It is clear that the framers of the Fourteenth Amendment did not intend individuals not subject to the full and complete jurisdiction of the United States to be included as citizens.

Not one to shy away from controversy, former national security spokesman Michael Anton wrote an op-ed in the Washington Post, the response to which has been swift and furious. He’s been called a racist (expletive), and a white nationalist whose argument is nothing but a fascist dribble and a disgraceful product of his “terrified xenophobia.” What did he advocate? An end to birthright citizenship, the policy of automatically granting citizenship to anyone born in U.S. territory, even those whose parents are citizens of foreign nations.

Anton argues that the Fourteenth Amendment “clarified for the first time that federal citizenship precedes and supersedes its state-level counterpart,” and that it specified two criteria for citizenship: “birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction.” Birthright citizenship, he claims, is inherently self-contradictory, as it violates a basic tenet of social compact theory. Since it is unlikely that Congress will do anything about it, Anton argues President Trump should issue an executive order specifying “to federal agencies that the children of noncitizens are not citizens.”

Let’s Err on the Side of a Fair Reading

In the spirit of full disclosure, while I am not Anton’s friend, I have met him more than once. Additionally, I’m a PhD student at Hillsdale College, for which Anton works. However, I will attempt what The Federalist writer David Marcus seems to have been unable to here, a dispassionate assessment of the argument by looking at the primary sources.

The controversy arising out of Anton’s article is two-fold. First, some, like Marcus, believe Anton wishes Trump to strip Americans, born of parents who are illegal immigrants, of their citizenship. Although this is a possible reading of the argument, it’s unlikely.

Accustomed to always err on the side of the most charitable interpretation, I took Anton’s argument to apply to future cases only. So his recommended executive order would specify to federal agencies that the children of noncitizens are from this day forward not to be granted citizenship. It would be highly unusual for someone like Anton to support ex post facto laws.

The second issue of controversy, to which I will dedicate most of my attention, is to Anton’s claim that the framers of the Fourteenth Amendment did not believe their words to imply birthright citizenship. The debate surrounding the amendment was, as expected, quite extensive.

Is Anton Right about the Fourteenth Amendment Debate?

Anton quotes Sen. Jacob Howard of Michigan, who proposed adding the citizenship clause of the amendment, as clarifying that it excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.” The problem with Anton’s quote is his addition of “[or].” Marcus concludes that this addition is to make the clause “say the opposite of what it actually said.”

This conclusion is uncalled for. Anton reads Howard to be talking about two separate groups of people, both excluded from American citizenship by the amendment’s wording: foreigners/aliens, and those who belong to families of ambassadors or foreign ministers. To clarify this reading, he added “or” in brackets to indicate his addition to Howard’s words. This interpretation is grammatically defensible. Both groups are expressed in two relative clauses with the same antecedent: “persons born in the United States.”

On the other hand, Marcus reads Howard as saying that the foreigners/aliens excluded from citizenship are only those who belong to the families of ambassadors. In other words, instead of adding “or” to clarify the meaning of the sentence, Marcus essentially adds “that is, those.” Both Anton’s and Marcus’s readings are grammatically viable, so one must look at the context of the debate to determine whether birthright citizenship was meant. Fortunately for us, senatorial debates in the 1860s, unlike those of today, were very substantial and interesting.

The subject of the amendment was brought up for discussion to the Senate floor several times in the first few months of 1866. It is clear that in the earlier stages of the debate some of the main proponents of the amendment advocated some form of what we today call “birthright citizenship.”

On January 30, 1866, Sen. Cowan asked whether the wording of the amendment would have “the effect of naturalizing the children of Chinese and Gypsies born in this country.” Sen. Trumbull responded, “undoubtedly.” Beware, however, interposing our modern conceptions of citizenship back into a debate in 1866. Before the Fourteenth Amendment, there was no federal concept of citizenship. If a state legally recognized Chinese and gypsies as residents of that state, the federal government had no say on the matter.

If True, Indians Would Have Been Citizens 56 Years Earlier

The final debate took place May 30. Howard introduced the final version of the citizenship clause as an addition to the Fourteenth Amendment 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.” The addition immediately met resistance and introduced a lengthy debate to determine who would and would not be granted citizenship by that clause.

The fear that the clause would extend citizenship to Indians (Native Americans) dominated most of the debate. The Senate considered whether to add “excluding Indians not taxed,” after “subject to the jurisdiction thereof.” Howard denied this was needed, because Indians were regarded as “being quasi foreign nations.”

The rest of the debate concerned whether this new addition was a needed clarification. The dispute was not whether they should include Indians as citizens, but whether the additional phrase was needed to clarify that Indians would be excluded. In other words, they all agreed on the exclusion, but wanted to make sure it was clear.

Sen. Doolittle immediately brought up the Indian question, followed by Sen. Cowan, who went on to question the breadth and length of citizenship, insisting once again that Chinese immigrants and gypsies are like foreign travelers. They may be entitled “to the protection of the laws […]; but not a citizen in the ordinary acceptation of the word.” His remarks were dismissed because no one was concerned with a Chinese or gipsy “invasion.” The pressing concern was that of Indian citizenship.

Given earlier debates, Marcus’s reading of Howard’s above quote is perhaps more likely, or perhaps Howard was intentionally ambiguous as he admittedly hoped the question was not in need of “any further elucidation.” However, regardless of Howard’s intentions, the debate over Indian citizenship and the reasons for why it was excluded from the wording of the clause is illuminating for our understanding of what constitutes and what doesn’t constitute “birthright citizenship.”

The Key Phrase: ‘Subject to the Jurisdiction Thereof’

Howard and Trumbull see the phrase “and subject to the jurisdiction thereof” as key in determining the limits of citizenship. In a response to Anton in the Washington Post, Elizabeth Wydra dismisses the importance of this phrase as a fixation of those who “deny the plain meaning of the citizenship clause.”

However, the meaning of this phrase was the central topic of debate precisely because it qualified who was to be considered a citizen in the citizenship clause. It is this phrase that made it clear that Indians were not included because even though they were born on American soil, they were not under the full and complete jurisdiction of the United States.

For Sen. Trumbull, “It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens.” Senator Johnson agreed, stating that he knows “of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States.”

Jurisdiction, says Sen. Howard, ‘ought to be construed so as to imply a full and complete jurisdiction on the part of the United States.’

Jurisdiction, says Sen. Howard, “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 […], that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” In other words, the citizenship clause does not cover those who are not under the United States’ full and complete jurisdiction.

Williams clarifies this point at the end of the debate. “In one sense,” he says, “all persons born within the geographical limits of the United States are subject to the jurisdiction of the United States [they are still expected to obey the laws of the land and be punished for breaking them], but they are not subject to the jurisdiction of the United States in every sense [they are still subject to the jurisdiction of a foreign government to which they owe allegiance].”

Two-thirds of the senators present for the vote agreed that no further clarification was needed to make sure the amendment excluded Indians. Only those under the full and complete jurisdiction of the United States are included in the clause. The fact that this amendment did not authorize birthright citizenship as it exists today is demonstrated further by the fact that Native Americans did not gain U.S. citizenship en masse when this amendment passed, in 1868, but 56 years later, with an act of Congress.

Regardless of whether we should have birthright citizenship today or not, it is clear that the framers of the Fourteenth Amendment did not intend individuals not subject to the full and complete jurisdiction of the United States to be included as citizens. It is hard to believe that they would have accepted our modern conception of “birthright citizenship,” in which any person, regardless of whether they are in the country legally, and regardless of their parents’ citizenship, can claim U.S. citizenship.

It is clear that individuals within the territory of the United States, under a tourist or student visa, or who have crossed the border illegally, are not under the full and complete jurisdiction of the United States, but are still under the jurisdiction, at least in part, of a foreign nation.