The fascinating 1866 Senate debate on the 14th Amendment

One thing this most recent debate over birthright citizenship – and whether President Donald Trump can amend the Constitution without a congressional vote (he can’t, and would open up an awful Pandora’s box if he did) – is the renewed interest in the 1866 debate over the 14th Amendment. The Senate hearings on the issue were quite fascinating – especially in the run-up to the actual vote.

Most supporters of Trump’s potential revocation of birthright citizenship cite a statement by Michigan Senator Jacob M. Howard as he introduced the amendment. Here’s his quote via the Library of Congress with emphasis on the statement Trump supporters point towards:

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, who belong to the families of [a]mbassadors 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.

The problem with this interpretation is a failure of grammar and an overuse of commas by whoever put Howard’s statement on parchment. I honestly had to read it three times to understand exactly what Howard was saying because I was accidentally misreading it.

Howard is using a parenthetical element in the highlighted sentence. Here’s Grammarly’s description of said parenthetical element.

Interrupters are little thoughts that pop up in the middle of a sentence to show emotion, tone, or emphasis. A parenthetical element is a phrase that adds extra information to the sentence but could be removed without changing the meaning of the sentence. Both interrupters and parenthetical elements should be set off with commas.

This means we can eliminate the word ‘alien’ from Howard’s statement without it losing its meaning.

This will not, of course, include persons born in the United States who are foreigners who belong to the families of [a]mbassadors or foreign ministers accredited to the Government of the United States…

In other words, Howard was emphasizing the notion of birthright citizenship by saying everyone born in the U.S. is a citizen – unless they were an employee of a foreign government.

Howard’s assertion of birthright citizenship raised a question from Pennsylvania Senator Edward Cowan, who proceeded to raise worries about non-Anglo-Saxons:

The yellow race; the Mongol race. They outnumber us largely. Of their industry, their skill, and their pertinacity in all worldly affairs, nobody can doubt…They may pour in their millions upon our Pacific coast in a very short time. Are the States to lose control over this immigration? Is the United States to determine that they are to be citizens? I wish to be understood that I consider those people to have rights just the same as we have, but not rights in connection with our Government…Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less dangerous and much less pestiferous to society than I look upon Gypsies…I would not ties their hands by the Constitution of the United States so as to prevent them hereafter from dealing with them as in their wisdom to see fit.

This statement received quick reproach from California Senator John Conness, who defended birthright citizenship:

The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation…Here is a simple declaration that a score of a few score of human being born in the United States shall be regarded as citizens of the United States, entitled to civil rights, to the right of equal defense, to the right of equal punishment for crime with other citizens; and that such a provision should be deprecated by any person having or claiming to have a high humanity passes all my understand and comprehension.

The rest of the debate descends into a discussion on the taxation of Indians and whether those who were not taxed would be considered citizens. It should be pointed out the Senate rejected adding, “excluding Indians not taxed,” and went with the original wording of the 14th Amendment which is what’s currently in the Constitution.

It’s quite obvious the Senate wanted birthright citizenship in the 14th Amendment, based on the 1866 debate. Those who are arguing the opposite are wrong in their belief. Trump cannot change the Constitution on his own. Congress – and 3/4th of the states – would have to pass an amendment to remove birthright citizenship.