The 14th Amendment: Rand Paul Is Right

Republican Kentucky Senate candidate Rand Paul has a way of getting under people’s skin with his libertarian insistence that we actually pay attention to the Constitution. 

First he dared to opine that some parts of the 1964 Civil Right Act—while commendable in its ideals—might have lacked constitutional authority. But now, he’s apparently gone too far. He’s saying that the 14th Amendment does NOT grant citizenship to the American-born children of illegal aliens.

“A lot of this is about demographics,” said Paul.  “If you look at immigrants from Mexico, they register three-to-one Democrat, so the Democratic Party is for easy citizenship and allowing them to vote.” 

Illegal immigration apologist groups such as the Institute for Policy Studies immediately took issue with Dr. Paul’s statement, calling it “a very extremist position.” No matter. The issue is not political, but constitutional and is easily solved.

Of course, to accept the solution, one must be an “originalist,” believing as Supreme Court Justice Antonin Scalia does that the Constitution is a “dead document.” If you subscribe to the Al Gore position that the Constitution is a “living document,” then you are free to make it say whatever you want.

With that caveat, let’s go back to the United States of the post Civil War era when the 14th Amendment was passed by Congress on June 13, 1866 and ratified July 9, 1868. As The Heritage Guide to the Constitution explains, prior to that time, to be a citizen of the United States you simply had to be a citizen of a state—with an exception. The Dred Scott v. Sanford Supreme Court decision of 1857 had held that no black, not even a freed black, could be a citizen. The purpose of the Fourteenth Amendment was to halt that injustice. It did so by flipping the order and making U.S. citizenship primary.

So that the amendment wouldn’t be used for mischief-making, the framers added the words “and subject to the jurisdiction thereof” to the language about birth and naturalization. The mischief they were worried about had to do with Indians.

Congress had just passed a Civil Rights Act in 1866 that stated: “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.” So the 14th Amendment simply constitutionalized that law, with one small difference. It excluded that part about “Indians not taxed.” 

If you’re a student of the Declaration of Independence, you may take note of that document’s description of Indians as “the merciless Indian Savages,” and you get an idea of the prevailing attitudes that still existed.  Sen. Jacob Howard of Ohio, who wrote the Citizenship Clause was adamant that it would not make Indians citizens of the United States. Howard argued that any Indian who maintained his tribal association was not subject to the jurisdiction of the United States. 

Howard was supported by the chairman of the Senate Judiciary Committee, Sen. Lyman Trumbull, who said the amendment meant “not owing allegiance to anybody else…subject to the complete jurisdiction of the United States.” Indians were excluded because they owed allegiance to their tribes. 

So birth alone, according to the men who wrote and promoted the 14th Amendment for ratification, was not enough. Sen. Howard went on to say that the concept of “allegiance” as it related to this issue “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.”

When Congress began extending citizenship rights to Indians in 1870, it demonstrated that it could define who was properly within the jurisdiction of the United States. Based on original intent, there is no reasonable argument against denying birthright citizenship to children of people who have entered the United States against our laws, sometimes for the explicit purpose of bearing a child.


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