Birthright Citizenship Clause Cowriter Stated It Does not Embrace Aliens

On Friday the Supreme Court agreed to review a case that could finally force a long, overdue reckoning with how the 14th Amendment’s citizenship clause has been interpreted for more than a century. The case arises from leftist challenges to President Donald Trump’s executive order to end birthright citizenship.

Democrats have responded to the Supreme Court’s decision to hear the case as expected.

“For more than 150 years, our Constitution has spoken plainly: everyone born on American soil has an equal claim to the rights of citizenship from their first breath,” Congressman Raja Krishnamoorthi posted.

New York Attorney General Letitia James posted: “Birthright citizenship is a fundamental right of our Constitution, and it’s under attack by the Trump administration.”

Former California Rep. Katie Porter said: “Birthright citizenship is literally written into the Constitution. There is no debate to be had: if you are born here, you are a citizen.”

But “birthright citizenship” is not “literally written into the Constitution,” and the framers of the amendment would likely be aghast to see how their work has been exploited by the left to facilitate and legitimize a mass invasion.

The 14th Amendment was written to guarantee citizenship to formerly enslaved Americans and their children. To that end, its first sentence reads: “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.” But it surely was not intended to be a blanket citizenship grant.

Sen. Benjamin Wade introduced the citizenship clause on May 23, 1866, believing that the amendment needed a clear definition of citizenship because the broader guarantees of the 14th Amendment depended on it. Wade originally proposed using this language: “persons born in the United States or naturalized by the laws thereof.”

Such language may have lent slightly more credence to the left’s claim that anyone born here is a citizen. But that’s not what the amendment says. In fact, Sen. Jacob Howard, upon receiving Wade’s proposal, added the “subject to the jurisdiction” clause.

As Edward Erler points out in his book The United States in Crisis: Citizenship, Immigration, and the Nation State, the addition meant “at a minimum, that not all persons born in the United States were automatically citizens.”

During the debate on the clause, Howard said during opening remarks that “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,” Howard continued. “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.”

As Erler explains, Howard was referring to the Civil Rights Act of 1866 when he said the citizenship clause was “simply declaratory” of the “law of the land already.”

Sen. Lyman Trumbull, who co-authored the 13th Amendment, authored the Civil Rights Act of 1866. The act specified “that all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, and hereby declared to be citizens of the United States.”

As Erler points out, that means that Congress, just prior to ratifying the 14th Amendment and its citizenship clause, was “committed to the view that foreigners (and aliens) were not subject to birthright citizenship.”

As Erler anticipated, the left has argued that Howard meant to only include “families of ambassadors or foreign ministers” when he used the wording “who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

But “if so,” Erler argues, “this would be an extraordinarily loose way of speaking: ambassadors and foreign ministers are foreigners and aliens and their designation as such would be superfluous.” Erler argues the commas following “foreigners” and “aliens” “suggest a discrete listing of separate classes of persons excluded from jurisdiction.”

As for the omission of the explicit reference to Indians in the 14th Amendment, as compared to the Civil Rights Act, Howard said in a separate instance that there would be no need to include Indians in the clause because “gentleman cannot contend that an Indian belonging to a tribe, although born within the limits of a State, is subject to the full and complete jurisdiction.”

Erler also argues that the framers of the 14th Amendment’s citizenship clause would never have intended children of illegal aliens to become automatic citizens because of natural law.

As Erler notes, Howard said “everyone born in the U.S. and subject to its jurisdiction ‘is by virtue of natural law and national law a citizen of the United States.’”

“The reference to ‘natural law’ would have been understood by the members of the Senate as a clear allusion to the Declaration of Independence and social compact,” Erler argues. “The architectonic theme of the Republicans in the thirty-ninth Congress was to complete the founding by implementing the principles that the framers were compelled to postpone.”

The point about “natural law” and the social compact is central. As Erler points out, the framers of the 14th Amendment saw it as completing the work of the founders, whose political theory rested on the social compact, the idea that a people must consent to form a political community. Membership in that community, like citizenship, flows from that mutual agreement.

But such consent does not exist if someone enters the country illegally. An individual who breaks into the country has, by definition, not been admitted into the social compact, which means the American people did not agree to extend membership to them. To assume, then, that their children are somehow entitled to automatic citizenship and membership into our social compact makes a mockery of the very idea of a social compact.

The modern claim that the 14th Amendment guarantees automatic citizenship to the children of people who break into the country would have been unimaginable to the men who wrote it. Yet for decades this distortion has been used to turn the citizenship clause into a tool for undermining the social compact and eroding American culture.

Brianna Lyman is an elections correspondent at The Federalist. Brianna graduated from Fordham University with a degree in International Political Economy. Her work has been featured on Newsmax, Fox News, Fox Business and RealClearPolitics. Follow Brianna on X: @briannalyman2