The sticky wicket that is Section I of the Fourteenth Amendment

Hey, all of you out there who shout "bingo!" as you point to the phrase "and subject to the jurisdiction thereof," I'm right there with you.

But Howard Foster, writing at NRO today, says"not so fast."

As everyone knows from the history of that era, Congress passed the amendment to enfranchise the former slaves in the South. The first sentence of the amendment states that “all persons born or naturalized in the United States and subject to the jurisdiction thereof [emphasis mine] are citizens of the United States.” I’ve read the congressional debates over that sentence, and its meaning is ambiguous. Yes, as Edward Erler pointed out Wednesday in a piece in National Review, Senator Jacob Howard (R., Mich.), the amendment’s sponsor, said “foreigners” were excluded from citizenship. But, in response to a question from Democratic senator John Conness of California, an Irish immigrant, as to whether the children of Chinese laborers, then pouring into his state, would be citizens from birth, Senator Lyman Trumbull (R., Ill.), the chairman of the Judiciary Committee, which had approved it, said they would be. Conness voted for the amendment based on that assurance, but his support for the Chinese immigrant community, then very unpopular in California, cost him reelection. The only group that everyone seemed to agree would be excluded were Indians living on reservations.

Judicial conservatives are usually skeptical of legislative history in interpreting statutes. And this is a perfect example of why that skepticism is just. As we’ve seen, senators made inconsistent statements about the amendment. Then there is the additional question of why, if Senator Howard really believed his amendment would exclude “foreigners,” he failed to say so in the text? By 1868 members of Congress had almost a century of experience with activist federal judges disagreeing over the meaning of several provisions of the Constitution: the Necessary and Proper Clause, the meaning of “freedom of the press,” and of course, the Due Process Clause of the Fifth Amendment, which was incorporated into the second sentence of the new 14th Amendment. 

Senator Howard could have worded his amendment any way he wanted. Consider that the 1866 Civil Rights statute, enacted two years before the 14th Amendment and largely the work of Howard and Trumbull, began with this statement: “All persons born in the United States and not subject to any foreign power . . . are citizens.” That clearly excludes aliens. But that phrase was replaced with the more ambiguous “subject to the jurisdiction thereof” in the amendment. Why? Did the amendment mean something broader? It would seem so.

Subsequent Supreme Court cases demonstrated that there is an element of mystery as to Senator Howard's thinking, leading to more than one school of thought about where he was coming from.  Myself, I think that if we're going to be guided by what the author of a law has committed to written word, we have to conclude that he meant that that children born to parents who still had allegiance to foreign governments were in fact not US citizens.

I like Foster's recommendation to solve this matter with regard to the current illegal-alien flood and the offspring that result. Pass a law defining those offspring as definite foreigners, and word it in such a way as to make responses to court challenges as airtight as possible.

But this situation clearly shows that bingo moments in Constitutional parsing can always be countered with gotcha moments.

When crafting rules by which Americans are going to have to live, let us always write as plainly as possible.