Part 4

Birthright Citizenship: Misquotes, Mistakes, and Misleading Evidence Riddle Erler’s Case

Garrett Epps

From at least the time of Wong Kim Ark (1898) until the 1980s, when the issue of undocumented immigration became politically charged, almost no one seriously questioned that the Citizenship Clause means what it says: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” Every child born in the United States today—with the exception of children of diplomats covered by diplomatic immunity—is thus an American citizen by right of birth. This meaning conforms to the text of the clause and to the legal meaning of “subject to the jurisdiction” of the United States.

At the outset of this debate, Professor Erler advanced a radically different interpretation of the Citizenship Clause, which he shares with some other citizenship scholars: that the clause covers only children of those lawfully present in the United States, because, he says, only they are in a special technical sense “subject to the jurisdiction.”

This, he states, was “the intention of the framers.” If so, that intention does not appear in the language. Erler thus has the burden of proving the validity of this special technical interpretation.

As we assess his evidence, bear in mind that Erler and I agree on one thing: “It is,” as he says, “necessary to study the debates.”

“Studying the debates,” of course, means reading them thoroughly, understanding the political conceptions of the speakers, researching the thought and careers of the leading legislative players, and placing their remarks in the context of the ongoing political struggle over Reconstruction. The reader, who may perhaps lack time to study the Congressional Globe in detail, must decide which of us has “studied the debates” more thoroughly.

Evidence against Erler

When I corrected one of Erler’s factual mistakes about the debates in my last article, his response was huffy: “I don’t think it is necessary to quarrel here with Epps about whether Ben Davis or Jacob Howard was the actual author of the text. Both were members of the Joint Committee on Reconstruction.”

What does this tell us about Erler’s “study [of] the debates”? Point one: No individual named “Ben Davis” served in the Thirty-Ninth Congress. No individual named “Ben Davis” or “Benjamin Davis” has ever served in the United States Congress at any time. The individual to whom I referred—by full name—in my first reply to Erler was Senator Benjamin Wade of Ohio.

Was this, then, just a slip of the pen? Consider that Erler also stated that both Senator Jacob Howard of Michigan and “Ben Davis” were “members of the Joint Committee on Reconstruction.”

Point two: Jacob Howard was a member of the joint committee; Benjamin F. Wade (the individual Erler has misnamed “Davis”) was not. “Bluff Ben” Wade was one of the most important Radical Republican leaders in the Thirty-Ninth Congress—and indeed, as President pro tempore of the Senate in the Fortieth Congress, he came within one vote of becoming President of the United States when Congress impeached and tried President Andrew Johnson. Anyone familiar with the historical record not only would recognize his name but would know something about his career and committee memberships. Membership on the joint committee in particular was an important fact about members of the Thirty-Ninth Congress, and knowing the committee’s membership is crucial to understanding how Congress deliberated on the committee’s major handiwork, the Fourteenth Amendment.

These errors suggest that Erler has not taken the time to actually “study the debates.”

That suspicion is strengthened by Erler’s subsequent claim that “not one of these distinguished politicians ever said that ‘subject to the jurisdiction’ meant merely subject to the laws or the courts.” As evidence, he cites an edited quotation from Senator Lyman Trumbull:

As Lyman Trumbull, chairman of the Senate Judiciary Committee, remarked, “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else … subject to the complete jurisdiction of the United States.”

The source of this partial quotation is the Congressional Globe, Thirty-Ninth Congress, first session, p. 2893, May 30, 1866. (The original can be accessed here.) As you can see, Erler has edited it heavily (the parts he included are in italics; the omitted parts I consider relevant are underlined):

What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them. If we want to control the Navajoes [sic], or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense? Is it not understood that if we want to make arrangements with the Indians to whom he refers we do it by means of a treaty?

Erler flatly asserted that “not one of these distinguished politicians ever said that ‘subject to the jurisdiction’ meant merely subject to the laws or the courts.” He made that assertion relying on an edited version of a speech in which Trumbull in fact said exactly that in so many words: “That is what it means. Can you sue a Navajoe Indian in court?”

This definition—that “subject to the jurisdiction” meant amenable to service and adjudication in U.S. courts—was acknowledged by the proponents of the clause in the Senate debate in which it was framed and adopted. This definition excluded (1) children of foreign diplomatic and consular personnel, and (2) children of tribal Indians. It included all other children born in the United States. It was, in short, exactly the interpretation that has been unquestioned since at least the decision in Wong Kim Ark. It is the interpretation that arises from “studying the debates.”

Erler also relies on another quote, from Representative John Bingham, to the effect that American citizenship extended by pre-existing law to “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty.” Erler states that Bingham made this statement “in support of the citizenship clause.”

He did not.

The Bingham statement was made on March 9, 1866—seven weeks before the Fourteenth Amendment was drafted and nearly three months before citizenship language was introduced into the draft amendment on the Senate floor. Bingham was speaking in reference to a different measure: the Civil Rights Act of 1866. This was a statute—not a constitutional amendment—that relied on Congress’s naturalization power—not the Article V amendment process—and used different citizenship language—“all persons born in the United States and not subject to any foreign power,” not all those “subject to the jurisdiction.” (Follow the Congressional Globe link here, read Bingham’s speech on 1290–91, and judge for yourself whether Erler has accurately cited the context.)

Bingham’s remarks may have some general relevance to the concept of “allegiance,” but to claim that these remarks were made in the context of “the citizenship clause” or that they discuss its language indicates what can only be considered an extraordinarily hasty “study of the debates.”

Irrelevant Evidence

In truth, the debates seem not to interest Erler very much: Most of his argument centers around his claim that “to understand how the framers of the Fourteenth Amendment saw citizenship, it is necessary to take a step back.” He steps quite far back—back to James Madison and the “social compact,” to Enlightenment ideas of citizenship by consent, to quotations from Chief Justice John Marshall, to broad generalities about the Framers, and to discussions of the pre-Revolutionary common law of England.

Back to everything but the debates.

Erler himself concedes that we are discussing the intent of the lawmakers who framed the Citizenship Clause in 1866. Quotes from eighteenth-century philosophers cannot trump the words of the nineteenth-century “framers of that notable instrument” themselves.

Erler has not produced not one shred of credible evidence from the debates that the Citizenship Clause means something other than what it says or that the “framers of that notable instrument” secretly intended something other than what they wrote. (Nor does one other piece of evidence he cites as supporting his position, the Supreme Court’s decision in Elk v. Wilkins. In Elk, the Court held that a Native American born as a member of a tribe, and leaving tribal jurisdiction afterwards, was not a birthright citizen, “no more … than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States, of ambassadors or other public ministers of foreign nations.” This is precisely the meaning of “subject to the jurisdiction” that I cited in my first response to Erler and was cited by the proponents of the amendment in the debates. The Elk Court did not hold that the child of a non-tribal Indian, born off the reservation after parental renunciation, was not a birthright citizen—which would contradict the meaning I support. Erler’s claim that Elk in some way contradicts my reading, or supports his, is indefensible.)

The Clear Meaning of the Clause

As a matter of text, structure, and history, the clear meaning of the Citizenship Clause is, as Benjamin F. Wade said when he introduced the first citizenship language, that “every person, of whatever race or color, who was born within the United States [is] a citizen of the United States,” subject to the two exceptions noted above.

Let us begin with the text. “Interpreting the Constitution in any way that renders part of it without meaning is simply tampering with the fundamental law,” Erler says. “Every part of the Constitution must have meaning, even those parts we may not like.” The implication is that I read the “subject to the jurisdiction” language as “without meaning.” Erler here directly misstates my argument; I have said from the beginning that “subject to the jurisdiction” means today, as it meant in 1866, that children of foreign diplomatic and consular personnel are not covered by the clause. (Indian citizenship was secured by the Snyder Act in 1924.)

Next, consider the structure. The inclusive definition of citizenship in the first sentence of the amendment (the Citizenship Clause) is keyed to the sweeping language of the Privileges or Immunities Clause, and that central provision then spreads out to guarantee to citizen and non-citizen alike both “due process of law” and “the equal protection of the laws.” Nowhere in section 1—nowhere in the entire Amendment—do we read any language suggesting a desire to create a republic dominated by a hereditary elite, a two-tier society in which significant numbers of American-born children are excluded from citizenship and its privileges or immunities.

Finally, the history. The intellectual history of the anti-slavery movement centers around broad, paramount national citizenship acquired by birth. That definition was already the legal policy of the United States by an 1862 opinion of the attorney general. That definition is repeated, over and over, by the speakers in the Senate debate during the amendment’s adoption.

A Dubious Case

Erler has not disproved one jot or tittle of this evidence. Instead, he accuses me of being “wholly unacquainted with the foundations of the American Constitution” and “wholly oblivious” to the doctrines of the common law; I “conveniently ignore” the truth; I propose “the worst kind of tampering” with the Constitution.

I have no personal quarrel with Erler. But I am constrained to note that he has edited a quotation to suggest a meaning contradicted by the unedited text, he has misidentified a key player in the debate and misstated his role in it, he has cited remarks about one measure and stated that they were made about another, and he has directly misstated the meaning of adverse case authority.

His novel interpretation of the clause thus rests on flawed evidence. If this interpretation were made law on such a flimsy basis, it would damage the fabric of our society and our Constitution, punish innocent children, and represent “the worst kind of tampering” with the Constitution.

The discussion continues. …