First a quick delve into THE FEDERALIST’S article “SCOTUS Birthplace Citizenship Decision Is John Roberts’ Roe v. Wade“
…Justice Samuel Alito captured the consequences better than anyone else in his dissent:
As interpreted by the Court today, the Fourteenth Amendment confers citizenship on virtually everyone who happens to be born in this country, including the children of “birth tourists,” women who come here solely for the purpose of giving birth to a child and then promptly return home.
A Chinese woman can board a flight from China, spend a few weeks in the Northern Mariana Islands, give birth, return home, and her child acquires an American passport as a constitutional right. The practice has become so widespread that, by some estimates, well over a million Chinese nationals have acquired American citizenship through this mechanism.
And after Trump v. Barbara, Congress cannot simply vote to change it. Nor can the American people. Five justices have placed the issue beyond the reach of ordinary democratic government and elevated it into constitutional doctrine….
Megyn Kelly is joined by Mike Davis, founder of the Article III Project, and Alan Dershowitz, author of “Founding Fathers and One Jewish Mother,” to discuss steps President Trump could take right now to cut down on and stop birthright tourism, whether Justice Kavanaugh could have offered a path to a new ruling, and more.
Debating the Supreme Court Birthright Citizenship Ruling
I came across this clip that intrigued me, so here are multiple breakdowns of this. It is from:
- “Senator Jacob Howard of Michigan during the congressional debates over the Fourteenth Amendment in 1866 — Congressional Globe, 39th Congress, 1st Session, May 30, 1866, p. 2890”
CHAT-GPT
GENERAL OVERVIEW via CHAT GPT of the smaller clipping
Yes. This is a famous statement by Senator Jacob Howard of Michigan during the congressional debates over the Fourteenth Amendment in 1866. The highlighted passage is often cited in modern debates about birthright citizenship because Howard was one of the senators who introduced and explained the Citizenship Clause.
The key sentence is:
“Every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.”
Then he immediately adds an exception:
“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.”
What was Howard trying to do?
Before the Civil War, the Supreme Court’s infamous Dred Scott (1857) decision held that Black Americans could not be citizens of the United States.
The Fourteenth Amendment was written largely to overturn Dred Scott and permanently establish national citizenship.
Howard is saying:
- If you’re born in the United States,
- and you’re subject to U.S. law (“subject to their jurisdiction”),
- then you’re a citizen.
His main concern was ensuring that formerly enslaved people and their children were unquestionably citizens.
What does “subject to their jurisdiction” mean?
This is where modern arguments arise.
There are two major interpretations:
Traditional / prevailing legal interpretation
Most courts and legal scholars point to the Supreme Court’s decision in United States v. Wong Kim Ark (1898).
Under this view:
- Almost everyone born on U.S. soil is subject to U.S. jurisdiction.
- The main exceptions are:
- children of foreign diplomats,
- children of occupying enemy armies,
- historically, some tribal Indians who were considered under separate sovereign tribal governments.
Under this interpretation, children born to legal immigrants and illegal immigrants are citizens at birth.
Restrictionist interpretation
Others point to statements like Howard’s and argue:
- “Jurisdiction” means more than merely being subject to American laws.
- It means complete political allegiance to the United States.
- Since foreign nationals owe allegiance to another country, their children should not automatically receive citizenship.
Supporters of this view often highlight Howard’s use of the words: “foreigners” and “aliens” as evidence that the framers intended broader exclusions than modern courts recognize.
Why historians argue over this passage — The dispute comes from the fact that Howard’s sentence can be read two ways.
One side emphasizes:
“…will include every other class of persons.”
The other side emphasizes:
“…will not include persons born in the United States who are foreigners [or] aliens…”
The question becomes:
- Was Howard referring only to diplomats and their families who happened to be foreigners and aliens?
or
- Was he excluding all children of foreigners and aliens?
The Supreme Court in Wong Kim Ark largely adopted the first understanding and relied heavily on English common-law birthright citizenship traditions.
An interesting detail — If you read the entire Senate debate, another senator, Lyman Trumbull, explained jurisdiction as:
“Not owing allegiance to anybody else.”
Modern advocates on both sides quote Trumbull because that phrase seems to support the allegiance-based interpretation, yet Congress later enacted laws and courts later interpreted the Citizenship Clause more broadly than many restrictionists believe was intended.
So this clipping is historically important because it is one of the primary pieces of evidence used in the modern birthright citizenship debate. The argument isn’t over what Howard said—the argument is over what Howard meant by “foreigners, aliens” in the context of the entire sentence and the larger debate.
FULLER CLIPPING AND COMMENTARY
Yes. The best source is the actual Congressional Globe (the official record of congressional debates before the Congressional Record existed).
Here is the page containing the exact text from your clipping:
Congressional Globe, 39th Congress, 1st Session, May 30, 1866, p. 2890
University of North Texas Digital Library – Page 2890 (original scan
The image you posted is only a cropped section of that page. The full page shows:
- Howard introducing the Citizenship Clause.
- His explanation of “all persons born in the United States.”
- The exchange with Senator Doolittle regarding Indians.
- Howard’s statement that tribal Indians were not considered under U.S. jurisdiction in the same sense because they maintained separate tribal relations.
- Senator Cowan immediately asking whether children of Chinese immigrants and Gypsies born in the U.S. would be citizens. (UNT Digital Library)
What’s especially interesting is what follows immediately after the section in your screenshot. Cowan asks:
“Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?” (UNT Digital Library)
That question is important because it shows that senators at the time were already thinking about the application of the clause to children born to non-citizen immigrants.
Another excellent source is the National Constitution Center’s reproduction of Howard’s speech:
National Constitution Center – Howard’s Speech Introducing the Fourteenth Amendment
And a transcript version:
Teaching American History – Speech Introducing the Fourteenth Amendment
One thing to keep in mind when reading modern arguments is that both sides quote Howard. The debate usually turns on whether the phrase:
“foreigners, aliens, who belong to the families of ambassadors or foreign ministers…”
should be read as:
- One category (foreign diplomats and their families), or
- Several categories (foreigners generally, aliens generally, and diplomats).
The punctuation is part of why this 1866 sentence is still debated today. (UNT Digital Library)
If you’d like, I can also pull the next few pages (2891–2893) and walk through the entire debate in plain English. That’s actually where some of the most revealing discussion occurs.