The Fourteenth Amendment states that all persons born in the United States and “subject to the jurisdiction thereof” become citizens at birth, a standard known as birthright citizen-ship. The exact meaning of this phrase has become more controversial today, during an era with high rates of illegal immigration. Some members of Congress and President Trump have said that they oppose birthright citizenship for children whose parents are in the United States without authorization. Such opponents have proposed changing this standard.
In 1866, the Civil Rights Act extended birthright citizenship to persons “not subject to any foreign power, excluding Indians not taxed.” Native Americans who remained members of their tribes, and thus were not taxed, were subject to the sovereignty of their own nations. President Andrew Johnson vetoed the bill because he said it applied to persons of all races, including “the Chinese of the Pacific states, Indians subject to taxation, the people called gypsies, as well as the entire race designated as blacks.” Congress overrode the veto and also added a Citizenship Clause to the proposed Fourteenth Amendment, which set a higher standard for Reconstruction than did President Johnson.
However, the language of the new Citizenship Clause differed from the Civil Rights Act. Instead of conferring birthright citizenship to persons “not subject to any foreign power,” the new language applied to persons “subject to the jurisdiction” of the United States. Senator Jacob Howard of Michigan, who introduced the clause in the amendment, described its meaning: “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.”
But many senators disagreed about the interpretation of this change in language. According to Senator Willard Saulsbury of Delaware, the goal of the Citizenship Clause was “simply to declare that Negroes shall be citizens of the United States.” Senator Edgar Cowan of Pennsylvania argued that a foreigner “has a right to the protection of the laws; but he is not a citizen within the ordinary acceptation of the word.” He worried that the clause would make citizens of Chinese immigrants in California or a “Gypsy” born in his state. But Senator John Conness of California—an Irish immigrant—took exception, noting that Chinese immigrants in his state had already been allowed to become citizens and were few in number.
