, however, we will focus primarily on Sen. Howard’s claim that the citizenship described by the new first sentence of Section 1:
 
“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.”
 
There were two objections raised in the Senate against Sen. Howard’s view of citizenship, and we will look at both of those claims momentarily, but first, it is important for us to understand exactly what Sen. Howard was saying in this explanation of his view.  In our current era of television and internet, Americans often struggle to comprehend the language of the more literate periods of our own past.  We have an unfortunate tendency to read sentences from our past as if they were written in the same simplistic style as a tweet or a facebook post, and the complex sentence structures of the 19th century are often misunderstood by modern Americans.
 
In this particular instance, the tendency of modern American readers is to assume that Sen. Howard’s references to foreigners, aliens, ambassadors, and foreign ministers was given as a list separated by commas and a conjunction, but that is not how Sen. Howard designed his sentence. 

In English, when a sentence contains a list of items separated by commas and a conjunction, each item in that list can be read in the sentence by itself without any of the other items. Consider this sentence for example:
 
Bob is wearing his hat, coat, and boots.

Here we have a list of three things that Bob is wearing.

1. hat
2. coat
3. boots

Thus our original sentence could be restated as three separate and distinct sentences.

1. Bob is wearing his hat.
2. Bob is wearing his coat.
3. Bob is wearing his boots.

Now let's take Senator Howard's sentence and see if it can be restated as four separate and distinct sentences.

1. This will not, of course, include persons born in the United States who are foreigners.
2. This will not, of course, include persons born in the United States who are aliens.
3. This will not, of course, include persons born in the United States who are who belong to the families of ambassadors.
4. This will not, of course, include persons born in the United States who are foreign ministers.
 
It should be immediately obvious that the third sentence includes what looks like a typographical error.  The words “who are who belong” do not make sense as they are written.  In order for the third sentence to make sense, we would have to either remove the words “who are” entirely or insert the word “those” between the words “who are” and the words “who belong.”  Either of these changes would give the sentence a valid construction, but the fact that the third item in Sen. Howard’s supposed list does not make sense if the other items are removed demonstrates that Sen. Howard was not presenting his fellow senators with a list of items separated by commas and a conjunction.
 
Since Sen. Howard’s sentence does not fit the proper construction for a list of items separated by commas and a conjunction, we are left with the question of whether there is another grammatical construction that would fit the senator’s sentence.  The answer to that question is, Yes.  There is another type of syntax which would fit the construction of Sen. Howard’s sentence exactly. 
 
It is possible that the senator used the commas in his sentence to set apart the word “aliens” as an appositive instead of to separate items in a list.  Under this construction, the word “aliens” is an appositive of the word “foreigners,” and the clause “who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States” is an adjective clause modifying the word “foreigners.”  This is a common construction in literature, and it can be illustrated in the following sentence:

“The team consisted of several teenagers, adolescents, who belonged to the parents or guardians watching from the bleachers.”
 
In this example, just as in Sen. Howard’s statement, we have several terms and phrases which are separated by commas and a conjunction, but it is obvious that this is not a list of four different types of people on the team.  Even without knowing the context of this sentence, we can tell from the grammatical structure alone that the word “adolescents” is an appositive of the word “teenagers” and that the clause “who belonged to the parents or guardians watching from the bleachers” is an adjective clause modifying the word “teenagers.”  Sen. Howard’s statement uses the same construction with the same result.  In this example, the members of the team are the teenagers who belong to the guardians watching from the bleachers; and in Sen. Howard’s statement, the children born in America who do not receive birthright citizenship are the children who belong to the families of foreign ministers.

The Debate in the Senate - Complete Jurisdiction
The Debate in the Senate - More on Complete Jurisdiction
The Debate in the Senate - Sovereignty Over the Soil
U.S. vs. Wong Kim Ark - British Citizenship
U.S. vs. Wong Kim Ark - Justice Story on Allegiance
U.S. vs. Wong Kim Ark - The Claims of the Judicial Branch
U.S. vs. Wong Kim Ark - Rejection of Jus Sanguinis
U.S. vs. Wong Kim Ark - The Slaughterhouse Cases
U.S. vs. Wong Kim Ark - Subject to the Jurisdiction Thereof
More Posts Coming Soon...