Today, most people believe that children of illegal aliens who are born in the United States are automatically conferred citizenship by virtue of the 14th Amendment. American politicians regularly pontificate on this topic, basing their positions on constitutional and humanitarian grounds. The issue is considered settled by the federal courts, which have announced continually that this passage was meant to grant citizenship to the children of all foreigners and aliens.

Indeed, most students of law and those interested in the Constitution are familiar with Section 1 of the 14th Amendment, which states the following:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the States wherein they reside.”

However, the actual verbiage in the text of the Constitution omits the understanding reached by both the federal Congress and the ratifying states.

While the amendment was being debated in Congress, United States Senator Jacob Howard, one of the chief architects of the “Citizenship Clause” and a passionate advocate of the amendment, was very clear about the actual definition:

“The first amendment is to section one, declaring that all “persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been 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”[1]

Another prominent advocate of the amendment, Senator Lyman Trumbull, corroborated this account:

“[T]he provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.”[2]

Senator Reverdy Johnson of Maryland agreed, remarking thatthe amendment says that citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born to parents who at the time were subject to the authority of the United States.[3]

Representative John Bingham of Ohio, who is largely considered the architect of the 14th Amendment, also confirmed this understanding:

“[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…”[4]

By the words of those who described the amendment to skeptics, only children born to American citizens can be considered as citizens of the United States by birthright.

Instead of granting citizenship to all children born to foreign aliens, the Citizenship Clause was clearly meant to reverse the Dred Scott decision. In the infamous 1857 case of Dred Scott v. Sanford, the Taney Court announced categorically that blacks, whether enslaved or free, could not be considered as American citizens. Therefore, they could not sue for a violation of rights and had no standing in federal court.

Of course, by the time of the 1890s, the federal courts had completely abandoned the original understanding of the Citizenship Clause. The majority opinion in the 1898 case of United States v. Wong Kim Ark announced that almost everyone born in the United States is a United States citizenship, regardless of whether they were born to foreigners or aliens. Throwing the original definition to the wind, the courts reinterpreted the Constitution beyond its intended scope.

Rather than seeking answers through the ratification debates, judges and political activists often share a penchant for substituting their own preference for the original understanding. Over time, the Constitution has been transformed into something that is desired over what is true. Through this process, the original axioms of the document have been tarnished by political degradation. This tendency should be resisted – it serves only to debase the document in order to achieve administrative goals.

Instead of relying on the courts to reach a correct conclusion regarding constitutional axioms, Thomas Jefferson wrote that the Constitution and its amendments had to be accepted “according to the true sense in which it was adopted by the States, that in which it was advocated by its friends.”[5] If there was ever a dispute, Jefferson wrote, “let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.”[6]

On the same foundation, James Madison echoed this sentiment:

“The legitimate meaning of the Instrument must be derived from the text itself; or if a key is to be sought elsewhere, it must be not in the opinions or intentions of the Body which planned & proposed the Constitution, but in the sense attached to it by the people in their respective State Conventions where it recd. all the authority which it possesses.”[7]

Jefferson and Madison always maintained that the Constitution and its amendments had to be interpreted through the lens of the original understanding reached by the endorsing states, not through the whims of the federal courts decisions. Simply put, federal judges can reach an incorrect conclusion and often fail to acknowledge the context of each amendment’s ratification. Both men realized that this oversight would turn the Constitution into an inane and irrelevant instrument.

Despite the words and actions of federal judges, the Citizenship Clause of the 14th Amendment did not intend to grant citizenship to children born to foreigners and aliens.


[1] Congressional Globe, 39th United States Congress, 1866, 2890.

[2] Ibid, 2893.

[3] Ibid.

[4] Ibid, 1291.

[5] Thomas Jefferson to Elbridge Gerry, January 26, 1799.

[6] Thomas Jefferson to William Johnson, June 12, 1823.

[7] James Madison to Thomas Ritchie, September 15, 1821.

Dave Benner

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