This is an 8-part series on the 14th Amendment to the US Constitution and how it affects among other things, “birthright citizenship.” Today’s offering is: Part 5: The drafting and ratification of the 14th Amendment: Section 1
Ed.
Section 1 started in the House, with a motion by Rep Higby of California:
“The Congress shall have the power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights, liberty , and property.” (1)
Basically, the original clause contained words already in the Constitution, so why have it? Ultimately it was tabled, and discussion commenced on the Civil Rights Act.
On April 30th, Thaddeus Stevens of Pennsylvania presented a proposed five section 14th Amendment, with Section 1:
“No State shall make or enforce any Law which shall abridge the privileges and immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of the law; nor deny to any person within its jurisdiction the equal protection of the laws.” (2)
Stevens presented this section noting “the magnitude of the task which was imposed on the committee. They were expected to suggest a plan for rebuilding a shattered nation…” (3) As he discusses Section 1, he notes that the Constitution only limits the acts of Congress, but this wording “corrects the defect, so far that the law which operates on one man shall operate upon all.” (3)
The Senate, as in a Committee of the Whole, was presented the proposed 14th Amendment by Senator Howard.
“It is not, perhaps, very easy to define with accuracy what is meant by the expression “citizen of the United States”, although the expression occurs twice in the Constitution…. A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws…. Before the adoption of the Constitution of the United States, the citizens of each State were, in a qualified sense at least, aliens to each other, for the reason that the several States before that event were regarded by each other as independent Governments, each one possessing a sufficiency of sovereign power to enable it to claim the right of naturalizing foreigners, and each one, also if it had seen fit so to exercise its sovereign power, might have declared the citizens of every other State to be aliens in reference to itself… The Constitution declares that “citizens of each State shall be entitled to all the privileges and immunities of citizens in the several States. The effect of this clause was to constitute ipso facto the citizens of each one of the original States citizens of the United States. And how did they antecedently become citizens of the several States? By birth or naturalization. They became such in national law, or rather of natural law… ” (4)
In closing his comments on Section 1, Senator Howard points out that while citizens are guaranteed privileges and immunities, persons are guaranteed life, liberty and property and equal protection.
As the Senate in Committee of the Whole convened on May 30th, Senator Howard of Michigan added a citizenship clause to the beginning of the Section:
“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.” (5)
Senator Howard declared
“This amendment which I have offered is simply declaratory of what I regard 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 in the United States who are foreigners, aliens, who belong to 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.” (5)
The original wording of House of Representative Resolution 127 Section 1 then followed. Senator Doolittle of Maine proposed that the clause “excluding Indians not taxed,” be inserted after “thereof”. To which, Senator Howard replied
“Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of the amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being “quasi foreign nations”. (5)
Senator Cowan of Pennsylvania offered
“I am really desirous to have the legal definition of “citizenship of the United States”… Is a child of a Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If a traveler comes from Ethiopia, from Australia … you cannot murder with impunity… you cannot commit assault and battery on him,… he has the right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word… the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power. … Why sir, there are nations of people with whom theft is a virtue and falsehood a merit. There are people to whom polygamy is as natural as monogamy is to us… If I desire the exercise of my rights I ought to go to my own people, the people of my own blood and lineage, people of the same religion, people of the same beliefs and traditions, and not thrust myself in upon a society of other men entirely different in all those respects from myself. ” (5)
Senator Conness of California countered that
“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.” (5)
However, Conness further stated that the Chinese population would always be small and that he did not believe there would be a Chinese invasion, as Senator Cowan implied with the Gypsies in Pennsylvania.
The discussion reverted to the phrase “excluding Indians not taxed”. Why was this phrase good enough for the Constitution, but not the Amendment? Why was the phrase “not subject to the jurisdiction of a foreign power” good enough for the Civil Rights Act but not the 14th Amendment?
But Section 1 was to stay. A few days later, the wording was slightly changed to “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.”
Senator Trumbull of Illinois, the person responsible for the phrase “subject to the jurisdiction thereof”, was asked to explain. “The 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 “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. That is what it means.” (5) To further paraphrase the words of Trumbull; “Are Navajo Indians subject to the complete jurisdiction of the United States; Not owing allegiance to anybody else? What else does it mean? Can you sue them in court? Adding the words “excluding Indians not taxed” — does that mean an Indian owning property and paying a tax on the property is a citizen? Should the United States government take jurisdiction over murders and robberies committed by one Indian tribe to another; are they within our complete jurisdiction?”
Senator Johnson of Maryland states “that every man who is a citizen of a State becomes ipso facto a citizen of the United States; but there is no definition as to how citizenship can exist in the United States except through the medium of a citizenship in a State. Now, all that this amendment provides is, that all persons born in the United States and not subject to some foreign Power — for that, no doubt , is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States.”(5) Further, to paraphrase, — there should be a definition for what citizenship is, the amendment says that citizenship may depend on birth within the territory of the United States, “born of parents who at the time were subject to the authority of the United States.”(5)
The wording for citizenship caused confusion. Trumbull and others did not want the “not taxed” line included, for then people could think citizenship is based on money. Senator Trumbull kept saying “sole jurisdiction”, but never updated the Amendment wording. (7)
Arise the opposition, Senator Garrett Davis of Kentucky. “The real and only object of the first provision of this section, which the Senate has added to it, is to make negroes citizens, to prop the civil rights bill, and give them a more plausible, if not valid, claim to its provisions, and to press them forward to a full community of civil and political rights with the white race, for which its authors are struggling and mean to continue to struggle. Except for the negro, there is no occasion for it, ….” (6) There was no rebuttal, because he was not addressing the Committee of the Whole.
Senator Howard “I concur… that the word Jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States… the same jurisdiction in extent and quality as applies to every citizen of the United States now……” (8)
The 14th Amendment was ratified by 2/3’s of both Houses and sent to the States for adoption on June 22nd. Tennessee ratified the Amendment shortly thereafter, becoming the 1st former Confederate State to return to the Congressional halls.
Tom Weaver, Patriot ©2/25/25
- Congressional Globe, 39th Congress, 1st Session, H.p. 1054 (February 27, 1866)
- Congressional Globe, 39th Congress, 1st Session, H.p. 2286 (April 30, 1866)
- Congressional Globe, 39th Congress, 1st Session, H.p. 2459 (May 8, 1866)
- Congressional Globe, 39th Congress, 1st Session, S.p. 2764 (May 23, 1866)
- Congressional Globe, 39th Congress, 1st Session, S.p. 2890 (May 30, 1866)
- Congressional Globe, 39th Congress, 1st Session, S.p. app. 240 (June 7, 1866)
- Congressional Globe, 39th Congress, 1st Session, 2894 (May 30, 1866)
- Congressional Globe, 39th Congress, 1st Session, 2895 (May 30, 1866)
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