Shortly after the Constitution went into effect, the first Congress enacted a naturalization law. Lawmakers superseded this statute just five years later. Both provisions derived from the Constitution’s grant to the legislature (in Article I, Section 8) of the power “to establish an uniform Rule of Naturalization.” That grant, along with these naturalization statutes of 1790 and 1795, edifies us about the Framers’ conception of citizenship, and of the status of aliens and their children.
Status questions about the children of aliens have moved to the fore in recent months. Central Americans, enticed by laws that perversely incentivize illegal immigration, have sought entry en masse at our southern border. This week, with an oncoming “caravan” of migrants galvanizing President Trump’s base on the eve of the midterm elections, these questions have stoked a heated debate — with all the shopworn smears of racism and bad faith that are now staples of American public discourse.
In campaign mode, the president floated the idea of issuing an executive order that would purport to deny “birthright citizenship,” i.e., to end the policy of granting American citizenship to children born in the United States to alien parents who are not legally present here. I highlight “purport” and “policy” because the president’s opponents counter that these newborn children of illegal aliens are granted citizenship by the Constitution, specifically, by the 14th Amendment. Therefore, the argument goes, this grant of citizenship is not a mere policy but a command of the highest law of the land; it may not be reversed by an executive order, or even by a law of Congress, the branch empowered to set the terms of citizenship.
That is a lot of weight to put on an amendment that had nothing to do with regulating aliens — an amendment ratified in 1868, a time when there was no federal-law concept of illegal aliens.
Rarely noticed in our era of the Beltway Behemoth is how sparse the Constitution is on the matter of central-government power over aliens. The naturalization clause is the beginning and the end of it. Congress was given the power to prescribe what aliens needed to do to become Americans. But there is not a word in the Constitution about law enforcement, nothing about which aliens would be allowed into the country, or on what conditions they would be permitted to stay.
Why is that? Because such matters were understood to be state responsibilities. The Constitution prescribes a federalist arrangement in which the states retain sovereignty. The states had control over their internal affairs. From the founding through most of the 19th century, that was understood to include deciding which non-Americans would be permitted in their territories.
America was vast, unsettled, and expanding ever westward. People were needed to fill it. And in the 1800s, aliens came to do just that, first in dribs and drabs and then, beginning in the 1840s, in droves. But, as University of Massachusetts immigration scholar Vincent J. Cannato recounted in a comprehensive 2012 National Affairs essay, it was not until 1891 — at the dawn of the progressive era, after years of urging by the federal courts and some statutory fits and starts — that Congress finally asserted federal control over immigration regulation and enforcement. Indeed, Ellis Island opened in 1892, essentially as a station charged with carrying out the 1891 Immigration Act.
This is a rich transitional history. I’ve described it only briefly here to make the point that the 14th Amendment was utterly unrelated to the challenge and complexities of immigration-law enforcement.
14th Amendment: Taking Aim at the Vestiges of Slavery
Again, the 14th Amendment was enacted in 1868, nearly a quarter-century before the federal government seized control of immigration regulation from the states. The driving objective of the Amendment was to shore up deficiencies of the 13th Amendment. Though it had formally abolished slavery upon its 1865 adoption, the 13th Amendment failed to prevent the states from denying black former slaves the privileges and immunities of citizenship.
As University of Texas Law School professor Lino Graglia has explained, Congress attempted to address this shameful situation by enacting the Civil Rights Act of 1866. President Andrew Johnson’s veto of the measure was overridden, but it heightened uncertainty about Congress’s authority to act. The purpose of the 14th Amendment was to remove all doubt.
That is the main point: The 14th Amendment was meant to ensure that the necessary relief for former slaves could not be undone by subsequent Congresses or court decisions. As we shall come to, the Supreme Court later resorted to the 14th Amendment in order to address an injustice done to an adult child of immigrants under the noxious Chinese Exclusion Act. The Court, however, was wrong to do so — certainly, to the extent that its ruling can be read (and has been read) to usurp Congress’s constitutional power to prescribe citizenship qualifications for children born in the United States of aliens who are not legally here. The 14th Amendment was about black people enslaved in America for generations. It was not about aliens transiting America illegally.
In debating birthright citizenship, and assuming based on the Supreme Court’s ruling, that the 14th Amendment was intended to speak to the issue, we have focused on the first sentence of the 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.
Patently, this had nothing to do with illegal aliens or their children. To repeat: There was no federal concept of “illegal alien” at the time. There would, moreover, have been no reason to amend the Constitution for the purpose of dictating the status of the children of aliens. Congress had that covered: Its Article I power to prescribe terms of citizenship for aliens had never been in dispute; as noted at the start of this essay, Congress had been exercising that power since shortly after the Constitution went into effect.
Like a “right to privacy” gives a woman license to kill, so interpreting the 14th Amendment to mean citizenship is granted to children born here to people not supposed to BE here is ridiculous.