ILLEGAL IMMIGRATION - Birthright Citizenship | Eastern North Carolina Now

    In late 1865, Rep. John A. Bingham of Ohio, who was a member of the Joint Committee of Fifteen on Reconstruction, proposed a constitutional amendment which would enable Congress to safeguard "equal protection of life, liberty, and property" of all citizens; this proposal failed to pass the House. In April 1866, the Joint Committee forwarded a third proposal to Congress, a carefully negotiated compromise that combined elements of the first and second proposals as well as addressing the issues of Confederate debt and voting by ex-Confederates. The House of Representatives (39th Congress) passed House Resolution 127 several weeks later and sent to the Senate for action. The resolution was debated and several amendments to it were proposed. Amendments to Sections 2, 3, and 4 were adopted on June 8, 1866, and the modified resolution passed by a 33 to 11 vote (5 absent, not voting). The House agreed to the Senate amendments on June 13 by a 138-36 vote (10 not voting). The "Citizenship Clause" was added by Senator Jacob Howard of Michigan.

    That is the very simplified history of the 14th Amendment.

    As most of you know, either through your reading, your learning of Supreme Court or other federal court opinions regarding civil rights or discrimination (the 14th Amendment being the #1 basis for lawsuits), your history courses, your study of law, or even just listening to the heated debates by legal experts and pundits on TV, the absolute meaning of the 14th Amendment is not known; it means different things to different people. It meant one thing to the Supreme Court at the end of the 20th century (Slaughterhouse cases, 1873) and early 21st century, but meant something else in later cases.

    So I think it's important to take a closer look at the proposal of the amendment and its adoption by the US House and Senate.

    Congress had two important concerns about civil rights in 1866. One was that the Bill of Rights by itself did not limit the actions of state governments and the other was the Congress lacked any express power to enforce the Bill of Rights against the states. Congress ultimately addressed these concerns in Sections 1 and 5 of the 14th Amendment. But before Congress approved H.R. Res. 127, the House considered another provision, H.R. Res. 63, which had similar objectives. H.R. Res. 63 arose in the Joint Committee. On January 12, the Joint Committee formed a subcommittee on the powers of Congress.209 On January 27, 1866, Representative Bingham reported to the full committee that the subcommittee had approved a proposed amendment. The subcommittee's proposal said:

    "Congress shall have power to make laws which shall be necessary and proper to secure to all persons in every state full protection in the enjoyment of life, liberty and property; and to all citizens of the United States in any State the same immunities and equal political rights and privileges."

    Although the Journal of the Joint Committee does not report the debates of the full committee, it does show that the full committee made minor amendments to the proposal on both January 27 and February 3. On February 10, the Committee then voted to send the proposed amendment to both Houses of Congress as a proposed constitutional amendment.

    On February 26, Representative Bingham introduced the proposed constitutional amendment to the House as a joint resolution, H.R. Res. 63. The proposal, as it had been revised by the full committee, said:

    "The Congress shall have power to make all laws which shall be necessary and proper to secure to the citizens of each State all privileges and immunities of citizens in the several States (Art. 4, Sec. 2), and to all persons in the several States equal protection in the rights of life, liberty, and property (5th Amendment)."


    After quoting the Privileges and Immunities Clause in Article V and the last clause of the Fifth Amendment, Representative Bingham said:

    "Sir, it has been the want of the Republic that there was not an express grant of power in the Constitution to enable the whole people of every State, by congressional enactment, to enforce obedience to these requirements of the Constitution. Nothing can be plainer to thoughtful men than that if the grant of power had been originally conferred upon the Congress of the nation, and legislation had been upon your statute-books to enforce these requirements of the Constitution in every State, that rebellion, which has scarred and blasted the land, would have been an impossibility."

    Representative Bingham explained that the proposed amendment would solve these problems. He said: "The proposition pending before the House is simply a proposition to arm the Congress of the United States, by the consent of the people of the United States, with the power to enforce the bill of rights as it stands in the Constitution today."'

    The House of Representatives debated H.R. Res. 63 on February 26-28. Despite Representative Bingham's arguments, opponents of the proposal strongly objected that it went too far. The Supreme Court summarized the opposition to H.R. Res. 63 in City of Boerne v. Flores (1997):

    "Some argued that the] proposed Amendment gave Congress too much legislative power at the expense of the existing constitutional structure. Democrats and conservative Republicans argued that the proposed Amendment would give Congress a power to intrude into traditional areas of state responsibility, a power inconsistent with the federal design central to the Constitution. Typifying these views, Republican Representative Robert Hale of New York labeled the Amendment "an utter departure from every principle ever dreamed of by the men who framed our Constitution," and warned that under it "all State legislation, in its codes of civil and criminal jurisprudence and procedure . . . may be overridden, may be repealed or abolished, and the law of Congress established instead." Senator William Stewart of Nevada likewise stated the Amendment would permit "Congress to legislate fully upon all subjects affecting life, liberty, and property," such that "there would not be much left for the State Legislatures," and would thereby "work an entire change in our form of government." Some radicals, like their brethren "unwilling that Congress shall have any such power . . . to establish uniform laws throughout the United States upon . . . the protection of life, liberty, and property," also objected that giving Congress primary responsibility for enforcing legal equality would place power in the hands of changing congressional majorities.

    On February 28, 1866, when it appeared that the proposal would not gain approval, the House voted to postpone consideration until "the second Tuesday in April" (i.e., April 10, 1866).

    After these unsuccessful initial attempts to approve the previously discussed joint resolutions proposing amendments to the Constitution, Congress finally succeeded with H.R. Res. 127, the provision that became the 14th Amendment. H.R. Res. 127 was broader in scope than the prior proposals. It addressed all of the subjects of H.R. Res. 9, H.R. Res. 51, and H.R. Res. 63. It also included a provision on the eligibility of former Confederate officials to hold government office.

    On April 21, 1866, Representative Stevens introduced into the Joint Committee "a plan of reconstruction, one not of his own framing, but [one] which he should support." This proposal contained five sections. Section 1 of the April 21 proposal in the Committee said: "No discrimination shall be made by any state, nor by the United States, as to the civil rights of persons because of race, color, or previous condition of servitude."' The Committee revised this sentence substantially before submitting it to Congress. As introduced in Congress, the proposal said:

    "No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

    Two features of the revision in the Committee deserve mention. First, as the text shows, the Committee decided to drop all mention of race. The revised version sounds very much like H.R. Res. 63, but does not say anything about the powers of Congress.


    Section 2 of the April 21 proposal would have banned racial discrimination with respect to the right to vote. The proposal said: "From and after the fourth day of July, in the year one thousand eight hundred and seventy-six, no discrimination shall be made by any state, nor by the United States, as to the enjoyment by classes of persons of the right of suffrage, because of race, color, or previous condition of servitude."

    The Committee, however, deleted the original Section 2. Because the Journal does not record committee discussions, the reasons for deleting this provision are lost to history. Voting discrimination became a subject that ultimately would be addressed by the 15th Amendment (ratified in 1870).

    The Joint Committee debated the proposal of April 21 and, as explained above, made various revisions before approving it for submission to Congress on April 28, 1866. Representative Stevens introduced the proposal into the House on April 30, 1866, as H.R. Res. 127, but the House voted to postpone discussing the proposal until May 8.

    On May 8, Representative Stevens gave a long speech in which he explained the meaning and purpose of each section. The House debated H.R. Res. 127 on May 8, 9, and 10. On May 10, the House voted to approve H.R. Res. 127, without amendment, by a two-thirds majority (128 yeas, 37 nays, and 19 not voting). [NOTE: The House never reopened H.R. Res. 63. On June 6, 1866, Representative Bingham moved that it "be indefinitely postponed, for reason that the constitutional amendment [H.R. Res. 127] already passed by the House covers the whole subject matter." The House approved the motion. The Senate never considered H.R. Res. 63].

    H.R. Res. 127 was introduced into the Senate on May 10, but no discussion occurred on that day. On May 23, Senator Howard initiated the Senate's consideration of H.R. Res. 127 by analyzing each of its five sections. The Senate discussed H.R. Res. 127 as a committee of the whole on May 23, 24, and 29, and during at time, the made various amendments to it. Discussions continued in both committee and in regular sessions until June 8. [Regular sessions on May 30 and 31, and as a committee of the whole from June 4 to June 8].

    On May 23, 1866, Senator Benjamin Wade, Republican of Ohio, suggested that, given the importance in Section 1 of a guarantee of privileges or immunities to United States citizens, it was imperative that a "strong and clear" definition of citizenship be added to the proposed 14th Amendment - a "Citizenship clause." He suggested "persons born in the United States or naturalized by the laws thereof." Senator Howard, Republican of Michigan, responded on May 30, 1866, with a proposal that was drafted in the Joint Committee on Reconstruction which eventually became the first sentence of the 14th Amendment as it was finally adopted. It read: "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside." Both Howard and the Joint Committee evidently placed some importance on the addition of the jurisdiction clause, which meant, at a minimum, that not all persons born in the United States were automatically citizens, but also had to be subject to the jurisdiction of the United States.

    This is how we got the "Citizenship Clause" of the 14th Amendment.

    Senator Howard and others discussed the purpose, meaning, and limitations of this amendment to the proposal on May 30. He explained that the purpose of the first sentence was to eliminate doubt caused by the Dred Scott decision on the issue of citizenship. He said: "It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States." In that statement, Senator Howard was not explaining the meaning of the first sentence of Section 1, but instead the purpose that the first sentence serves. The sentence had the effect of overruling the Supreme Court's decision in Dred Scott that persons of African descent could never be citizens. Senator Revardy Johnson, who as an attorney had represented John Sanford against petitioner Dred Scott before the Supreme Court, supported the amendment. Without discussing his former role in the matter, he subtly mentioned that "serious questions have arisen, and some of them have given rise to embarrassments, as to who are citizens of the United States, and what are the rights which belong to them as such; and the object of this amendment is to settle that question."' When the matter came before the House, Representative Stevens merely commented: "This is an excellent amendment, long needed to settle conflicting decisions between the several States and the United States."


    His remarks introducing the new language in the Senate have attracted much attention - and much controversy.

    Senator Howard said:

    "I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. 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 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 ambassadors 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."

    On June 8, 1866, the Senate approved the amended version of H.R. Res. 127 by a two-thirds vote (33 yeas, 11 nays). Because the Senate had approved an amended version, the joint resolution had to go back to the House to see if the House would concur in the Senate's amendments. The amended version of H.R. Res. 127 was introduced in the House on June 9. The House debated the amended version on June 13. Rep. Thaddeus Stevens, the Committee Chair, briefly described the Senate's amendments, some of which he approved and some of which he disfavored. In the end, the House concurred in the Senate's version by a two-thirds vote (120 yeas, 32 nays, and 32 not voting) and the 14th Amendment was passed by Congress.

    On June 16, Congress sent the approved version of joint resolution H.R. Res. 127 to the Secretary of State William Seward for delivery to President Andrew Johnson. President Johnson opposed the 14th Amendment, but Article V assigns no role to the President in the Amendment process. Accordingly, President Andrew Johnson's only duty was to send the proposed 14th Amendment to the states, which he instructed Seward to do on June 22, 1866.