by Diane Rufino, November 16, 2018
The term “birthright citizenship” refers to the idea that you can become a citizen of a country simply by being born there. The fancy legal term is jus soli, “right of the soil” (as opposed to the policy termed jus sangunis (“right of blood”) by which nationality or citizenship is not determined by place of birth, but by having an ancestor who is a national or citizen of the state.
In this country, citizenship is defined not in the Constitution per se, but in the first section of the 14th Amendment. It is referred to as the Citizenship Clause” and reads: “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…… “
It is currently the object of great contention right now after President Trump announced he was planning on eliminating “birthright citizenship” as it pertains to those entering our country illegally.
The purpose of this article is to explain why the “Citizenship Clause” cannot be understood, or should be interpreted, to include birthright citizenship to babies born to illegal aliens.
The 14th Amendment is one of the three post-Civil War Reconstruction era amendments to the Constitution – the 13th (abolishing slavery and indentured servitude), 14th (giving freed blacks citizenship and civil rights), and 15th (giving blacks the right to vote). It passed in the US House, after several proposals were considered, in May 1866 (House Resolution 127, 39th Congress), sent to the Senate where amendments were added, and sent back to the House which eventually agreed to the Senate amendments on June 18, 1868. On June 18, a concurrent resolution requesting the President to transmit the proposal to the executives of the several states was passed by both houses of Congress.
It’s general intent, at least that of the first section, was to vest newly-freed slaves, and other African-Americans with the rights of citizenship in light of the 13th Amendment which had abolished slavery and in light of the Dred Scott decision of 1857 which held that any person descended from Africa (Africans), whether slave or free, is not a citizen of the United States, according to the US Constitution.
In 1857, the US Supreme Court handed down arguably the most offensive opinion issued by the high court, or any court – the Dred Scott v. Sandford opinion (commonly just referred to as the Dred Scott opinion).
The case had been in the court system for more than a decade. Scott had been born into slavery in 1795. In subsequent years, he lived in two parts of the United States that didn’t allow slavery, Illinois and Wisconsin, along with his master. When his current master died in 1846, Scott filed suit on behalf of himself and his wife, also a slave, to gain their freedom. The case was heard by three other courts as it made its way to Washington.
The Court ruled, in a 7-2 opinion, against Scott. Judge Roger Taney wrote the opinion of the Court, which highlighted, include the following:
4. A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States. The words “people of the United States” and “citizens” are synonymous terms, and mean the same thing. They both describe the political body who, according to our republican institutions, form the sovereignty and who hold the power and conduct the Government through their representatives. They are what we familiarly call the “sovereign people,” and every citizen is one of this people, and a constituent member of this sovereignty. The question before us is whether the class of persons described in the plea in abatement compose a portion of this people, and are constituent members of this sovereignty? We think they are not, and that they are not included, and were not intended to be included, under the word “citizens” in the Constitution, and can therefore claim none of the rights and privileges which that instrument provides for and secures to citizens of the United States. On the contrary, they were at that time considered as a subordinate and inferior class of beings who had been subjugated by the dominant race, and, whether emancipated or not, yet remained subject to their authority, and had no rights or privileges but such as those who held the power and the Government might choose to grant them.
5. When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guaranteed to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.
6. The only two clauses in the Constitution which point to this race treat them as persons whom it was morally lawfully to deal in as articles of property and to hold as slaves.
7. Since the adoption of the Constitution of the United States, no State can by any subsequent law make a foreigner or any other description of persons citizens of the United States, nor entitle them to the rights and privileges secured to citizens by that instrument.
8. A State, by its laws passed since the adoption of the Constitution, may put a foreigner or any other description of persons upon a footing with its own citizens as to all the rights and privileges enjoyed by them within its dominion and by its laws. But that will not make him a citizen of the United States, nor entitle him to sue in its courts, nor to any of the privileges and immunities of a citizen in another State.
9. The change in public opinion and feeling in relation to the African race which has taken place since the adoption of the Constitution cannot change its construction and meaning, and it must be construed and administered now according to its true meaning and intention when it was formed and adopted.
[Taken from the Opinion – Dred Scott v. Sandford, 60 U.S. 393. Go to the Appendix for more information on the case]
In a poor exercise of reasoning, Judge Taney argued: “There are two clauses in the Constitution which point directly and specifically to the negro race as a separate class of persons, and show clearly that they were not regarded as a portion of the people or citizens of the Government then formed.”
The Dred Scott decision (“opinion’) came just two days after President James Buchanan took office, and it set the tone for his controversial term that led to the Civil War. The decision was celebrated in the South but the Abolitionists in the North were outraged. The court also declared the Missouri Compromise of 1820 to be unconstitutional. And it said that Congress did not have the authority to prohibit slavery in the territories, which would seem to prohibit Lincoln from his campaign promise to prohibit the spread of slavery into the western territories.
With the Dred Scott decision and its voiding of the Missouri Compromise, thus making slavery legal in all U.S. territories, and the promise by candidate Abraham Lincoln that he would enforce the Morrill tariff (the highest tariff yet, up to 47% by 1863) passed by Congress in May 1860 and signed by President Buchanan), the election of 1860 was a completely sectional election – pitting the North against the South.
In November 6, 1860, Lincoln was elected the 16th president of the United States, without an actual majority (less than 40%) and without a single vote from any of the Southern states that would later form the Confederacy (except Virginia, where he got 1%). On December 20, the South Carolina state legislature voted to secede from the Union (issuing its “Declaration of the Immediate Causes which Induce and Justify the Secession of South Carolina” on December 24). Six other states followed suit before Lincoln was even inaugurated: Mississippi (on January 9, 1861), Florida (on January 10), Alabama (on January 11), Georgia (on January 19), Louisiana (on January 26), and Texas (on February 1). On February 8, the seceded states met and held a convention in Montgomery, Alabama and agreed to form a Union – the Confederate States of America. They adopted a constitution at that convention, which by many accounts was superior to the US Constitution.
Lincoln was inaugurated on March 4, 1861 and on April 12, shots were fired by South Carolina on Fort Sumter (held by Union Major Anderson), giving him the pretext to invade the South and begin the Civil War. Rejecting the natural right of secession, he characterized the actions of the Southern states as “rebellion,” and used the armed forces of the United States to “force them back into the Union” (which was confusing since Lincoln claimed they never left the Union since they didn’t have the right to do so).
Lincoln called the question about whether the Southern states were in or out of the Union a “pernicious abstraction.” “Obviously,” he explained, they were not “in their proper practical relation with the Union.”
After General Robert E. Lee’s surrender at Appomattox on April 9, 1865 and Lincoln’s assassination on April 14 (he died the following morning), the country entered into a decade-long period, or process, known as “Reconstruction” – the “reconstructing” of the Union. Through this process of Reconstruction, the Northern-dominated federal government attempted to resolve the political and constitutional issues that led to the Civil War and in effect, through punishment of the South (those responsible for seceding and those in support of the Confederacy) and by changing the body politic of the former Confederate states. The priorities were: to guarantee that Confederate nationalism and slavery were ended, to ratify and enforce the 13th Amendment which outlawed slavery; the 14th Amendment which guaranteed dual U.S. and state citizenship to all native-born residents, regardless of race; and the 15th Amendment, which made it illegal to deny the right to vote because of race.
The US House passed the 13th Amendment in January of 1865, without any representation from the Southern states (their representatives were not allowed to be seated), and then sent to the states for ratification. As for the former Confederate states, the amendment was submitted to “reconstruction governments,” devoid of anyone that had “supported the Confederacy.” The question as to whether these were in fact legitimate legislatures is a valid one. Nevertheless, the 13th Amendment was ratified by 3/4 of the states, and hence certified as valid, on December 18, 1865.
Next would come the 14th Amendment.
It would play an important role in Reconstruction (in the North’s reconstruction of the South back into the Union).
When it looked as if the North would defeat the South, even before Sherman’s march, Republicans had began to make plans for the reconstruction of the war-torn and still greatly divided country. Their most important concerns were for the formal adoption of the 14th Amendment (which they intended would elevate newly-freed slaves and free black persons to full citizenship), elimination from power anyone who supported the Confederacy, and the adoption of black male suffrage provisions (to dilute the South Democrats) as conditions for re-admission.
The 14th Amendment was intended to memorialize the guarantees of the 1965 Civil Rights Act in the US Constitution. In 1865, Congress passed what would become the Civil Rights Act of 1866, guaranteeing citizenship without regard to race, color, or previous condition of slavery or involuntary servitude. The bill also guaranteed equal benefits and access to the law, a direct assault on the Black Codes passed by many post-war states. The Black Codes attempted to return ex-slaves to something like their former condition by, among other things, restricting their movement, forcing them to enter into year-long labor contracts, prohibiting them from owning firearms, and preventing them from suing or testifying in court.
Although strongly urged by moderates in Congress to sign the bill, President Andrew Johnson vetoed it on March 27, 1866. In his veto message, he objected to the measure because it conferred citizenship on the freedmen at a time when 11 out of 36 states were unrepresented in the Congress, and that it discriminated in favor of African-Americans and against whites. Three weeks later, Johnson’s veto was overridden and on April 9, the measure became law. Despite this victory, even some Republicans who had supported the goals of the Civil Rights Act began to doubt that Congress really possessed constitutional power to turn those goals into laws. The experience also encouraged both radical and moderate Republicans to seek Constitutional guarantees for black rights, rather than relying on temporary political majorities.
While the Civil Rights Act of 1866 addressed many of Congress’s concerns about citizenship and civil rights, several members of Congress worried about the Act’s constitutionality and permanence. Two months after the Act became law, Congress would approve H.R. Res. 127, which when ratified by the states would become the 14th Amendment. Addressing citizenship in words almost identical to those of the 14th Amendment, the Civil Rights Act declared: “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 . . . .”
The Act then addressed certain specified civil rights by saying:
“Such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make and enforce contracts, to sue, be parties, and give evidence, to inherit purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding.”
In late 1865, Rep. John A. Bingham of Ohio, who was a member of the Joint Committee of Fifteen on Reconstruction, proposed a constitutional amendment which would enable Congress to safeguard “equal protection of life, liberty, and property” of all citizens; this proposal failed to pass the House. In April 1866, the Joint Committee forwarded a third proposal to Congress, a carefully negotiated compromise that combined elements of the first and second proposals as well as addressing the issues of Confederate debt and voting by ex-Confederates. The House of Representatives (39th Congress) passed House Resolution 127 several weeks later and sent to the Senate for action. The resolution was debated and several amendments to it were proposed. Amendments to Sections 2, 3, and 4 were adopted on June 8, 1866, and the modified resolution passed by a 33 to 11 vote (5 absent, not voting). The House agreed to the Senate amendments on June 13 by a 138–36 vote (10 not voting). The “Citizenship Clause” was added by Senator Jacob Howard of Michigan.
That is the very simplified history of the 14th Amendment.
As most of you know, either through your reading, your learning of Supreme Court or other federal court opinions regarding civil rights or discrimination (the 14th Amendment being the #1 basis for lawsuits), your history courses, your study of law, or even just listening to the heated debates by legal experts and pundits on TV, the absolute meaning of the 14th Amendment is not known; it means different things to different people. It meant one thing to the Supreme Court at the end of the 20th century (Slaughterhouse cases, 1873) and early 21st century, but meant something else in later cases.
So I think it’s important to take a closer look at the proposal of the amendment and its adoption by the US House and Senate.
Congress had two important concerns about civil rights in 1866. One was that the Bill of Rights by itself did not limit the actions of state governments and the other was the Congress lacked any express power to enforce the Bill of Rights against the states. Congress ultimately addressed these concerns in Sections 1 and 5 of the 14th Amendment. But before Congress approved H.R. Res. 127, the House considered another provision, H.R. Res. 63, which had similar objectives. H.R. Res. 63 arose in the Joint Committee. On January 12, the Joint Committee formed a subcommittee on the powers of Congress.209 On January 27, 1866, Representative Bingham reported to the full committee that the subcommittee had approved a proposed amendment. The subcommittee’s proposal said:
“Congress shall have power to make laws which shall be necessary and proper to secure to all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in any State the same immunities and equal political rights and privileges.”
Although the Journal of the Joint Committee does not report the debates of the full committee, it does show that the full committee made minor amendments to the proposal on both January 27 and February 3. On February 10, the Committee then voted to send the proposed amendment to both Houses of Congress as a proposed constitutional amendment.
On February 26, Representative Bingham introduced the proposed constitutional amendment to the House as a joint resolution, H.R. Res. 63. The proposal, as it had been revised by the full committee, said:
“The Congress shall have 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 (Art. 4, Sec. 2), and to all persons in the several States equal protection in the rights of life, liberty, and property (5th Amendment).”
After quoting the Privileges and Immunities Clause in Article V and the last clause of the Fifth Amendment, Representative Bingham said:
“Sir, it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution. Nothing can be plainer to thoughtful men than that if the grant of power had been originally conferred upon the Congress of the nation, and legislation had been upon your statute-books to enforce these requirements of the Constitution in every State, that rebellion, which has scarred and blasted the land, would have been an impossibility.”
Representative Bingham explained that the proposed amendment would solve these problems. He said: “The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today.”‘
The House of Representatives debated H.R. Res. 63 on February 26-28. Despite Representative Bingham’s arguments, opponents of the proposal strongly objected that it went too far. The Supreme Court summarized the opposition to H.R. Res. 63 in City of Boerne v. Flores (1997):
“Some argued that the] proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure. Democrats and conservative Republicans argued that the proposed Amendment would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution. Typifying these views, Republican Representative Robert Hale of New York labeled the Amendment “an utter departure from every principle ever dreamed of by the men who framed our Constitution,” and warned that under it “all State legislation, in its codes of civil and criminal jurisprudence and procedure . . . may be overridden, may be repealed or abolished, and the law of Congress established instead.” Senator William Stewart of Nevada likewise stated the Amendment would permit “Congress to legislate fully upon all subjects affecting life, liberty, and property,” such that “there would not be much left for the State Legislatures,” and would thereby “work an entire change in our form of government.” Some radicals, like their brethren “unwilling that Congress shall have any such power . . . to establish uniform laws throughout the United States upon . . . the protection of life, liberty, and property,” also objected that giving Congress primary responsibility for enforcing legal equality would place power in the hands of changing congressional majorities.”
On February 28, 1866, when it appeared that the proposal would not gain approval, the House voted to postpone consideration until “the second Tuesday in April” (i.e., April 10, 1866).
After these unsuccessful initial attempts to approve the previously discussed joint resolutions proposing amendments to the Constitution, Congress finally succeeded with H.R. Res. 127, the provision that became the 14th Amendment. H.R. Res. 127 was broader in scope than the prior proposals. It addressed all of the subjects of H.R. Res. 9, H.R. Res. 51, and H.R. Res. 63. It also included a provision on the eligibility of former Confederate officials to hold government office.
On April 21, 1866, Representative Stevens introduced into the Joint Committee “a plan of reconstruction, one not of his own framing, but [one] which he should support.” This proposal contained five sections. Section 1 of the April 21 proposal in the Committee said: “No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude.”‘ The Committee revised this sentence substantially before submitting it to Congress. As introduced in Congress, the proposal said:
“No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Two features of the revision in the Committee deserve mention. First, as the text shows, the Committee decided to drop all mention of race. The revised version sounds very much like H.R. Res. 63, but does not say anything about the powers of Congress.
Section 2 of the April 21 proposal would have banned racial discrimination with respect to the right to vote. The proposal said: “From and after the fourth day of July, in the year one thousand eight hundred and seventy-six, no discrimination shall be made by any state, nor by the United States, as to the enjoyment by classes of persons of the right of suffrage, because of race, color, or previous condition of servitude.”
The Committee, however, deleted the original Section 2. Because the Journal does not record committee discussions, the reasons for deleting this provision are lost to history. Voting discrimination became a subject that ultimately would be addressed by the 15th Amendment (ratified in 1870).
The Joint Committee debated the proposal of April 21 and, as explained above, made various revisions before approving it for submission to Congress on April 28, 1866. Representative Stevens introduced the proposal into the House on April 30, 1866, as H.R. Res. 127, but the House voted to postpone discussing the proposal until May 8.
On May 8, Representative Stevens gave a long speech in which he explained the meaning and purpose of each section. The House debated H.R. Res. 127 on May 8, 9, and 10. On May 10, the House voted to approve H.R. Res. 127, without amendment, by a two-thirds majority (128 yeas, 37 nays, and 19 not voting). [NOTE: The House never reopened H.R. Res. 63. On June 6, 1866, Representative Bingham moved that it “be indefinitely postponed, for reason that the constitutional amendment [H.R. Res. 127] already passed by the House covers the whole subject matter.” The House approved the motion. The Senate never considered H.R. Res. 63].
H.R. Res. 127 was introduced into the Senate on May 10, but no discussion occurred on that day.” On May 23, Senator Howard initiated the Senate’s consideration of H.R. Res. 127 by analyzing each of its five sections. The Senate discussed H.R. Res. 127 as a committee of the whole on May 23, 24, and 29, and during at time, the made various amendments to it. Discussions continued in both committee and in regular sessions until June 8. [Regular sessions on May 30 and 31, and as a committee of the whole from June 4 to June 8].
On May 23, 1866, Senator Benjamin Wade, Republican of Ohio, suggested that, given the importance in Section 1 of a guarantee of privileges or immunities to United States citizens, it was imperative that a “strong and clear” definition of citizenship be added to the proposed 14th Amendment – a “Citizenship clause.” He suggested “persons born in the United States or naturalized by the laws thereof.” Senator Howard, Republican of Michigan, responded on May 30, 1866, with a proposal that was drafted in the Joint Committee on Reconstruction which eventually became the first sentence of the 14th Amendment as it was finally adopted. It read: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” Both Howard and the Joint Committee evidently placed some importance on the addition of the jurisdiction clause, which meant, at a minimum, that not all persons born in the United States were automatically citizens, but also had to be subject to the jurisdiction of the United States.
This is how we got the “Citizenship Clause” of the 14th Amendment.
Senator Howard and others discussed the purpose, meaning, and limitations of this amendment to the proposal on May 30. He explained that the purpose of the first sentence was to eliminate doubt caused by the Dred Scott decision on the issue of citizenship. He said: “It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States.” In that statement, Senator Howard was not explaining the meaning of the first sentence of Section 1, but instead the purpose that the first sentence serves. The sentence had the effect of overruling the Supreme Court’s decision in Dred Scott that persons of African descent could never be citizens. Senator Revardy Johnson, who as an attorney had represented John Sanford against petitioner Dred Scott before the Supreme Court, supported the amendment. Without discussing his former role in the matter, he subtly mentioned that “serious questions have arisen, and some of them have given rise to embarrassments, as to who are citizens of the United States, and what are the rights which belong to them as such; and the object of this amendment is to settle that question.”‘ When the matter came before the House, Representative Stevens merely commented: “This is an excellent amendment, long needed to settle conflicting decisions between the several States and the United States.”
His remarks introducing the new language in the Senate have attracted much attention — and much controversy.
Senator Howard said:
“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. This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the 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. 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.”
On June 8, 1866, the Senate approved the amended version of H.R. Res. 127 by a two-thirds vote (33 yeas, 11 nays). Because the Senate had approved an amended version, the joint resolution had to go back to the House to see if the House would concur in the Senate’s amendments. The amended version of H.R. Res. 127 was introduced in the House on June 9. The House debated the amended version on June 13. Rep. Thaddeus Stevens, the Committee Chair, briefly described the Senate’s amendments, some of which he approved and some of which he disfavored. In the end, the House concurred in the Senate’s version by a two-thirds vote (120 yeas, 32 nays, and 32 not voting) and the 14th Amendment was passed by Congress.
On June 16, Congress sent the approved version of joint resolution H.R. Res. 127 to the Secretary of State William Seward for delivery to President Andrew Johnson. President Johnson opposed the 14th Amendment, but Article V assigns no role to the President in the Amendment process. Accordingly, President Andrew Johnson’s only duty was to send the proposed 14th Amendment to the states, which he instructed Seward to do on June 22, 1866.
Initially, none of the ex-Confederate states ratified the 14th Amendment in 1866, except Tennessee. Accordingly, Tennessee was quickly re-admitted to the Union – reclaiming full status as a state and having its representatives allowed once again to sit in Congress.
In response, the Northern-dominated Congress passed a series of punishing laws aimed at making sure the South came back into the Union on the terms it required – the Reconstruction Acts. It passed four of them (three in 1867 and one in 1868)
The essential provisions can be summed up as follows:
• The Reconstruction Acts of 1867 created five military districts in the seceded states (again, with the exception of Tennessee, which ratified the 14th Amendment and was thus re-admitted to the Union). The five districts were (1) Virginia; (2) North and South Carolina; (3) Georgia, Alabama, and Florida; (4) Mississippi and Arkansas; and (5) Texas and Louisiana. Around 200,000 troops were placed in the South to enforce military rule.
• Each district in the Union was now headed by a military official empowered to remove and subsequently anoint state leaders/officials. All states were required to employ a military leader from the North (Marshall Law).
• The Reconstruction Acts of 1867 required each state had to draft a new state constitution, which would have to be approved by Congress before that state could be re-admitted to the Union.
• The Reconstruction Acts of 1867 implemented regulations regarding voter registration; all freed individuals were allowed to vote along with white persons who took extended oaths.
• The Reconstruction Acts of 1867 required each state to ratify the 14th Amendment prior to readmission into the Union.
• State constitutional conventions were required to draft new governing documents that included laws on black male suffrage and the elimination of their black codes.
• The Reconstruction Acts of 1867 disabled confederate leaders and any individual who did not pledge their allegiance to the United States from voting. (Thirty-five percent to forty-five percent of potential white voters were either excluded from voting because of the Reconstruction Acts, or failed to register or were prevented from registering).
One thing all military commanders did – because they were told to do so by Congress – was to place former slaves in positions in government. These former slaves knew nothing about government or money. They were not trained for their jobs. But they were loyal to the Republican Party. And nearly all were puppets under the control of army officials.
[It should be noted that President Andrew Johnson, who had taken over as President of the United States after Lincoln was assassinated, vetoed the Reconstruction Acts, asserting that they were unconstitutional. But Johnson’s veto was overruled by Congress. Military rule in the South would last for 10 years, until 1877, when the Republican party agreed to return Southern states to home rule in exchange for their support of the Republican candidate for president, Rutherford B. Hayes. That was the end of reconstruction].
By early 1868, the former Confederate States began to draft and submit to Congress new state constitutions. By June 9, all had new “acceptable” constitutions and thus Secretary Seward announced that all had formed republican governments and would be entitled to representation in Congress (have its representation restored) once they ratified the 14th Amendment. On these terms, Florida ratified the amendment on June 9, North Carolina on July 2, Louisiana and South Carolina on July 9, and Alabama on July 16.
These Southern ratifications seemed to give Secretary of State William Seward the required twenty-eight states necessary for the 14th Amendment to become law. Secretary Seward had twenty-nine ratifications on file, but prior to receiving the twenty-eighth, New Jersey and Ohio had rescinded their ratification. Nevertheless, on July 20, 1868, Secretary Seward issued a proclamation declaring the 14th Amendment ratified. Congress reacted quickly to Seward’s proclamation, and on July 21, 1868, declared all twenty-nine ratifications to be valid and that the 14th Amendment was “part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.” On July 28, Seward, issued a second proclamation, declaring the 14th Amendment had “become valid to all intents and purposes as a part of the Constitution of the United States.”
As is explained in detail in the Appendix, there were serious irregularities in the ratification of the 14th Amendment, thereby making it most likely that it was never legally passed in Congress or ratified by the States. Nevertheless, on July 28, 1868, Secretary of State William Seward proclaimed that three-fourths of the states had ratified it.
The Radical Republicans were satisfied that they had secured civil rights for blacks, but were disappointed that the amendment did not include the right to vote. That would come with the 15th Amendment, which was ratified on February 3, 1870.
II. “AND SUBJECT TO THE JURISDICTION THEREOF….”
Again, the purpose of this article is to discuss birthright citizenship, which is addressed immediately in Section 1 of the 14th Amendment —
“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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
Although the Constitution of 1787 mentioned citizens, it did not define citizenship. It was not until the 14th Amendment was added that a definition of citizenship entered the Constitution. “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.” Thus there are two components to American citizenship: birth or naturalization in the US and being subject to the jurisdiction of the US. Today, we somehow have come to believe that anyone born within the geographical limits of the US. is automatically subject to its jurisdiction; but this renders the jurisdiction clause utterly superfluous. If this had been the intention of the framers of the 14th Amendment, presumably they would have said simply that all persons born or naturalized in the U.S. are thereby citizens.
During debate over the amendment, Senator Jacob Howard attempted to assure skeptical colleagues that the language was not intended to make Indians citizens of the United States. Indians, Howard conceded, were born within the nation’s geographical limits, but he steadfastly maintained that they were not subject to its jurisdiction because they owed allegiance to their tribes and not to the Senator Lyman Trumbull, chairman of the Senate Judiciary Committee, supported this view, arguing that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”
Jurisdiction understood in terms of “allegiance,” Senator Howard explained, excludes not only Indians but “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Thus, “subject to the jurisdiction” does not simply mean, as is commonly thought today, subject to American laws or courts. It means owing exclusive political allegiance to the United States.
Furthermore, there has never been an explicit holding by the Supreme Court that the children of illegal aliens are automatically accorded birthright citizenship. In the case of Elk v. Wilkins (1884), the Court held that children born to Native Indian parents could not be citizens under the 14th Amendment’s citizenship clause because at the time of the birth, the allegiance of the parents belonged to the tribal nation. In the case of United States v. Wong Kim Ark (1898) the Court ruled that a child born in the U.S. of legal aliens was entitled to “birthright citizenship” under the 14th Amendment. [A more in-depth analysis of Elk and Wong is provided in the Appendix].
In a third Supreme Court case, Plyler v. Doe (1982), the Court addressed the treatment of children of illegal aliens, in the context of public education. Texas had a statue allowing the state to withhold funds to public school districts for illegal children. The provision at issue was not the Citizenship Clause but the Equal Protection Clause, but supporters of birthright citizenship for illegals will point to a footnote that the liberal judges included in the opinion. It read, in part:
“As one early commentator noted, given the historical emphasis on geographic territoriality, bounded only, if at all, by principles of sovereignty and allegiance, no plausible distinction with respect to Fourteenth Amendment “jurisdiction” can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”
This footnote, however has little or no persuasive power. It provides no precedence power. It merely recited the views of a commentator and was irrelevant to the matter under decision.
Ideological liberals have recently invented a novel and wholly fabulous interpretation of this passage, maintaining that when Howard mentions that “foreigners, aliens” are not “subject to the jurisdiction” of the United States he means to include only “families of ambassadors or foreign ministers.” If so, this would be an extraordinarily loose way of speaking: Ambassadors and foreign ministers are foreigners and aliens and their designation as such would be superfluous. If we give full weight to the commas after “foreigners” and after “aliens,” this would indicate a series which might be read in this way: “foreigners, aliens, families of ambassadors, foreign ministers,” all separate classes of persons who are excluded from jurisdiction. Or it could be read in this way: “foreigners, aliens, [that is, those who belong to the] families of ambassadors or foreign ministers.” I suggest that the natural reading of the passage is the former, i.e., that the commas suggest a discrete listing of separate classes of persons excluded from jurisdiction. Of course, the debate was taken by shorthand reporters and not always checked by the speakers, so the issue cannot be settled simply on the basis of the placement of commas. In addition, Howard seemed to make a glaring omission — he failed to mention Indians. He was forced to clarify his omission when challenged by Senator James R. Doolittle of Wisconsin who queried whether the “Senator from Michigan does not intend by this amendment to include the Indians”; he thereupon proposed to add the language of the Civil Rights Act of 1866 “excluding Indians not taxed.” Howard vigorously opposed the amendment, remarking that “Indians born within the limits of the United States and who maintain their tribal relations, are not in the sense of this 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.” In other words, the omission of Indians from the exceptions to the jurisdiction clause was intentional. Howard clearly regarded Indians as “foreigners, aliens.” This conclusion is supported by Senator Lyman Trumbull who, as we will discuss shortly, also opposed Doolittle’s amendment. This is clear evidence, against the claims of ideological liberals who have become the proponents of open borders and are intent to replace citizens with “universal persons,” that Howard meant that foreigners and aliens included only the families of ambassadors and foreign ministers. Based on the evidence we have proffered so far, this has been exposed as an utterly preposterous idea. But there is more to come. There is no evidence anywhere in the debates to support the assertions of ideological liberals. [Edward J. Erler, “Trump’s Critics Are Wrong About the 14th Amendment and Birthright Citizenship”]
Howard had said earlier in his statement that “[t]his amendment which I have offered is simply declaratory of what I regard as the law of the land already.” The “law of the land” to which Howard referred was undoubtedly the Civil Rights Act of 1866, passed over the veto of President Andrew Johnson by a two-thirds majority in both houses less than two months prior to the May 30 debate in the Senate. The Civil Rights Act provided the first definition of citizenship after the ratification of the 13th Amendment, specifying “[t]hat 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.” Thus an overwhelming majority of Congress on the eve of the debate over the meaning of the citizenship clause of Section 1 of the 14th Amendment were committed to the view that foreigners — and presumably aliens — were not subject to birthright citizenship. Most of those who voted in favor of the act were still serving in Congress when the 14th Amendment was under consideration. In fact, Senator Lyman Trumbull, the author of the Civil Rights Act and chairman of the powerful Senate Judiciary Committee, was an ardent supporter of Howard’s version of the citizenship clause. “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.” Not owing allegiance to anybody else, subject to the complete jurisdiction of the United States, and not subject to a foreign power. During debate over the Civil Rights Act, Senator Trumbull remarked that purpose of its citizenship clause was “to make citizens of everybody born in the United States who owe allegiance to the United States.” Read in the light of the Civil Rights Act and the authoritative statements by Senator Trumbull in the May 30 debate, can there be any real dispute that “foreigners, aliens” in Senator Howard’s opening statement does not refer to “families of ambassadors or foreign ministers” but to “foreigners, aliens” as a separate class of persons? Thus, is it not fair — and accurate — to read Howard’s statement introducing the citizenship clause to the Senate in this way:
“This amendment which I have offered is simply declaratory of what I regard as 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 born in the United States who are foreigners, aliens [or] 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.” [Erler, cont’d]
This use of the bracketed “[or]” is fully justified when this statement is read in the light of the Civil Rights Act, which explicitly excludes foreigners (and aliens) from birth-right citizenship, an exclusion that was authorized by an overwhelming majority of the same Congress that approved the citizenship clause of the 14th Amendment. The many statements in the debate by supporters of the citizenship clause support this conclusion. [Erler, cont’d]
III. BIRTHRIGHT CITIZENSHIP: SHOULD IT APPLY TO THE CHILDREN BORN TO ILLEGAL ALIENS?
Citizenship must be considered in the context of some absolutes, as articulated in the Constitution:
(1) A sovereign nation has the authority to control immigration and to determine and to ascertain who is entering the country, as well as to establish guidelines and laws as to WHO can enter the country. Article I, Section 8 articulates this as one of the core and primary functions of the general, or federal, government. The Immigration & Naturalization Act outlines the law related to the function of immigration and naturalization, and it also outlines where authority is delegated to the President.
(2) Government power is shared or divided, whichever way you choose to look at it, between the States and the federal government. The government was created to serve the States and to aid them in their ability to work together in the form of a Union; the government power delegated to it is clear and can be summed up in general terms: to regulate commerce, to regulate immigration and naturalization, to establish a uniform system of currency, to act as a common agent for the states on the international stage and with Indian tribes, and to establish a common army and navy to keep the states safe and secure and to make sure essential federal laws are enforced. The functions of the federal government were intended to affect the states, to assist them in their sovereign responsibilities; they were not intended to reach inside the states to regulate their people. It was to be the States themselves who would be responsibility to legislate for the benefit and service for their people. All government power not expressly delegated to the federal government by the Constitution is reserved to the States, or to the people. This is the division of power, the basis for our “federal” system, restated by the Tenth Amendment. (“The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.”) Legally and historically speaking, certain functions have been reserved to the States, and these have been summed up by the term “state police powers.” A state’s police powers includes the right to legislate (regulate) “for the health, safety, welfare, and morality” of its people. Typical state functions include legislation related to education, voting, health, law enforcement, property and zoning/land use, marriage, professional certifications.
Keeping that explanation in mind, people live or reside in states, except for the District of Columbia, of course and other US territories. No one can be a United States citizen who is not first a citizen of a state and therefore a responsibility of such state. Because the federal government serves the interests of the States, if the States understand Section 1 of the 14th Amendment to require individuals to be “subject to the jurisdiction” of the United States” (ie, the special protections of citizenship offered by the US Constitution), then that is what the 14th Amendment MUST mean. If States do NOT want the magnet of automatic citizenship (and hence, chain migration) for those who come here illegally (as well as the burden on the state associated with it), then that is the lens through which the 14th Amendment must be viewed and interpreted.
(3) It is important to recognize and understand the significance of a constitution, and particularly of our Constitution. As Thomas Paine explained: “A constitution is not the act of a government, but of a people constituting a government; and government without a constitution is power without a right. All power exercised over a nation, must have some beginning. It must be either delegated, or assumed. There are not other sources. All delegated power is trust, and all assumed power is usurpation. Time does not alter the nature and quality of either.” (Rights of Man, 1791-1792) The key point is that the Constitution is the People’s document – the rightful and legal members of the society we call the United States of America. It embodies the People’s and the States’ intent and NOT government’s intent.
(4). Section 1 of the 14th Amendment reads: “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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Most people understand, and even the Supreme Court has agreed in prior opinions, that non-citizens are not entitled to the protections provided by our Constitution. (They are entitled to be have their inalienable rights respected, of course, but the rights of citizenship are only available to those who can rightfully and legally be citizens).
(5) The cases regarding the citizenship of those born on US soil (ie, “birthright citizenship”) have only involved those parents who were here in the country legally. The Supreme Court has never addressed the question of birthright citizenship to the child of someone who has intentionally entered the US illegally. Some advocates for birthright citizenship for those of illegal immigrants point to the 1898 case of United States v. Wong Kim Ark, but that case merely held that a child born on US soil to parents who were lawfully, permanent (legally, “domiciled”) residents was a citizen. The parents who gave birth had a legal reason for being in the United States; they had “permission.” Because the United States has laws governing the entrance of foreigners and aliens into our country, for the purposes of the Citizenship Clause and birthright citizenship, it should be assumed that birthright citizenship applies when the mother has arrived here legally. As Mark Levin would say: “A person can’t self-emigrate.” There are laws – immigration laws.
(6) When the 14th Amendment was introduced and ratified, the country didn’t have an illegal immigration problem
(7) In no sane, rational world can an element of the Rule of Law (here the “Citizenship Clause”) be taken to reward, and even encourage, the breaking of the needful and essential laws of the United States.
(8) In two cases, the US Supreme Court has decided that the Citizenship Clause’s term “subject to the jurisdiction thereof” (ie, the jurisdiction of the United States – ie, subject to the full extend of its laws) means subject to the English common law doctrine of “allegiance.” In the more crucial case, United States v. Wong Kim Ark, the “allegiance” rationale was central to the holding.
The best way to determine what “subject to the jurisdiction thereof” was intended to mean would be to uncover evidence that state legislatures ratifying the 14th Amendment understood “subject to the jurisdiction thereof” to exclude illegal aliens (“invaders”) and their children. It is the understanding of, or meaning to, the ratifiers, moreso than the intent of the drafters, that carries most weight in constitutional questions. Commentary from the Congressional debates is certainly helpful evidence of meaning, but relying on it entirely would be foolish. It’s only half the puzzle. Commentary from the debates in the state ratifying conventions carry far more weight because that evidenced the “meeting of the minds” – the understanding – by those who agree to be bound by the amendment. In some cases, the meaning as evidenced by the Congressional record is the same as the understanding of the states; yet, sometimes the states read the amendment differently or foresee how it can be enlarged or abused and seek to limit its application in their conventions. The question is whether illegal aliens are a group of people that the US is willing to concede are entitled to any benefits or protections under our Constitution and our laws (subject to our jurisdiction”). We know illegals go through great lengths to evade our jurisdiction. We know illegals are treated differently by our laws than ordinary legal citizens (they are allowed to continue breaking our laws, for one). We know sanctuary cities provide safe zones for illegal aliens to live without legal US status (no such “safe” zones exist for legal citizens to break laws).
(9) Why should the evaders of our laws be then able to claim the protections OF our law? Why should we interpret the 14th Amendment to reward those who intentionally break and evade our laws? It wouldn’t make sense. It would fly in the face of the very meaning and intent of “sovereignty” and of our “Rule of Law.”
(10) It is not a straightforward assumption that a child of illegal aliens, if born in the United States, is automatically, at the moment of birth, subject to the jurisdiction of the United States. The criminality of the mother, or the parents, is imputed to the newborn. “But for” analysis supports this conclusion. “But for” the criminality of the parents, the baby would not have been born in the United States.
Should the newborn child be considered independent of the parents? Certainly not. In no situation is a newborn considered anything other than a responsibility of the parents. It has no free will, no thought, no sense of independence.
(11) The 14th Amendment was never legally or legitimately passed. Refer to the Appendix. [See David Lawrence, “There Is No 14th Amendment!”, Sept. 27, 1957; https://www.constitution.org/14ll/no14th.htm and Douglas H. Bryant, “Unorthodox and Paradox: Revisiting the Fourteenth Amendment,” Alabama Law Review, Vol. 53, 2:555. Referenced at: https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf. Bryant’s article is included at the end of this article, in the Appendix]
Birthright citizenship is currently a policy whereby the children of illegal aliens born within the geographical limits of the U.S. have been automatically entitled to American citizenship. Trump, correctly, says it is a great magnet for illegal immigration. Today it is the magnet for illegal Hispanics. Tomorrow it may be the magnet for Islamic radicals.
Democrats, open-border activist groups, and others on the left, as well as other critics of Trump’s believe that this policy is an explicit command of the Constitution, embraced by the 14th Amendment and consistent with the British common-law system (see Appendix). As Edward Erler writes: “This is simply not true.”
Mark Levin, “Birthright Citizenship,” Mark Levin Show (October 30, 2018) – https://www.youtube.com/watch?v=vefyjFcbiNU
John Eastman, “Birthright Citizenship is Not Actually in the Constitution,” NY Times, December 22, 2015. Referenced at: https://www.nytimes.com/roomfordebate/2015/08/24/should-birthright-citizenship-be-abolished/birthright-citizenship-is-not-actually-in-the-constitution
David Lawrence, “There Is No 14th Amendment!”, U.S. News & World Report, September 27, 1957; posted in The Constitution Society. Referenced at: https://www.constitution.org/14ll/no14th.htm
Epps, Garrett (2010) “The Citizenship Clause: A “Legislative History”, American University Law Review: Vol. 60: Iss. 2, Article 2. Referenced at: http://digitalcommons.wcl.american.edu/aulr/vol60/iss2/2 OR:
Rob Nateson, “An Objective Guide to Birthright Citizenship,” Tenth Amendment Center, August 31, 2015. Referenced at: https://tenthamendmentcenter.com/2015/08/31/an-objective-guide-to-birthright-citizenship/
Maggs, Gregory E., “A Critical Guide to Using the Legislative History Of The Fourteenth Amendment to Determine The Amendment’s Original Meaning (2017). A Critical Guide to Using the Legislative History of the Fourteenth Amendment to Determine the Amendment’s Original Meaning,” 49 Conn. L. Rev. 1069 (2017); GWU Law School Public Law Research Paper No. 2017-77; GWU Legal Studies Research Paper No. 2017-77. Referenced at: https://ssrn.com/abstract=3068014
Dred Scott v. Sandford, 60 U.S. 393 (1857), Cornell Law Library – https://www.law.cornell.edu/supremecourt/text/60/393
Dred Scott, Wikipedia – https://en.wikipedia.org/wiki/Dred_Scott
Douglas H. Bryant, “Unorthodox and Paradox: Revisiting the Fourteenth Amendment,” Alabama Law Review, Vol. 53, 2:555. Referenced at: https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf
Congressional Globe, 39th Cong., 1st Sess. (1866), 2768-2769 (Sen. Wade).
Gregory E. Maggs, “A Critical Guide to Using the Legislative History Of The Fourteenth Amendment to Determine The Amendment’s Original Meaning,” 49 Conn. L. Rev. 1069 (2017). Referenced at: https://scholarship.law.gwu.edu/cgi/viewcontent.cgi?referer=https://www.google.com/&httpsredir=1&article=2572&context=faculty_publications
Edward J. Erler, “Trump’s Critics Are Wrong About the 14th Amendment and Birthright Citizenship,” National Review, August 19, 2015 (but re-printed in 2018). Referenced at: https://www.nationalreview.com/2015/08/birthright-citizenship-not-mandated-by-constitution/
I. US CONSTITUTION, Article I, Section 8:
The Congress shall have power to lay and collect taxes, duties, imposts and excises, to pay the debts and provide for the common defense and general welfare of the United States; but all duties, imposts and excises shall be uniform throughout the United States;
To regulate Commerce with foreign Nations, and among the several States, and with the Indian Tribes;
To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States;
To coin Money, regulate the Value thereof, and of foreign Coin, and fix the Standard of Weights and Measures;
To provide for the Punishment of counterfeiting the Securities and current Coin of the United States;
To establish Post Offices and Post Roads;
To promote the Progress of Science and useful Arts, by securing for limited Times to Authors and Inventors the exclusive Right to their respective Writings and Discoveries;
To constitute Tribunals inferior to the supreme Court;
To define and punish Piracies and Felonies committed on the high Seas, and Offenses against the Law of Nations;
To declare War, grant Letters of Marque and Reprisal, and make Rules concerning Captures on Land and Water;
To raise and support Armies, but no Appropriation of Money to that Use shall be for a longer Term than two Years;
To provide and maintain a Navy;
To make Rules for the Government and Regulation of the land and naval Forces;
To provide for calling forth the Militia to execute the Laws of the Union, suppress Insurrections and repel Invasions;
To provide for organizing, arming, and disciplining, the Militia, and for governing such Part of them as may be employed in the Service of the United States, reserving to the States respectively, the Appointment of the Officers, and the Authority of training the Militia according to the discipline prescribed by Congress;
II. 14th AMENDMENT, Section 1
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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
III. DRED SCOTT case – Facts of the Case and Judicial History
Dred Scott was born into slavery circa 1799 in Southampton County, Virginia. It is not clear whether Dred was his given name or a shortened form of Etheldred. In 1818, Peter Blow and his family took their six slaves to Alabama, where the family ran an unsuccessful farm in a location near Huntsville that is now occupied by Oakwood University. The Blows gave up farming in 1830 and moved to St. Louis, Missouri, where they ran a boarding house. Dred Scott was sold to Dr. John Emerson, a surgeon serving in the United States Army. After Scott learned he would be sold to Dr. Emerson and relocated to Rock Island, Illinois, he attempted to run away. His decision to do so was spurred by a distaste he had previously developed for Dr. Emerson. Scott was temporarily successful in his escape as he, much like many other runaway slaves during this time period, “never tried to distance his pursuers, but dodged around among his fellow slaves as long as possible.”
Eventually, he was captured in the “Lucas Swamps” of Missouri and taken back. Blow died in 1832, and historians debate whether Scott was sold to Emerson before or after Blow’s death. Some believe that Scott was sold in 1831, while others point to a number of slaves in Blow’s estate who were sold to Emerson after Blow’s death, including one with a name given as Sam, who may be the same person as Scott.
As an army officer, Dr. Emerson moved frequently, taking Scott with him to each new army posting. In 1836, Emerson and Scott went to Fort Armstrong, in the free state of Illinois. In 1837, Emerson took Scott to Fort Snelling, in what is now the state of Minnesota and was then in the free territory of Wisconsin. There, Scott met and married Harriet Robinson, a slave owned by Lawrence Taliaferro. The marriage was formalized in a civil ceremony presided over by Taliaferro, who was a justice of the peace. Since slave marriages had no legal sanction, supporters of Scott would later point to this ceremony as evidence that Scott was being treated as a free man. Nevertheless, Taliaferro transferred Harriet to Emerson, who treated the Scotts as his slaves.
Emerson moved to Jefferson Barracks in 1837, leaving the Scott family behind and leasing them out to other officers. In February 1838, Emerson met and married Eliza Irene Sanford at Fort Jesup in Louisiana, whereupon he sent for the Scotts to join him. While on a steamboat on the Mississippi River, between the free state of Illinois and the Iowa district of Wisconsin Territory, Harriet Scott gave birth to their first child, whom they named Eliza after their mistress. They later had a daughter, Lizzie.
The Emersons and Scotts returned to Missouri in 1840. In 1842, Emerson left the Army. After he died in the Iowa Territory in 1843, his widow Irene inherited his estate, including the Scotts. For three years after Emerson’s death, she continued to lease out the Scotts as hired slaves. In 1846, Scott attempted to purchase his and his family’s freedom, offering $300, about $8,000 in current value. However, Irene Emerson refused, prompting Scott to resort to legal recourse.
The Dred Scott case of the U.S. Supreme Court, which denied Scott his freedom by ruling that negro-slave descendants were not U.S. citizens, was the end of years of legal cases during 1846-1857, in lower federal district court and Missouri courts which had granted Dred Scott freedom for about 2 years, until overturned upon appeal.
Back in 1846, having failed to purchase his freedom, Scott filed legal suit in St. Louis Circuit Court. Scott stood on solid legal ground, because Missouri precedent dating back to 1824 had held that slaves freed through prolonged residence in a free state would remain free when taken back to Missouri. The doctrine was known as “Once free, always free”. Scott and his wife had resided for two years in free states and free territories, and his eldest daughter had been born on the Mississippi River, between a free state and a free territory.
Dred Scott was listed as the only plaintiff in the case, but his wife, Harriet, played a critical role, pushing him to pursue freedom on behalf of their family. She was a frequent churchgoer, and in St. Louis, her church pastor (a well-known abolitionist) connected the Scotts to their first lawyer. The Scott children were around the age of ten at the time the case was originally filed, which was the age when younger slaves became more valuable assets for slave owners to sell. To avoid the family from breaking up, Harriet urged Dred to take action.
The Scott v. Emerson case was tried in 1847 in the federal-state courthouse in St. Louis. Dred Scott’s lawyer was originally Francis B. Murdoch and later Charles D. Drake. Because more than a year elapsed from the time of the initial petition filing until the trial, Drake moved away from St. Louis during that time. Samuel M. Bay tried the case in court. The verdict went against Scott, as testimony that established his ownership by Mrs. Emerson was ruled to be hearsay. However, the judge called for a retrial, which was finally held in January 1850. This time, direct evidence was introduced that Emerson owned Scott, and the jury ruled in favor of Scott’s freedom.
Irene Emerson appealed the verdict. In 1852, the Missouri Supreme Court struck down the lower court ruling, arguing that growing antislavery sentiment in the free states made it no longer necessary for Missouri to defer to the laws of free states. In doing so, the court had overturned 28 years of precedent in Missouri. Justice Hamilton R. Gamble, who was later appointed governor of Missouri, sharply disagreed with the majority decision and wrote a dissenting opinion.
In 1853, Scott again sued; this time under federal law. Irene Emerson had moved to Massachusetts, and Scott had been transferred to Irene Emerson’s brother, John F. A. Sanford. Because Sanford was a citizen of New York, while Scott would be a citizen of Missouri if he were free, the Federal courts had diversity jurisdiction over the case. After losing again in federal district court, they appealed to the United States Supreme Court in Dred Scott v. Sandford. (The name is spelled “Sandford” in the court decision due to a clerical error). And well, the rest is history. The Supreme Court handed down its opinion on March 6, 1857.
IV. THE BRITISH COMMON LAW
The framers of the Constitution were well-versed in the British common law, having learned its essential principles from William Blackstone’s Commentaries on the Laws of England. As such, they knew that the very concept of citizenship was unknown in British common law. Blackstone speaks only of “birthright subjectship” or “birthright allegiance,” never using the terms “citizen” or “citizenship.” The idea of birthright subjectship, as Blackstone admitted, was derived from feudal law. It is the relation of master and servant: All who are born within the protection of the king owed perpetual allegiance as a “debt of gratitude.” According to Blackstone, this debt is “intrinsic” and “cannot be forfeited, cancelled, or altered.” Birthright subjectship under common law is the doctrine of perpetual allegiance.
America’s Founders rejected this doctrine. The Declaration of Independence, after all, solemnly proclaims that “the good People of these Colonies . . . are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved.” So, the common law — the feudal doctrine of perpetual allegiance — could not possibly serve as the ground of American citizenship. Indeed, the idea is too preposterous to entertain.
Consider as well that, in 1868, Congress passed the Expatriation Act. This permitted American citizens to renounce their allegiance and alienate their citizenship. This piece of legislation was supported by Senator Howard and other leading architects of the 14th Amendment, and characterized the right of expatriation as “a natural and inherent right of all people, indispensable to the enjoyment of the right of life, liberty and the pursuit of happiness.” Like the idea of citizenship, this right of expatriation is wholly incompatible with the common-law understanding of perpetual allegiance and subjectship. One member of the House expressed the general sense of Congress when he proclaimed: “The old feudal doctrine stated by Blackstone and adopted as part of the common law of England . . . is not only at war with the theory of our institutions, but is equally at war with every principle of justice and of sound public policy.” The notion of birthright citizenship was characterized by another member as an “indefensible doctrine of indefeasible allegiance,” a feudal doctrine wholly at odds with republican government.
Reference: Edward J. Erler, “Trump’s Critics Are Wrong About the 14th Amendment and Birthright Citizenship,” National Review, August 19, 2015 (but re-printed in 2018). Referenced at: https://www.nationalreview.com/2015/08/birthright-citizenship-not-mandated-by-constitution/
V. SUPREME COURT CASES (addressing the 1 Amendment’s “Citizenship Clause” – particularly the “subject to the jurisdiction thereof” clause)
The Supreme Court has addressed the Fourteenth Amendment’s “subject to the jurisdiction” language in two important cases. None of these cases definitively resolve our question. But they offer hints.
Elk v. Wilkins (1884) was decided before Congress extended citizenship to Indians who remained tribal members. In Elk, the Court ruled that an Indian born into a tribe was not a citizen unless naturalized under a statute or treaty. The Elk case is only weak evidence of the rule applied to foreigners. This is because the Constitution’s text and history suggest that the citizenship standards for tribal Indians and foreigners are different. However, the Elk case does tell us that:
* “Subject to the jurisdiction” in the 14th Amendment has a specialized meaning, different from the common meaning of “within a given territory and therefore subject to a court’s order,” as, for example, appears in the 13th Amendment.
* This meaning is connected to the concept of “allegiance,” a legal term traditionally used to determine whether a person is a natural born citizen.
* For deciding whether a child born in the U.S. receives citizenship under the 14th Amendment, the relevant issue is the parents’ allegiance when the child was born. The parents’ or child’s later decisions are irrelevant, unless the United States accepts them by statute or naturalization ceremony.
Two justices dissented from the holding in Elk. They accepted the connection between “jurisdiction” and allegiance. But they argued that an Indian becomes a citizen if he changes his allegiance by abandoning his tribe and becoming a member of his state’s political community. Their version of allegiance thus depended partly on a person’s intent.
United States v. Wong Kim Ark (1898) ruled that the U.S.-born child of two legally-resident foreigners was a natural born citizen. Horace Gray, the same justice who wrote for the Court in Elk, also wrote for the Court in Wong. The result was different in Wong primarily because the Constitution implicitly made it easier for foreigners to get automatic citizenship than tribal Indians. But the underlying approach of Elk and Wong was similar in that citizenship by birth depended more on geography rather than subjective intent.
The most important lesson of Wong was this: The Constitution’s version of “allegiance” was the version we inherited from Great Britain in 1776—not versions prevailing in other countries or under international law.
As modified by Parliamentary statute, the British version of allegiance was as follows:
* Birth in a country (or on a country’s ships) normally creates a “natural allegiance” to that country.
* A child born abroad is in allegiance to a country, and is therefore natural born, only if his father is a citizen of that country and not engaged in treasonous or felonious activities. In Anglo-American law, a person’s status usually followed that of the mother, but for allegiance the rule was partus sequitur patrem.
* Foreign residents and visitors generally are in “local allegiance” to the host country, since they submit themselves to its laws and protection. Their children born in the host country are natural born citizens of that country.
* To this last rule, there are two exceptions: When the father is a foreign diplomat or a foreign invader, he has no allegiance to the host country, and his offspring are not citizens.
Two justices dissented in Wong. They argued that the British version of allegiance should not apply in America. They contended that parents in merely local allegiance should not bestow citizenship. For example, they stated that if a foreign power occupied U.S. territory, the natural allegiance of parents should pass U.S. citizenship to their children, even if those parents had a local duty to obey the conqueror.
In my view, the Wong majority was right to hold that the British version of allegiance applies to the original Constitution. But because of developments between 1789 and 1868, the dissent made a good argument that a newer, American version applied to the 14th Amendment.
Reference: Rob Nateson, “An Objective Guide to Birthright Citizenship,” Tenth Amendment Center, August 31, 2015. Referenced at: https://tenthamendmentcenter.com/2015/08/31/an-objective-guide-to-birthright-citizenship/
VI. The Validity of the 13th and 14th Amendments (from Douglas H. Bryant’s law review article “Unorthodox and Paradox: Revisiting the Fourteenth Amendment”)
When Southern senators and representatives began arriving in Washington to take their place in the Thirty-Ninth Congress, which convened on December 4, 1865, they were confronted with two opposing legal signals. The Secretary of State’s proclamation that the13th Amendment had been ratified seemed to suggest the recognition of the validity of the Southern government. Congress, however, had no intention of making such recognition. When the 39th Congress convened, Republicans refused to seat any Southern representative, and would later declare, “no legal State governments . . . exist in the rebel state.” The Southern states were refused representation in Congress throughout the entire period in which the 14th Amendment was proposed and ratified.
There can be little doubt that, were the Southern delegations admitted into the Congress, they would not have supported the 14th Amendment. Of course, this is the exact reason the Republicans excluded them. The Southern delegations, from the Republicans’ viewpoint, seemed to be the same group of rebels who had started this crisis in the first place. Southern voters elected “no fewer than nine Confederate congressmen, seven Confederate state officials, four generals, four colonels, and Confederate Vice President Alexander Stephens.” Furthermore, the abolition of slavery would do away with the three-fifths method of determining population, which would actually give the South more power in Congress than it had before the Civil War.
Regardless of this, however, if the Southern states were still in the Union, and with legitimate governments, which the ratification of the 13th Amendment suggests, then they were entitled to sixty-one representatives and twenty-two senators. The final vote on the 14th Amendment in the House was 120-32, with 32 abstentions. The tally was far greater than the necessary two-thirds. If the excluded Southern representatives’ votes were added to the negative column, however, the two-thirds would not have been achieved. Similarly, if the twenty-two Southern senators’ votes had been added negatively to the Senate tally of 33-11, with 5 abstentions, then the vote would have ended in a tie.
It is here, then; where the first problem with the proposal of the 14th Amendment arises. If the Southern governments were legitimate enough to ratify the 13th Amendment, how is it they could be denied representation in Congress? The Constitution seems to give the Republican Congress an out. It provides in Article I, Section 5 that: “Each House shall be the Judge of the Elections, Returns and Qualifications of its own Members, and a Majority of each shall constitute a Quorum to do Business.” Thus the Constitution contemplates a legitimate congress that excludes some of its members, and allows such an exclusionary power on a majority vote.
But there is still a problem in respect to how Congress exercised this exclusionary power. The Qualification Clause gives Congress the power to serve as a “Judge” of its members’ qualifications. In this case, however, Congress made no inquiry into the qualifications of any particular Southern senators or representatives. Instead of rejecting particular men, Congress excluded all the Southern delegates, regard- less of their qualifications.
However, even a loose reading of the Qualification Clause is limited by other Constitutional provisions. Article I states that “each State shall have at Least one Representative” and Article V asserts that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate.” It appears, then, that the Constitution does not allow the Qualification Clause to serve as a textual warrant to defeat a state’s claim of representation. Congress would have to find some other way to deny Southern representation and still be a Constitutional “Congress” for the purpose of Article V.
The Republicans did have another justification for excluding the South from Congress. Article IV, Section 4, states that “the United States shall guarantee to every State in this Union a Republican Form of Government.” The Southern constitutions of 1865 looked very similar to their antebellum constitutions, with the exception that the 1865 documents had provisions outlawing slavery. The South’s antebellum constitutions, which protected slavery, had never been found to be un- republican and, in fact, Congress had on several occasions rejected abolitionist arguments that the Guarantee Clause barred the admission of new slave states. It seems very odd, then, to promote the idea that the Southern governments had rendered themselves unrepublican by freeing the slaves.
This argument supports Secretary of State Seward’s proclamation that recognized the South as having legitimate state governments still in the Union with the ability to ratify or reject proposed amendments. But, at the same time, there was nothing to keep the Republicans from advancing a new and revolutionary interpretation of the Guarantee Clause. There had never been a case of a state swapping a republican form of government for an unrepublican version, and thus there had never been any prior reason for Congress to question the validity of a government under the Guarantee From a modern point of view, at least, there seems to be quite a good argument for declaring Southern governments “unrepublican.”
No Southern government had granted blacks the right to vote, and some radicals in Congress argued that “republican government required not merely that blacks be free but that they be enfranchised.” This argument was hard for many Republicans to accept. For one reason, only six Northern states had granted blacks the right to vote by 1865, and during the period where Southern states were excluded, seven Northern states defeated proposals for black suffrage in popular referenda. The best they could do was to point out that in the South one- half to one-third of the eligible male voters were disenfranchised, while in the North, only a minuscule portion of male voters were excluded.
Further, if black suffrage was required, did a republican government also require women’s suffrage? All this lead many Republicans to become uneasy over the possibility that the federal government might soon have some permanent role in structuring state governments. Therefore, in preparing the document justifying Congress’s power to exclude the Southern states and still propose the 14th Amendment, the Congress, while still using the Guarantee Clause as its legal basis, looked not at the substance of the Southern constitutions, but on the presidential process of setting up the state governments.
In determining whether the Guarantee Clause may properly serve as a basis for constitutionally excluding Southern representation, it must be noted that, with two exceptions, everything in the Constitution, including the Guarantee Clause, may be changed or eliminated through amendment. The first exception expired in 1808. The clause in Article V, however, which states that “no State, without its Consent, shall be deprived of its equal Suffrage in the Senate,” may not be altered and is forever a part of the Constitution. If this clause was so important to the framers of the Constitution that they declared it unamendable, can it really be trumped by the Guarantee Clause?
Even if one agrees with the reasonable argument that the South’s governments were so unrepublican that the Guarantee Clause could allow Congress to exclude Southern representation and still propose the 14th Amendment in accordance with Article V, there still remains one unavoidable problem. For while that argument potentially saves the proposition that the 14th Amendment was constitutionally proposed, it necessarily admits that the 13th Amendment was never ratified. How could an unrepublican and thus unrecognized government’s vote count towards the ratification of the 13th Amendment?
One other matter clouds the proposal of the 14th Amendment. Even with the Southern delegations excluded, an initial poll of support for the Amendment in the Senate showed that the Senate was still one vote shy of the required two-thirds. One outspoken opponent of the Amendment was John. P. Stockton of New Jersey. Stockton had taken the oath of office and was formally seated on December 5, 1865, when the 39th Congress convened. While it only takes a majority vote to refuse to seat a congressman, the Constitution requires a two-thirds vote to expel a member who has already been seated. A motion was passed by only a bare majority in the Senate to expel Stockton. Thus, Stockton was unconstitutionally expelled. Only through this bit of chicanery did the 14th Amendment gain its requisite two-thirds majority in the Senate.
While the proposal of the 14th Amendment seems trouble- some, the ratification process is even more perplexing and irregular. Once the Amendment had been “proposed” in Congress it was sent to all existing state governments, North and South. Here lies an interesting inconsistency: If there were no legitimate republican governments in the South, why did Congress send these illegitimate governments the proposed 14th Amendment? It seems the very fact that Congress sent the 14th Amendment to the South for ratification serves as a tacit endorsement that the Southern states had legitimate governments, or at least that these states were “still full-fledged members of the Union.”
Yet these very governments had been denied representation in Congress, and, as we shall see, would be abolished and the South divided into military districts after their refusal to ratify. Against this dubious background, some states began to ratify the Amendment. Twenty-eight states were needed to ratify, and rejection by ten states would prevent ratification. The first wave of states to ratify included Connecticut, New Hampshire, Tennessee, New Jersey, and Oregon. The ratifications of Tennessee and Oregon, however, are troublesome. In Tennessee, opponents of the Amendment absented themselves from the House in order to prevent a quorum. This did not stop the supporters of the Amendment, who forcibly seized two absent members and held them in a committee room. The House ignored a court order to release the two and overruled the Speaker, who ruled there was no quorum present. Thus, the Tennessee House voted for ratification amid significant controversy.
Ratification in Oregon was also irregular. The Amendment supporters had a three vote majority in the House, but two of their seats were disputed. The Amendment was quickly put to a vote and ratified by three votes. The disputed seats were later awarded to Democrats on the grounds that the Republican supporters of the Amendment were illegally elected. Therefore, Oregon would later rescind, by one vote, its ratification of the 14th Amendment.
Regardless of these controversies, by February 1, 1867, only seventeen states had ratified the 14th Amendment and eleven had rejected it, one more than the ten required to prevent ratification. The 14th Amendment appeared defeated. Congress would have to formulate a new strategy to get the Amendment ratified. This new strategy would see Congress exercise power well beyond that contemplated by Article V, and the ratification of the 14th Amendment began a course of action that cannot be squared with the text of the Constitution.
Enter – The Reconstruction Acts.
Senator Doolittle of Wisconsin, in a statement before Congress, demonstrated quite clearly the new strategy Congress would pursue to ensure the ratification of the 14th Amendment: “The people of the South have rejected the constitutional amendment, and therefore we will march upon them and force them to adopt it at the point of bayonet, and establish military power over them until they do adopt it.”
This statement exemplified how many moderate Republicans were exasperated by the South’s refusal to accept the 14th Amendment. This refusal, coupled with rising violence against blacks in the South and President Johnson’s botched plan to promote Southern re-admission, resulted in a resounding victory for Republicans in the 1866 Congressional election. The Republicans viewed this one-sided victory as a mandate in favor of the 14th Amendment, and would not allow the initial rejection by the South to curb their efforts to seek its ratification.”
Indeed, on March 2, 1867, Congress passed the first Reconstruction Act over President Johnson’s veto. The Act stated that “no legal State governments . . . exist in the rebel States,” and divided the South, with the exception of Tennessee, into military districts. The Act served to enfranchise black males and to disenfranchise large numbers of white voters. Moreover, the Act required these voters in each state to form new constitutions, to be approved by Congress, and to ratify the 14th Amendment. Even then, however, before the “State shall be declared entitled to representation in Congress,” the 14th Amendment must have “become a part of the Constitution of the United States.” The Act further proclaimed that “until the people of said rebel States shall be by law admitted to representation in the Congress of the United States, any civil governments which may exist therein shall be deemed provisional only, and in all respects subject to the paramount authority of the United States at any time to abolish, modify, control, or supersede the same.”
Yale University scholar, Bruce Ackerman, noted that, “Up until now, it was possible to drape a legal fig leaf over each Congressional action. But at this point, we are in the presence of naked violations of Article Five.”‘ University of Alabama history professor, Forrest McDonald, has stated that, “the act flew in the face of the Constitution in a large variety of ways.” Thus, as these commentators note, there is simply no way to fit the Reconstruction Acts within the bounds of the Constitution, yet the 14th Amendment owes its existence in the Constitution to this troublesome legislation.
Additionally, the Reconstruction Act seemed to run afoul of a recent decision (1866) of the Supreme Court. In Ex parte Milligan,” the Court held that military trials of civilians in times of peace and outside of war zones were un-constitutional, and stated that “martial rule can never exist where the courts are open.” Since the Civil War had been over for almost two years prior to the passage of the Reconstruction Acts and because Southern governments and courts had been operating for some time, the Reconstruction Act seemed to run counter to the Court’s ruling in Milligan. Further, the Court spoke of martial law in strong terms:
“If the country is subdivided into military departments for mere convenience . . . republican government is a failure, and there is an end of liberty regulated by law, martial law, established on such a basis, destroys every guarantee of the Constitution, and effectually renders the ‘military independent of and superior to the civil power.”
The Republicans in Congress denounced the decision as a “piece of judicial impertinence which we are not bound to respect.” Others said that the War was not over until Congress said so, and in the meantime the South was a war zone in which martial law could be imposed. At any rate, Congress, as we shall further see, had no intention of letting the Supreme Court get in its way. The Reconstruction Act also deprived most white voters in the South of their political rights, without due process of law, on a whole-sale basis. President Johnson noted this in his lengthy veto message:
“Here is a bill of attainder against 9,000,000 people at once. It is based upon an accusation so vague as to be scarcely intelligible and found to be true upon no credible evidence. Not one of the 9,000,000 was heard in his own defense. The representatives of the doomed parties were excluded from all participation in the trial. The conviction is to be followed by the most ignominious punishment ever inflicted on large masses of men. It disfranchises them by hundreds of thousands and degrades them all, even those who are admitted to be guiltless, from the rank of freemen to the condition of slaves.”
Congress quickly brushed aside President Johnson’s stinging veto message.
More importantly, in holding that no legitimate republican state governments existed in the South, with the exception of Tennessee, Congress had trapped itself in an interesting inconsistency. These same governments had been called upon to ratify the 13th Amendment. Five Southern states had ratified the 13th Amendment and their votes had been counted towards the required two-thirds majority. How could these governments have been legitimate enough to ratify the 13th Amendment, but not legitimate when they rejected the 14th? Once again, then, we are faced with the “13th -14th Amendment paradox,”‘ which plagues the 14th Amendment from proposal to ratification. For, if Congress was right, and no legitimate state governments actually existed in the South, then Secretary of State Seward7s proclamation that the 13th Amendment was ratified is also illegitimate. Therefore the 13th Amendment has not really been ratified, and slavery has not constitutionally been abolished. But if Congress was wrong, and the Southern governments were legitimate, then the 14th Amendment is dead at this point. Therefore the Reconstruction Act is unconstitutional because the South’s legitimate governments had been denied representation in Congress during the Amendment’s proposal and had rejected the proposed amendment once submitted to them.
Placing aside this “13th-14th Amendment Paradox” for the moment, if possible, there are further problems and inconsistencies on the face of the Reconstruction Act. The coercive nature of the Act itself is well beyond anything contemplated by Article V. Article V gives Congress the power to propose amendments and allows them to determine whether ratification will be by state legislatures or state conventions. Through the Reconstruction Act, however, Congress is attempting to exert a power to override a veto by the states of a proposed amendment. The Southern governments must have been viewed as legitimate because they were allowed to ratify the 13th Amendment and were initially sent the 14th Amendment. But now, through the Reconstruction Act, Congress is saying that their refusal to accept the Amendment has deprived them of all political power in the councils of the nation. Further, Congress is also telling the South that if they ever want that power back, the 14th Amendment must become part of the Constitution, and until it does, the South will be governed by the Union army. This is entirely inconsistent with the limited power granted to Congress in Article V. Surely, the founding fathers never contemplated that an amendment to the Constitution could be lawfully compelled “at the point of the bayonet,” or that a state could be placed under the duress of continued and compelling military force to achieve the ratification of a desired amendment.
Even placing aside the coercive nature of the Reconstruction Act, there is a further unavoidable problem with the Act’s inconsistent internal logic. The Act stated that no legal republican state governments existed in the South. According to the Act, in order for Congress to legally recognize Southern governments, the 14th Amendment must have been ratified by the Southern states, and must have become part of the Constitution. The key inconsistency is that the Amendment must have been ratified by the provisional government of a Southern state before that government was legally recognized. Yet, what good is ratification by a government that is not legally recognized or entitled to representation in Congress? And if ratification by a congressionally unrecognized state government is allowed, why can’t an unrecognized state government reject an amendment?
With this problem duly noted, we may now further question the ratification of the 14th Amendment by Tennessee. Tennessee had initially ratified the 14th Amendment when other Southern governments had rejected it. Upon ratification of the 14th Amendment by Tennessee, Congress, on July 24, 1866, declared Tennessee restored to the Union. But Tennessee’s government had been set up under the direction of the Chief Executive, as had all the other Southern governments. Tennessee’s government was no different from the other Southern governments, with the exception that it had enough votes to ratify the 14th Amendment. So, if Tennessee’s government was legitimate enough to accept the 14th Amendment, why were the other Southern governments illegitimate when they refused? But as Congress’s proclamation points out, Tennessee was declared restored to the Union because it had ratified the 14th Amendment. Again, this raises the question, what good is a ratification from a state whose government is not legally recognized?
This, however, brings us back to a now familiar problem. If the Southern governments were legitimate enough to ratify the 13th Amendment, and Tennessee’s government was legitimate enough to ratify the 14th, then the Reconstruction Acts cannot be constitutional. For Congress had no more power in 1867 to abolish a valid state government, than it would today to put New England under military rule for refusing to ratify a proposed anti-abortion amendment.
Both North and South realized the Reconstruction Acts stood on unstable constitutional grounds, and that the Supreme Court would likely have the final say. In fact, after the Milligan decision, Congress had introduced a flurry of bills and constitutional amendments seeking to limit the power of the Supreme Court. The House passed a bill which would have required a two-thirds Court majority to overturn legislation deemed unconstitutional, but the bill did not make it out of the Senate. Some congressional Republicans even sought to have the Supreme Court abolished. These Republican attacks on the Supreme Court may have convinced some justices “that discretion was the better part of valor,”‘ because the Court would dismiss two suits by state officials in the South to enjoin the enforcement of the Reconstruction Acts.
In Mississippi v. Johnson (1866), the Supreme Court refused to issue an injunction against enforcement of the Reconstruction Acts by the President. The Court noted that if it did grant the injunction against the President on the grounds of unconstitutionality, the President might very well be impeached by the House for complying with the Court order and refusing to enforce the Act. The Court cited this “collision . . . between the executive and legislative departments” in refusing to grant the injunction, and therefore dodged the question of the Reconstruction Acts’ constitutionality.
In Georgia v. Stanton (1867), the Supreme Court dismissed an action by the State of Georgia to restrain the Secretary of War and other executive officials from enforcing the Reconstruction The Court noted that the Acts’ execution would “annul, and totally abolish the existing State government of Georgia, and establish another and different one in its place; in other words, would overthrow and destroy the corporate existence of the State.” However, the Court held that this was a political question and was not justiciable. Again the Supreme Court had dodged the issue of the constitutionality of the Reconstruction Acts. The Court did hint, however, that if an action was brought relating to the rights of “persons or property,” it would hear the matter.
The Supreme Court’s language in Stanton left the door open for one more challenge to the Constitutionality of the Reconstruction Acts in Ex parte McCardle. McCardle, the editor of the Vicksburg Times, was arrested by military authorities in Mississippi for publishing an editorial denouncing the constitutionality of the Reconstruction Acts. He was charged with impeding reconstruction; inciting insurrection, disorder, and violence; libel; and disturbance of the peace, and was to be tried before a military court. McCardle filed for a writ of habeas corpus on the ground that the Reconstruction Act was unconstitutional. The district court refused to grant this petition for a writ of habeas corpus and McCardle appealed to the Supreme Court. The Supreme Court agreed to hear the case and denied the government’s motion to dismiss for lack of jurisdiction.
After the Court denied the government’s motion to dismiss, word soon reached congressional leaders that the Supreme Court would be forced to declare the Reconstruction Acts unconstitutional. The Congressional response was quick. Republicans passed a bill that repealed the Habeas Corpus Act of 1867, the act under which McCardle had appealed, thereby removing the Supreme Court’s jurisdiction in the case. Congress noted that the purpose of this bill was to prevent the Supreme Court from passing on the validity of the Reconstruction Acts. The case had already been argued about two weeks before Congress passed its bill striping the Supreme Court of its jurisdiction, giving the Court time to issue a decision. The Court, however, backed down from congressional authority, fearing that if they ruled on the Reconstruction Acts, the Republicans in Congress might retaliate by inflicting even more damage upon the Court’s institutional independence.
Despite a strong dissent by Justice Grier, the Court decided to wait for the bill stripping its jurisdiction to become law. The Court dismissed McCardle’s case for want of jurisdiction and refused to find the jurisdiction stripping legislation unconstitutional. The Court had again, though just barely and for the last time, dodged the question of the Reconstruction Act’s constitutionality.
While the constitutionality of the Reconstruction Acts was being challenged in the Supreme Court, military officials, and twenty thousand federal troops, had begun registering voters in the South in order for new Southern governments to be organized. After the registration of voters was completed in September 1867, black voters made up a majority of voters in five of the ten unreconstructed states. Thirty-five percent to forty-five percent of potential white voters were either excluded from voting because of the Reconstruction Acts, or failed to register. Southerners still made some attempts to resist the forced creation of new governments. In Alabama, for example, most voters stayed away from the polls to prevent the new constitution from being approved by the required majority of registered voters. This tactic was tried in other Southern states as well, but Congress responded by repealing the “majority-of-the-voters” requirement, and allowed for a majority of the votes cast to enable the new constitutions. Thus, all the unreconstructed states “approved” new constitutions, and the new governments began ratifying the 14th Amendment.
Arkansas was the first of the unreconstructed Southern states to act. For the state’s new constitution to be legal, it required congressional approval, but it’s new legislature informally convened and approved the 14th Amendment on April 6, 1868. The Congress voted to admit Arkansas to representation in Congress on June 22, 1868. It should be pointed out, then, that Arkansas ratified the 14th Amendment, even though it still had “no legal state governments” until June.
Florida was the next of the unreconstructed states to act. Florida, in May of 1868, had approved its new constitution that had been drafted by a convention presided over by United States Army Colonel John Sprague in full military uniform. Florida ratified the 14th Amendment on June 9, 1868. While Congress debated the readmission of Florida, it was pointed out that the text of the Amendment ratified by the state contained numerous errors and variations. Some senators, therefore, argued that Florida had not properly adopted the Amendment. Yet, after the ratifications of New York, Pennsylvania, Wisconsin, and Michigan were examined and found to have similar errors, some of them substantive, Congress decided that ratification in any form would suffice. Florida was therefore readmitted as a legal government. However, like Arkansas, Florida had ratified the 14th Amendment before Congress declared it a legal government.
After Florida ratified the Amendment, Congress changed the rules slightly. It declared that all the Southern states had, by adopting new constitutions, formed republican governments, and would be entitled to representation once they ratified the 14th Amendment. Congress, then, would no longer have to consider representation of an unreconstructed state once it ratified the Amendment. A state would automatically have its representation restored once it ratified the 14th Amendment. On these terms, North Carolina ratified the Amendment on July 2, 1868, Louisiana and South Carolina on July 9, 1868, and Alabama on July 16, 1868. But again, regardless of the coercive factor that ratification was still a condition precedent to admission in Congress, the governments that ratified the Amendment still cannot be considered legal state governments if they were not entitled to representation in Congress until after they ratified it.
These Southern ratifications seemed to give Secretary of State William Seward the required twenty-eight states necessary for the 14th Amendment to become law. Secretary Seward had twenty-nine ratifications on file, but prior to receiving the twenty-eighth, New Jersey and Ohio had rescinded their ratification. Nevertheless, on July 20, 1868, Secretary Seward issued a proclamation declaring the 14th Amendment ratified. However, as one commentator has pointed out, “it is hard to ignore the tell-tale signs of irregularity that peer out from the fifteenth volume of the Statutes at Large.” Seward’s proclamation shows he obviously had doubts as to the validity of all of the listed twenty-nine ratifications. Clearly, on Seward’s mind was the constitutionality of using military force to set up new Southern governments as a means securing ratification. Seward’s proclamation explained that the Amendment had “also been ratified by newly constituted and newly established bodies avowing themselves to be and acting as the legislatures, respectively, of the States of Arkansas, Florida, North Carolina, Louisiana, South Carolina, and Alabama.” As to the rescissions by Ohio and New Jersey, Seward noted that it was “a matter of doubt and uncertainty whether such resolutions” were valid. Seward further concluded his proclamation conditionally, stating, “if the resolutions of the legislatures of Ohio and New Jersey ratifying the aforesaid Amendment are to be deemed as remaining of full force and effect . . . then the aforesaid amendment has been ratified.”
Congress reacted quickly to Seward’s proclamation, and on July 21, 1868, declared all twenty-nine ratifications to be valid and that the 14th Amendment was “part of the Constitution of the United States, and it shall be duly promulgated as such by the Secretary of State.” On July 28, Seward, issued a second proclamation in conformance with the congressional resolution, and declared the 14th Amendment had “become valid to all intents and purposes as a part of the Constitution of the United States.”
The 14th Amendment has been considered a part of the Constitution ever since. Yet, 130 years after Secretary of State Seward’s proclamation, no one has answered the question of how the original reconstruction Southern governments were to be counted when they said “yes” to the 13th Amendment, but when they said “no” to the 14th Amendment, Congress had a right to destroy these governments, and then keep the new governments in the cold until they said “yes”?
Should we just go ahead and assume the validity of the 14th Amendment?
It is possible that a person, after reading the story of the ratification of the 14th Amendment, might say something like: “This is very interesting, but the 14th Amendment has been accepted as a part of the Constitution for over 130 years and we must assume its validity.” While this seems like a reasonable enough statement, there are certain unfavorable consequences forced upon one who assumes it is valid. These consequences are set out in the following scenarios from which one is required to choose from if he assumes the constitutionality of the 14th Amendment.
Scenario A: The “Thirteenth-Fourteenth Amendment Paradox.” One possibility may be to assume that the Southern governments were so “unrepublican” that they could constitutionally be excluded from Congress and deprived of their right to participate in the proposal of the Amendment. It must further be assumed that the Reconstruction Acts were constitutional and that Congress had the power to set up, through military occupation, republican governments in the South and compel ratification by these new governments and that these ratifications were valid even before Congress had declared these new governments “legal.” These assumptions save the 14th Amendment, but in a way that necessarily invalidates the 13th Amendment. For if the Southern governments were unconstitutionally unrepublican, there is no way to justify counting their ratifications towards the 13th Amendment. One is thereby left with the unfortunate choice between the validity of the 14th Amendment or the abolition of slavery.
Scenario B: Constitutional Secession. Another possibility would be to assume that a state may somehow constitutionally leave, or be removed from, the Union through some method such as an ordinance of secession or by state suicide. With this assumption, one could conclude that the Southern states were not entitled to representation in Congress and were not to be counted in determining whether three-fourths of the states had ratified an amendment. Therefore, if one also assumes that the resolutions by New Jersey, Ohio, and Oregon rescinding their ratifications were invalid, then the 14th Amendment can be saved. One who chooses to follow this scenario must not only repudiate the principle of an indissoluble Union, but also several Supreme Court decisions holding that the South had never left the Union as well as actions by the legislative and executive branches that asserted the South had never left the Union. Even if one decides that recognizing some form of secession or method for dissolution of the Union is not so bad when compared to invalidation of the 14th Amendment, this scenario is still problematic simply because it was not the method followed by Congress.
Scenario C: Ratification Outside Article V. A final method which might potentially save the 14th Amendment would be to assume that the Constitution can legally be ratified outside of the method set out in Article V. For example, one might argue that the North had a right to force the Southern governments to accept the 14th Amendment because it had the South within “the grasp of war.” This “grasp of war” theory would save both the 13th and 14th Amendments without recognizing any form of secession by assuming that these amendments were not made part of our Constitution through Article V ratification, but by Gettysburg and Appomattox. While this would save the 14th Amendment, “grasp of war” is an extremely undesirable justification for the Amendment, because while all amendments other than the Reconstruction amendments were products of the constitutional will of the American people, the 14th Amendment would then find its justification solely by the guns of the Union Army. Equally troubling is that, if the “grasp of war” theory is assumed to be a constitutional method for ratification, what other extra-Article V amendment methods might be found to exist?
The most disturbing problem arising out of the 14th Amendment ratification story is the precedent for constitutional amendment it may have set. For one to assume the constitutionality of the Amendment, they must accept its method of proposal and ratification as constitutional. Therefore, one who accepts the constitutionality of the 14th Amendment must also accept the premise that, at least in certain circumstances, Congress may deny states their representation in Congress in order to compel ratification of a desired amendment. This cannot be right, but the dilemma is heightened by the recognition that the 14th Amendment is a cornerstone of federal jurisprudence. There is simply no acceptable outcome if we are forced to choose between accepting a doctrine of congressional coercion or the 14th Amendment. The only answer, besides ignoring the question, is to re- propose the 14th Amendment.
It seems quite clear that the 14th Amendment was not ratified, if proposed, even loosely within the text of Article V of the Constitution. Article V does not give Congress the power to deny a state representation in Congress without its consent. In fact, it prohibits such conduct. Nor does Article V give Congress the power to abolish a state government when it refuses to ratify a proposed amendment. And certainly, Article V does not allow Congress to deny a state its representation until it ratifies a desired amendment. Furthermore, Article V is the only way the Constitution can be amended. The Supreme Court in Hawke v. Smith (1920) has stated:
The Fifth Article is a grant of authority by the people to Congress. The determination of the method of ratification is the exercise of a national power specifically granted by the Constitution; that power is conferred upon Congress, and is limited to two methods, by action of the legislatures of three-fourths of the States, or conventions in a like number of States. The Framers of the Constitution might have adopted a different method. Ratification might have been left to a vote of the people, or to some authority of government other than that selected. The language of the article is plain, and admits of no doubt in its interpretation. It is not the function of courts or legislative bodies, national or state, to alter the method which the Constitution has fixed.
So, if the Constitution can only be amended through Article V, and the 14th Amendment was not ratified properly under that Article, what is its status? It seems as though this question can only be answered in one way. However, having the 14th Amendment suddenly declared invalid would be disastrous. There would be a long list of cases, including many landmark cases such as Brown v. Board of Education, Roe v. Wade, all the religion and prayer cases, and McDonald v. Chicago, which would be invalidated. The question is one for the Supreme Court. Yet, in Coleman v. Miller (1939), the Court discussed the ratification of the 14th Amendment for the first, and likely the last time. The Court did not discuss whether the ratification had conformed to Article V. It said only that:
While there were special circumstances, because of the action of the Congress in relation to the governments of the rejecting States (North Carolina, South Carolina and Georgia), these circumstances were not recited in proclaiming ratification and the previous action taken in these States was set forth in the proclamation as actual previous rejections by the respective legislatures. This decision by the political departments of the Government as to the validity of the adoption of the 14th Amendment has been accepted. We think that in accordance with this historic precedent the question of the efficacy of ratifications by state legislatures, in the light of previous rejection or attempted withdrawal, should be regarded as a political question pertaining to the political departments, with the ultimate authority in the Congress in the exercise of its control over the promulgation of the adoption of the Amendment.
So, while the Court seemed to recognize that there were problems with the 14th Amendment’s ratification, it decided that Article V questions are non-justiciable political questions. It seems that whenever the Congress and the Secretary of State proclaim an amendment to be ratified, that proclamation is binding on the Court and “would not be subject to review by the courts.” While the wisdom of applying this political question doctrine to declared amendments is questionable, the Court has been true to its word in Coleman, as it has not decided a single Article V case since. Still, the ratification process of the 14th Amendment has never been reviewed by the Supreme Court and, in light of Bush v. Gore (2000), the political question doctrine may have lost favor with the Court. So, while a federal court would likely be unreceptive to an argument claiming the 14th Amendment invalid, it would make for an interesting affirmative defense. The 14th Amendment will, undoubtedly, remain a part of the Constitution, but as one commentator has stated, “no one ever became rich by predicting what the Supreme Court would do from one generation to another.” We should at least be aware of its irregular adoption and guard against such constitutional disrespect in the future. Congress should also seriously consider re- proposing the Amendment if it is concerned with preserving Equal Protection and Due Process for future generations.
The ratification story of the 14th Amendment, which shows the irregular and likely unconstitutional process by which it has been declared part of our Constitution, demonstrates that a major cornerstone of constitutional law is placed on a shaky and uneasy foundation. Un- fortunately, although one may wish to remedy the constitutional wrongs committed during its ratification, it is apparent that this cornerstone amendment should be left in place, lest the entire house of higher law as we know it should come toppling down. It is not too late, however, to shore up the foundation of constitutional jurisprudence. Congress and the states should re-propose and ratify the 14th Amendment, and thereby ensure the principles of equal protection and due process which the Amendment guarantees.
Reference: Douglas H. Bryant, “Unorthodox and Paradox: Revisiting the Fourteenth Amendment,” Alabama Law Review, Vol. 53, 2:555. Referenced at: https://www.law.ua.edu/pubs/lrarticles/Volume%2053/Issue%202/Bryant.pdf