The Fourteenth Amendment’s citizenship clause differed from the common law rule in that it required owing complete allegiance only to the United States in advance rather than automatically bestowed by place of birth, i.e., only children born to parents who owed no foreign allegiance were to be citizens of the United States – that is to say – not only must a child be born but born within the complete allegiance of the United States politically and not merely within its limits. Under the common law rule it did not matter if one was born within the allegiance of another nation.
Under Sec. 1992 of U.S. Revised Statutes the same Congress who had adopted the Fourteenth Amendment had enacted into law, confirmed this principle: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Who are the subjects of a foreign power? Thomas Jefferson said “Aliens are the subjects of a foreign power.” Thus, the statute can be read as All persons born in the United States who are not alien, excluding Indians not taxed, are declared to be citizens of the United States.
Sen. Trumbull stated during the drafting of the above national birthright law debates that it was the goal to “make citizens of everybody born in the United States who owe allegiance to the United States,” and if “the negro or white man belonged to a foreign Government he would not be a citizen.”
Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, confirmed on March 1, 1866 that children under this class of aliens would not be citizens: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”
Framer of the Fourteenth Amendments first section, John Bingham, said Sec. 1992 of U.S. Revised Statutes meant “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” If this statute merely reaffirmed the old common law rule of citizenship by birth then the condition of the parents would be entirely irrelevant.
During the debates of the Fourteenth Amendment’s citizenship clause, both its primary framers, Sen. Jacob Howard and Sen. Lyman Trumbull listened to concerns of including such persons as Chinese, Mongolians, and Gypsies to citizenship. Additionally, Sen. Fessenden (co-chairman of the Reconstruction Committee) raised the question of persons born of parents from abroad temporarily in this country – an issue he would not have raised if Congress were merely reaffirming the common law doctrine – and of course, the question of Indians.
A common mischaracterization of the debates says Senators Trumbull, Cowan and Conness suggested both the Civil Rights Bill and the Fourteenth Amendment would make children born to Chinese or Mongolian parent’s citizens regardless of the condition of the parents. However, this is an erroneous conclusion because they were discussing concerns over whether “race” of the parents could play a role. They were not suggesting locality of birth alone was to be the sole requirement of citizenship under the Fourteenth Amendment. Additionally, this discussion appeared before the chief authors, Senators Lyman and Howard, provided the proper intended operation of the language.
Sen. Trumbull attempted to assure Senators that Indians were not “subject to the jurisdiction” of the United States. Sen. Johnson argued that Sen. Trumbull was in error in regards to the Indian’s not being under the jurisdiction of the United States. This must have raised concerns with Howard because he strongly made it known that he had no intention whatsoever to confer citizenship upon the Indians under his amendment, no matter if born within or outside of their tribal lands.
In Steel Co. v. Citizens for a Better Environment (1998) the court said “jurisdiction is a word of many, too many, meanings.” Therefore, it is important to discover the operational meaning behind “subject to the jurisdiction” as employed under the Fourteenth Amendment rather than assuming its meaning from other usages of the word jurisdiction alone. Both Sen. Trumbull and Sen. Howard provide the answer, with Trumbull declaring:
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 ‘complete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.
