When the Constitution was drafted in Philadelphia in 1787, its protections were not extended to African Americans and other non-white peoples living here, nor were immigrants and the children of immigrants fully protected by it. That inclusion of the broader populace only came in 1868 with the ratification of the Fourteenth Amendment.1
The Fourteenth Amendment was not just another amendment making some limited change in the Constitution. It was a revolutionary extension of liberty to millions of people who had been born in this country, but who were not white, and to millions more who had immigrated here as well as to their children.2
The Fourteenth Amendment was passed after the most traumatic decade in American history. The 1850s had been a time when the attack on the idea of American equality was at its worst. In the Supreme Court’s Dred Scott decision, Chief Justice Roger Taney had written that a Black man had no rights that a “White man was bound to respect.” At the same time, a movement called the Know Nothings sought to restrict the citizenship rights of immigrants and their children. The fury of the Know Nothings was directed at German and Irish, two groups of immigrants who seemed incapable of assimilation.3
One Know Nothing Congressman wrote of the Irish and Germans that “Large masses of foreigners are cast yearly on our shores, ignorant of our laws and language, and still greater strangers to the moderation and self-control… Experience has demonstrated that the great mass of European immigrants are unfit recipients of American citizenship…”4
This 19th Century cartoon depicts Irish and Chinese immigrants devouring Uncle Sam.
Abraham Lincoln, a rising politician at the time, was so disgusted with the Know Nothings, that he wrote:
Our progress in degeneracy appears to me to be pretty rapid. As a nation, we began by declaring that “all men are created equal.” We now practically read it “all men are created equal, except negroes” When the Know-Nothings get control, it will read “all men are created equal, except negroes, and foreigners, and Catholics.” When it comes to this I should prefer emigrating to some country where they make no pretense of loving liberty—to Russia, for instance, where despotism can be taken pure, and without the base alloy of hypocrisy. 5
The onset of the Civil War in 1861 changed everything. A large group of native-born Southern White men rose in revolt against the United States to try to create a slave-based republic called the Confederacy.6
The army called up by Lincoln to suppress the Confederates would be the most diverse in history up to that time. A quarter of the men in the United States army were immigrants, and nearly 10% were Blacks. More than a third of the men who saved the Union were immigrants or people of color. Some black Canadian volunteers were both.7
When the Confederacy was defeated after four years of bloody war, it should have been impossible to deny the citizenship rights of Blacks and immigrants, but several Southern states passed laws prohibiting freed slaves from taking their place as citizens of the land that they were born in. In response, a year after Lincoln was assassinated by members of a pro-Confederate conspiracy, Congress took action to craft and pass the Fourteenth Amendment.8
The new amendment would do a lot over the century and a half after its passage. It would be used to extend the protections of the Bill of Rights to citizens discriminated against by their state governments. It also ended the Dred Scott doctrine that Blacks had no rights at all.9
In 2016, you will sometimes hear people say that the Fourteenth Amendment was only meant to apply to freed slaves. The legislative history of the amendment, as well as subsequent judicial decisions tell us that this is just not so. The Fourteenth Amendment has been used in many different types of cases. George Bush became president in 2001 because of a Supreme Court ruling based on the Fourteenth Amendment and the Defense of Marriage Act barring Federal recognition of same-sex marriages was overturned by the Supreme Court in a decision founded on the same amendment. Neither case involved freed slaves.10
Section 1 of the Fourteenth Amendment contains the “Citizenship Clause.” This crucial section defines who is protected as a citizen of the United States. It grants the protection of citizenship to “all persons born or naturalized in the United States.” Someone is naturalized if the person immigrated to America, later filed an application for citizenship, was approved, and then took the oath of citizenship. Former slaves, almost of whom were born in the United States, were not “naturalized” citizens. If the framers of the Fourteenth Amendment wanted its protections to only apply to freed slaves, they would not have inserted the phrase “naturalized” in the text. It is clear that naturalized citizens were fully contemplated as being under the protection of the amendment.11
The inclusion of naturalized citizens in the amendment was a recognition that once excluded immigrant groups had supplied hundreds of thousands of soldiers to the Union army. Just a few years before the war, states like Maine and Massachusetts had debated laws to deprive naturalized citizens of the right to vote, hold office, or serve in the government’s employ. This would no longer occur12
The citizenship clause reads, as it applies to immigrants: “all persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.” So the children of immigrants are United States citizens if they are born here.13
The development of the Citizenship Clause can be found in the earlier debate over the Civil Rights Act of 1866. The Civil Rights Act was passed to enforce the Thirteenth Amendment which abolished slavery. Anti-Black Congressmen tried to undermine the Civil Rights Act by exploiting the fears of white voters of a foreign “invasion” by Chinese immigrants. They argued that in recognizing the citizenship of “all born in the United States,” the Act would even give citizenship to the children of the Chinese laborers working in California. These Chinese immigrants were barred by law from ever becoming American citizens, so how, they asked, could their children be citizens simply by being born here.14
In the two decades after the Civil War, hostility to Chinese immigrants grew. In California the Workingman’s Party was formed to further nativist policies. Ironically it attracted many Irish immigrants who had been themselves the targets of nativists in the 1850s. The Irish-born leader of the party, Denis Kearney, combined “communistic principle” and a hatred of the Chinese into a potent political force.
The applicability of this section of the Amendment to the children of immigrants was pointed out by its leading opponent, President Andrew Johnson.The president criticized similar citizenship language in the Civil Rights Act saying that he vetoed the bill because it would turn “the Chinese of the Pacific states,…the people called Gipsies, as well as the entire race designated as blacks” into citizens as long as they were born in the U.S.President Johnson asked; “Is it sound policy to include our entire colored population, and all other excepted classes [as] citizens of the United States.” The “excepted classes” were the children of non-white immigrants.15
When the Fourteenth Amendment was debated on the floor of the Senate soon after the Civil Rights Act veto, Senator Edgar Cowan objected saying; “I am unwilling on the part of my state to give up the right of expelling…people who invade her borders, who owe her no allegiance, who recognize no authority in her government, who pay no taxes, who never perform military services, who settle wherever they go. I mean the Gypsies.” The Senator was also appalled that the children of the Chinese would be citizens under the amendment, and he warned that the Chinese and their offspring would one day annex California to China.16
John Conness, an Irish immigrant and the Senator from California, assured the Senate that his state was not about to become part of the Chinese Empire. He also joked that while he had few encounters with Gypsies, he had certainly heard a lot about them in Congress since the Citizenship Clause had been introduced. Conness was explicit that the clause covered the children of immigrants saying; “The proposition before us, I will say, Mr. President, relates simply to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. . . . I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.”17
Chinese immigrants had formed most of the labor force building the Transcontinental Railroad’s Western section in the 1860s.
The Supreme Court addressed the meaning of the Citizenship Clause during a tumultuous time for immigrants. By the late 1800s, many Chinese had been stripped of their legal status by the Chinese Exclusion Acts. Chinese who could not find a “white man” to sign an affidavit on their behalf faced deportation without recourse to review by a court. With this large new class of Chinese undocumented immigrants, conservatives argued that the children of the Chinese were not citizens.18
In 1898, the Supreme Court decided the issue of whether the children of immigrants are citizens of the United States. In U.S. v. Wong Kim Ark it ruled that with the exceptions of the children of “Wild Indians,” diplomats, and a small class of others, all children born in the United States are citizens of this country. In its decision, the Court made some nasty remarks about the Chinese, whom it described as an “obnoxious” race, but the Court said that if it did not adopt this rule, it would be ignoring the plain meaning of the Fourteenth Amendment. It pointed out that without this rule, the children of Irish, German, and other European immigrants might also lose their citizenship.18
At the time the decision was written, the United States had had undocumented Chinese immigrants living here for nearly two decades. The Court was aware of this fact, but it still chose not to exclude the children of undocumented Chinese from citizenship.19
While politicians argue that the requirement that the children be “subject to the jurisdiction” of the United States excludes the children of the undocumented, in fact it only excludes the children of diplomats, soldiers in hostile armies, and what Congress referred to as “wild Indians.” Whatever modern politicians say, the Birthright Citizenship of the children of undocumented immigrants has deep roots, going back 149 years to the passage of the Fourteenth Amendment and a century to the Supreme Court’s decision in the Ark case.20
The Civil War brought a new birth of freedom, and the Fourteenth Amendment ensures that everyone born here can enjoy that freedom.
Sources (Under Construction):
1. American Founding Son: John Bingham and the Invention of the Fourteenth Amendment by Gerard N. Magliocca published by NYU Press. (2013) Kindle Edition; Democracy Reborn: The Fourteenth Amendment and the Fight for Equal Rights in Post-Civil War America Garrett Epps published by Henry Holt and Co.. Kindle Edition; Becoming American Under Fire: Irish Americans, African Americans, and the Politics of Citizenship During the Civil War by Christian G. Samito published by Harvard University Press (2009); The Fourteenth Amendment and the Priviledges and Immunities of American Citizenship by Kurt Lash published by Cambridge University Press (2014); No State Shall Abridge: The Fourteenth Amendment and the Bill of Rights by Michael Kent Curtis published by Duke University Press (1990); The Journal of the Joint Committee of Fifteen on Reconstruction. 39th Congress, 1865-1867 by Benjamin B. Kendrick, published by Columbia University Press (1914); Andrew Johnson’s letter to Benjamin B. French, the commissioner of public buildings (8th February, 1866); Robert Dale Owen: A Biography by Richard William Leopold published by Harvard University Press (1940); The Civil Rights Act of 1866; Veto of the Civil Rights Bill by Andrew Johnson March 27, 1866; The Journal of the Joint Committee of Fifteen on Reconstruction. 39th Congress, 1865-1867 by Benjamin B. Kendrick, published by Columbia University Press (1914) pp. 50-51; The Civil Rights Act of 1866; Veto of the Civil Rights Bill by Andrew Johnson March 27, 1866.
2. Just some of the cases interpreting the 14th Amendment appear in this list from Cornell University.
3. Scott v. Sandford (The Dred Scott Decision) 60 US 393 (1856)
4. The Origin, Principles and Purposes of the American Party by Henry Winter Davis (1855) p. 13
5. Letter of Abraham Lincoln to Joshua Speed August 24, 1855.
8. Senator Ben Wade, described the confusion over the citizenship question in his May 23, 1866 speech in support of the 14th Amendment; “the word “citizen” . . . is a term about which there has been a good deal of uncertainty in our Government. The courts have stumbled on the subject, and even here, at this session, that question has been up and it is still regarded by some as doubtful. I regard it as settled by the civil rights bill, and, indeed, in my judgment, it was settled before. I have always believed that every person, of whatever race or color, who was born within the United States was a citizen of the United States; but by the decisions of the courts there has been a doubt thrown over that subject; and if the Government should fall into the hands of those who are opposed to the views that some of us maintain, those who have been accustomed to take a different view of it, they may construe the provision in such a way as we do not think it liable to construction at the time, unless we fortify and make it very strong and clear.” CONG. GLOBE, 39TH CONG., 1ST SESS. 2768-2769 (1866) (remarks of Sen. Wade).
10. The Citizenship Clause: A ‘Legislative History’ by Garrett Epps, American University Law Review, Vol. 60, p. 331, 2011 (2011) pp.332-336
11. Senator Howard, who wrote the language of the Citizenship Clause, is sometimes cited as not intending to include within its protections children of aliens. In fact, his statement in debate was that children who are aliens because their parents were diplomats are not included in the Amendment’s definition of citizens. Here is his full statement on this issue; “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…” CONG. GLOBE, 39TH CONG., 1ST SESS. 2890 (1866) (remarks of Sen. Howard).
13. CONG. GLOBE, 39TH CONG., 1ST SESS. 2890 (1866) (remarks of Sen. Howard). Senator Jacob Howard of Michigan, authored the language of the Citizenship Clause. He explained it before Congress. Howard said the phraseology was; “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.”
14. The Citizenship Clause: A ‘Legislative History’ by Garrett Epps American University Law Review, Vol. 60, p. 331 (2011) pp. 350-352.
15. The Civil Rights Act used what was considered more restrictive phraseology “[A]ll persons born in the United States, and not subject to any foreign Power, are hereby declared to be citizens of the United States . . . .” Even this seemingly restrictive version would grant citizenship to virtually all children of immigrants. According to the leading authority on the legislative history of the Citizenship Clause Professor Garrett Epps, the principal author of the Civil Rights Act Senator Lyman 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.”” The Citizenship Clause: A ‘Legislative History’ by Garrett Epps American University Law Review, Vol. 60, p. 331, 2011 (2011). According to Epps, those children who were “subject to a foreign power” were of 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.” Pp. 350-353.
16. CONG. GLOBE, 39TH CONG., 1ST SESS. 2890–91 (1866) (remarks of Sen. Cowan).
17. CONG. GLOBE, 39TH CONG., 1ST SESS. 2890–91 (1866) (remarks of Sen. Conness).] Conness was not the only senator to address this issue. Prominent Republican Senator Ben Wade also discussed it on the floor of the Senate. According to legal scholar and historian Garrett Epps; “An instructive colloquy ensued between Wade and Senator William Pitt Fessenden of Maine, chair of the Joint Committee on Reconstruction. As reported by Wade, “[t]he Senator from Maine suggests to me, in an undertone, that persons may be born in the United States and yet not be citizens of the United States. Most assuredly they would be citizens of the United States unless they went to another country and expatriated themselves . . . .” Fessenden then suggested the very question that concerns us today: “Suppose a person is born here of parents from abroad temporarily in this country.” Wade answered, The Senator says a person may be born here and not be a citizen. I know that is so in one instance, in the case of the children of foreign ministers who reside “near” the United States, in the diplomatic language. By a fiction of law such persons are not supposed to be residing here, and under that fiction of law their children would not be citizens of the United States, although born in Washington. I agree to that, but my answer to the suggestion is that that is a simple matter, for it could hardly be applicable to more than two or three or four persons; and it would be best not to alter the law for that case. The Citizenship Clause: A ‘Legislative History’ by Garrett Epps American University Law Review, Vol. 60, p. 331, 2011 (2011) pp. 354-355. Original quote from CONG. GLOBE, 39TH CONG., 1ST SESS. 2768 (1866) (remarks of Sen. Wade).
18. United States v. Wong Kim Ark, 169 U.S. 649 (1898)
19. United States v. Wong Kim Ark, 169 U.S. 649 (1898)
20. For a modern discussion of birthright citizenship for the children of undocumented immigrants see this article by conservative George Mason University Law Professor Ilya Somin The constitutional debate over birthright citizenship.
Professor Michael Ramsey of the University of San Diego School of Law has an accessible article explaining why the children of undocumented immigrants are “subject to the jurisdiction” of the United States. Originalism and Birthright Citizenship
Ramsey also has a short blog post on the subject Originalism and Birthright Citizenship
Professor Garrett Epps of the University of Baltimore School of Law is the leading expert on the legislative history of the Citizenship Clause. His scholarly paper The Citizenship Clause: A ‘Legislative History’ American University Law Review, Vol. 60, p. 331, 2011 (2011) is available online for free as a download.
The Immigrants’ Civil War is a series that examines the role of immigrants in our bloodiest war. Articles will appear twice monthly between 2011 and 2017. Here are the articles we have published so far:
1. Immigrant America on the Eve of the Civil War – Take a swing around the United States and see where immigrants were coming from and where they were living in 1861.
2. 1848: The Year that Created Immigrant America – Revolutions in Europe, famine and oppression in Ireland, and the end of the Mexican War made 1848 a key year in American immigration history.
3. Carl Schurz: From German Radical to American Abolitionist– A teenaged revolutionary of 1848, Carl Schurz brought his passion for equality with him to America.
5. …And the War Came to Immigrant America -The impact of the firing on Fort Sumter on America’s immigrants
10. Immigrant Day Laborers Help Build the First Fort to Protect Washington-The Fighting 69th use their construction skills.
12. Immigrants Rush to Join the Union Army-Why?– The reasons immigrants gave for enlisting early in the war.
17. Immigrant Regiments on Opposite Banks of Bull Run -The Fighting 69th and the Louisiana Tigers
39. A German Regiment Fights for “Freedom and Justice” at Shiloh-The 32nd Indiana under Col. August Willich.
40. The Know Nothing Colonel and the Irish Soldier Confronting slavery and bigotry.
43. Union Leader Ben Butler Seeks Support in New Orleans-When General Ben Butler took command in New Orleans in 1862, it was a Union outpost surrounded by Confederates. Butler drew on his experience as a pro-immigrant politician to win over the city’s Irish and Germans.
49. The Irish Brigade Moves Towards Richmond-The Irish brigade in the Peninsula Campaign from March 17 to June 2, 1862.
50. Peninsula Emancipation: Irish Soldiers Take Steps on the Road to Freedom-The Irish Brigade and Irish soldiers from Boston free slaves along the march to Richmond.
54. Making Immigrant Soldiers into Citizens-Congress changed the immigration laws to meet the needs of a nation at war.
60. Emancipation 150: “All men are created equal, black and white”– A German immigrant reacts to the Emancipation Proclamation
106. The Draft Riots End in a Sea of Blood-July 14-15, 1863.
157. A Scottish Socialist and a German General Work to Help Slaves Become Freedpeople-Robert Dale Owen, Carl Schurz and the founding of the Freedmen’s Bureau.
169. The 14th Amendment, the German Immigrant Carl Schurz, and the Assault on White Superiority Part of The Coming of the 14th Amendment
Immigration Vacation -Civil War Sites