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: 14th Amendment: Part 6: Citizenship Clause
Ed.
What was accomplished by the 39th Congress? The 39th Congress calmed the Nation, it bound the Nation, it helped heal the Nation. From the slaughter of combatants and civilians in a violent national rebellion, to the final rejection of slavery which began with the birth of this great Nation, to the aid of victims, past the assassination of Abraham Lincoln, to the 13th and 14th Amendment, the Civil Rights Act, to maintaining the order of the Constitution, to the re-admission of those State Congressional representatives that revolted via the Reconstruction Act of 1867, the 39th Congress worked its way past all the turmoil and chaos to start the restoration of the greatest Nation, founded on the principles of life, liberty and pursuit of happiness, and in the words of Abraham Lincoln, a Nation of the people, by the people and for the people.
Original Intent: Websters Dictionary 1828 defines the root of “original” to be origin. What is the origin of the intention? Further, what was the goal of the original intent? Was the origin of the citizenship clause of the 14th Amendment to provide citizenship status for some 4 million freedmen, women and children released from bondage by the 13th Amendment or was it to provide universal birthright citizenship?
The 39th Congress realized that it had to create a national law, a Constitutional Amendment, which would forever ban slavery and involuntary servitude such that those evils would be forever banned. Congress also knew they had to create a national law, another Constitutional Amendment, which would federalize citizenship and provide these freedmen (1), who were here legally, all the benefits, privileges and immunities of this Nation, and equal protection under the Law.
The Citizenship Clause: “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.” (2)
Many will ask, what does this mean? And unfortunately, many will ask why are commas used. Let us pretend for a moment that the opening line of the 14th Amendment is a mathematical equation. As such:
All persons born in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State if which they reside. In addition, all persons naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the State if which they reside.
One cannot say “a person born in the United States is a citizen of the United States.” That is a false and inaccurate statement. There is an equation that needs to be satisfied – in addition to birth or naturalization, one must be subject to jurisdiction of the United States. Indeed, if one believed that only birth place was important, as in “jus soli” traditions, one would require an Amendment to the Constitution!
Why? From whom does a newborn child get is nationality, his heritage, his family, his customs and indeed, his birthright? The Declaration of Independence codifies that the thirteen United States of America were formed by the Laws of Nature and Nature’s God, a philosophy which believes that lineage and nationality are passed by blood, that is “jus sanguinis”.
Old English common law believed in “jus soli”, if one is born in England, one is subject to the king. The Founders rejected the common law philosophy used by Great Britain, for the Founders believed in being a person, a citizen, not the concept of being a subject. Indeed, that was one of the issues they had with the King, they were treated as subjects, not allowed to make laws for the betterment of the people, not allowed to determine taxes. The Founders were not subjects of the King, they were free thinking men with rights that did not come from the King. And when they signed the Declaration, they declared “we mutually pledge to each other our Lives, our Futures and our sacred Honor.”
The Founders and Framers embraced the philosophy of Emer de Vattel, a Prussian at birth, who wrote the quintessential thesis of natural law, entitled “The Law of Nations”. In Chapter 19, section 211, 212 and 214,
“The whole of the countries possessed by a nation and subject it its laws, forms, as we have already said, its territory, and is the common country of all the individuals of the nation. We have been obliged to anticipate the definition of the term, native country, because our subject led us to treat of the love of our country, a virtue so excellent and so necessary in a state… The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of citizens, those children naturally follow the conditions of their fathers, and succeed all their rights…. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country…. A nation may grant to a foreigner the quality of citizen, by admitting him into the body of the political society. This is called naturalization.”
Of note, in Section 213, Vattel discusses foreigners who settle and stay in the country.
“These are a kind of citizens of an inferior order, and are united to the society, without participating in all its advantages. Their children follow the condition of their fathers;”
The Framers understood the concept of natural rights as written by Vattel, for a Constitutional requirement to become the President was to be a natural-born citizen, a concept presented by Vattel. Since there were no natural born citizens when the Constitution was ratified, as the Nation had just been founded, an alternative requirement was to simply to be a Citizen of the United States at the time of the adoption of the Constitution.
The Citizenship Clause in the Civil Rights Act of 1866
“That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States;”
While the language is very similar to the 14th Amendment, it is not the same. Upon introducing the revised wording of the 14th Amendment Section 1, Senator Howard noted,
“I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion.” (3)
There was a lengthy discussion on citizenship two months earlier when they discussed the Civil Rights Act of 1866, a law to codify the citizenship of all newly freedmen within the Nation, as the separate States could not be relied upon to complete the task. There was no provision for naturalization for it was assumed that most of the living “black slaves” were born in the United States, as per the Constitution Article I Section 9:
“The Migration and Importation of such Persons as any of the States now existing shall think proper to admit, shall not be prohibited by the Congress prior to the Year one thousand eight hundred and eight…”
As discussed in a previous paper, Senator Trumbull inferred that the words “not subject to any foreign power” as being the same as the clause “subject to the jurisdiction thereof”. He also stated that “subject to the jurisdiction thereof means not owing allegiance to anybody else, it means subject to the complete jurisdiction.” (4)
Per Webster’s Dictionary of 1828 1st edition,
jurisdiction is a noun, and that legislation from one state can exercise no jurisdiction in another. Jurisdiction is the power to make, declare and apply the law… Jurisdiction is limited to place or territory, to persons, or to particular subjects.
Indeed, subject to the jurisdiction is a simple concept; found in the New Testament in Matthew 6:24-
“No one can serve two masters”,
meaning that a person cannot serve two conflicting or compatible governments.
Excluding Indians not taxed
The phrase “excluding Indians not taxed” is used once in the original Constitution (amended by the 14th Amendment), once in the 14th Amendment and once in the Civil Rights Act of 1866. It is evident that the meaning must be the same in all three cases. During the Senate debates concerning the 14th Amendment, Senator Trumbull pointed out that the Senator Johnson of Maryland stated that the words “excluding Indians not taxed did not allude to the fact of taxation simply, but it meant to describe a class of Indians; that is, civilized Indians.”(6)
Why were Indians not taxed, when they lived in the same territory as the citizens of the United States and the several States? They were legal. They had a right to life, liberty and property as these are gifts endowed by their Creator. But they had a dual allegiance.
In the two instances found in the Constitution, “excluding Indians not taxed” was used in the discussions of Apportionment, which involves the census and the census sets apportionment (the seats in Congress), hence it sets the tax bill presented to each State. It was in the best interest of the States to ensure that Indians who were not citizens would not be included in the census, as non-citizens could shift the tax burden and representation, as in the census of 2020.
In the Civil Rights Act of 1866, Indians were legal and lived in the territories and States, as were the former slaves. To differentiate the difference, the Civil Rights Act of 1866 excluded Indians not taxed, therefore allowing former slaves to become citizens.
Thought for the Day
“Indians not taxed” were a class of people, here legally, native born Americans, who were not subject to the jurisdiction of the United States. They were finally granted citizenship in 1924 but had to fight State by State to obtain voting rights.
“Illegal aliens” are a class of people. They are here illegally. They have children who are native-born Americans, but in a natural law society, those children retain the nationality of their fathers.
Tom Weaver, Patriot ©2/26/25
- Freedmen implies male and female, young and old.
- 14th Amendment Section 1
- Congressional Globe, 39th Congress, 1st Session, 2890 (May 30, 1866)
- Ibid
- The Heritage Guide to the Constitution, Edwin Meese III, Regnery Publishing, 2005, pages 384-386
- Congressional Globe, 39th Congress, 1st Session, 2894 (May 30, 1866)
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