Citizenship Clause - Senate Debate

Senate Debate

The text of the Citizenship Clause was first offered in the Senate as an amendment to Section 1 of the joint resolution as passed by the House.

There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment. While the Citizenship Clause was intended to define as citizens exactly those so defined in the Civil Rights Act, which had been debated and passed in the same session of Congress only several months earlier, the clause's author, Senator Jacob M. Howard of Michigan, phrased it a little differently. In particular, the two exceptions to citizenship by birth for everyone born in the United States mentioned in the Act, namely, that they had to be "not subject to any foreign power" and not "Indians not taxed," were combined into a single qualification, that they be "subject to the jurisdiction" of the United States, and while Howard and others, such as Senate Judiciary Committee Chairman Lyman Trumbull of Illinois, the author of the Civil Rights Act, believed that the formulations were equivalent, others, such as Senator James R. Doolittle from Wisconsin, disagreed, and pushed for an alternative wording.

There was no recorded debate over who was encompassed by the expression “not subject to any foreign power” or whether these same people were excluded by the wording of the Citizenship Clause. Howard, when introducing the addition to the Amendment, stated that it was “the law of the land already” and that it excluded only “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Others also agreed that the children of ambassadors and foreign ministers were to be excluded. However, concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Trumbull, as well as President Andrew Johnson, asserted that both the Civil Rights Act and the Citizenship Clause would confer citizenship on them at birth, and no senator offered a contrary opinion. Trumbull even went so far as to assert that this was already true prior to the passage of the Civil Rights Act, although Senator Edgar Cowan of Pennsylvania, disagreed, stating that this was only true for the children of Caucasian immigrants. Senator John Conness of California expressed support for the Amendment for giving a constitutional basis for birthright citizenship to all children born in the United States to any parentage (including Chinese noncitizen residents who do not intend to reside permanently in the United States), even though he (and others) thought it had already been guaranteed by the Act, whereas Cowan opposed the Amendment (and Act), arguing that it would have the undesirable outcome of extending citizenship to the children of Chinese and Gypsy immigrants.

Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard's proposal more effectively excluded Aboriginal Americans on reservations and in U.S. territories from citizenship. Doolittle asserted, and Senators Reverdy Johnson of Maryland and Thomas A. Hendricks of Indiana concurred, that all Native Americans are subject to the jurisdiction of the United States, so that the phrase "Indians not taxed" would be preferable, but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States. Moreover, they objected to the phrase "Indians not taxed" on the basis that it could be construed as making citizenship dependent on wealth and also that it would allow states to manipulate who is a citizen in their state through tax policy.