Truths and Untruths About the Constitutional Origins of Birthright Citizenship

01/21/2011 01:41 pm ET | Updated May 25, 2011

As Americans and our elected leaders engage in debate over immigration and the constitutional guarantee of citizenship at birth, there is something we should all be able to agree on: misleading statements about constitutional history do not help us understand the Constitution better or allow us to tackle immigration reform in good faith.

It was thus disheartening to see Rep. Lamar Smith, new chairman of the House Judiciary Committee, seriously mislead the public in a letter to the editor printed in the Los Angeles Times. Writing about the Constitution's guarantee of citizenship at birth for all children born on U.S. soil and "subject to the jurisdiction" of the United States, Rep. Smith asserted: "during the debate on the 14th Amendment in 1866, a senator who helped draft the amendment said it would 'not of course include persons born in the United States who are foreigners.'" However, this was an incomplete quote. Had Rep. Smith included the entire quote -- or better yet, included the entire quote and helped explain its significance -- it would not have supported his reading of the 14th Amendment. Perhaps that is why he cut the quote off where he did.

Such distortions of history are unhelpful at best. Here is the full quote from the 1866 Congressional Globe, which is attributed to Sen. Jacob Howard, principal draftsman of the Citizenship Clause of the 14th Amendment:

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 born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

The reason why this is important is because anti-citizenship advocates seize upon the phrase "subject to the jurisdiction thereof" in the 14th Amendment's guarantee that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." They argue that illegally present immigrants are not "subject to the jurisdiction" of the United States. The incomplete portion of the quote used by Rep. Smith in his L.A. Times letter appears to support the view that the Citizenship Clause was drafted to exclude children of "foreigners" who are not subject to U.S. jurisdiction.

But the full sentence shows otherwise. Sen. Howard's description of the only class of children born on U.S. soil who would not be U.S. citizens automatically at birth was merely a summary of the widely accepted understanding that children of foreign diplomats would not be birthright citizens. This is because of the legal fiction that diplomats, while physically present here, are sort of floating along in a little bubble of their home country -- hence the concept of diplomatic immunity. Sen. Howard used the terms "foreigners" and "aliens" in the sentence quoted above to describe those "who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States." If Howard were intending to list several categories of excluded persons (e.g., foreigners, aliens or families of diplomats) he could have said so. Instead, the language he used strongly suggests he was describing a single excluded class, limited to families of diplomats.

Indeed, the history of the Constitution's Citizenship Clause shows that citizenship at birth for children of "foreigners" was expressly contemplated. For example, Sen. Edgar Cowan expressed concern that the citizenship proposal would expand the number Chinese in California and Gypsies in his home state of Pennsylvania by granting birthright citizenship to their children, even (as he put it) the children of those who owe no allegiance to the United States and routinely commit "trespass" within the United States. Supporters of the Citizenship Clause did not take issue with Cowan's understanding of the effect of the Clause, but instead defended it as a matter of sound policy. Sen. John Conness of California declared: "The proposition before us... relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens... I am in favor of doing so..."

In contrast to the current debate over the meaning of the Citizenship Clause, the legislative debates occurring at the time Congress approved the Clause demonstrate that both its proponents and opponents agreed that it recognizes and protects birthright citizenship for the children of aliens born on U.S. soil.

And since 1898, the U.S. Supreme Court has also agreed. In United States v. Wong Kim Ark, the Court held that a U.S.-born child of Chinese immigrants was entitled to citizenship, explaining that the "14th Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory... including all children here born of resident aliens." In 1982, the Court explained in Plyler v. Doe that the 14th Amendment extends to anyone "who is subject to the laws of a state," including the U.S.-born children of illegal aliens. Similarly, in the 1985 case INS v. Rios-Pineda, the Court stated that a child born on U.S. soil to an undocumented immigrant was a U.S. citizen from birth.

Complete quotes and adequate explanations do not always fit the word limit for letters to the editor or make for good TV soundbites. But it is the duty of our elected officials to be straight with the American people, especially when discussing the meaning of our Constitution. Looking at the facts -- the text and history of the 14th Amendment's Citizenship Clause and more than a century of Court precedent -- I think it is unquestionable that the Constitution guarantees citizenship at birth to children born on U.S. soil (with the exception of children born to diplomats), including children born to parents who are undocumented immigrants. Rep. Smith and other anti-citizenship activists are certainly entitled to disagree -- but they aren't entitled to create their own version of history.