Historical Context: The 14th amendment and the right’s attempt to rewrite history.

Birthright citizen ship came up in the Republican debate last week and predictably they had a lot to say about the 14th amendment, much of it untrue, or at least questionable. The part that I think is most worth of mention was when Rand Paul said:

The original author of the — of the 14th Amendment said on the Senate floor that this was applying to slaves, and did not specifically apply to others.

Before I talk about the problems with this statement we should note that this is very different than the oft heard claim that the 14th amendment should not apply to those who entire the country illegally. (a claim also made during the debate) That argument largely hinges upon the meaning of the word “jurisdiction” and whether or not those who have illegally entered into the country are within that jurisdiction. While this is not how current jurisprudence treats the children of those who entered the country illegally it’s an argument that is not entirely without merit. Further, the differences that exist in immigration law between the authorship of the 14th amendment and now make it difficult, if not impossible, to determine whether or not those who penned the amendment would have included those are considered illegal by todays standards.

Paul’s quote says something quite different, he is saying that we should not apply the 14th amendment to ANYONE except the descendants of slaves, and he makes this argument based upon the notion that those who originally wrote the amendment did not intend to include anyone else. Leaving aside the unstated assertion that the intent of the authors is most important, or perhaps only, measure by which we interpret the constitution, a position which isn’t even accepted by many conservative judges and legal scholars1, is it actually true that the authors of the amendment only intended it to apply to only to the children of slaves?

The historian Eric Foner, says this about the argument.

I don’t think that’s true. I mean again they were not debating immigration at that time, but they were well aware that these measures, put in abstract terms, would affect many. In my book, I seem to remember I actually quoted a congressman who said this affects immigrants from abroad, it affects everybody. But we know they were thinking of other groups because when they passed the Fifteenth Amendment, they specifically reworded it, unfortunately, to allow western states, I have to say, to exclude the Chinese from voting. Because you know the original language of the Fifteenth Amendment was a positive grant of the right to vote to males over the age of twenty-one, which would’ve eliminated a lot of the methods that southern states eventually used to disenfranchise blacks. But California, Nevada, Oregon said, no, no, no, we can’t let these Chinese vote, so they turned it around and said you can’t deprive a person of the right to vote on the basis of race but you can on other grounds. So they realized that these principles were going to be applying to other people than former slaves.

In fact, the people who wrote the 14th amendment (the who senate was involved not just one person like Paul’s quote would indicate) knew very well that it’s wording would include more than just the slaves, and it’s easy to see that this is the case by looking at the minutes from the congressional debates about the amendment. For instance:

On January 20 the Joint Committee’s subcommittee considering drafts of constitutional amendments reported to the full Joint Committee an expanded form of the Bingham proposal that read as follows:

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

or this:

On January 27 the Joint Committee considered a draft of the constitutional amendment reported by the subcommittee of Bingham, Boutwell, and Rogers. It now read:

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

Statements like this can be found over and over in the debate about the 14th amendment and should make it clear that people were well aware that this bill was going affect more people than just the former slaves. The fact that people knew this is made even more clear by the fact that some of the western senators wanted the amendment reworded to specifically exclude Indians and Chinese from the amendment. This was only partially implemented by including the phrasing “excluding Indians not taxed” from section 2 of the amendment.

Another interaction, and perhaps one of the best examples in showing that Paul’s claims are wrong, happened between Senator Edgar Cowan (R-PA), and John Conness (R-CA). Cowan argued against birthright citizenship saying that that his state ought to have the right to expel foreigners who invade it’s borders and objected to the children of those from foreign nations being treated as citizens saying of them, “who own to her (the U.S.) no allegiance; who pretend to we none; who recognize no authority in her government; who have a distinct, independent government of their own…” Cowan also voice the fear that opening up citizenship to “nonwhites” would result in the annexation of California by the emperor of China through large numbers of immigration into the state, and compared the Chinese to Gypsies who lived in Pennsylvania.

Conness responded to Cowan’s concerns in the following way.

The proposition before us … relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. … I am in favor of doing so. … We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.

He also dismissed Cowan’s predictions of being overrun saying that most Chinese would not take advantage of the amendment preferring to work for a time and then return to their own country, saying if Cowan “knew as much of the Chinese and their habits as he professes to do of the Gypsies, … he would not be alarmed.”

At this point it should be clear that Rand’s statement is false, and that those involved in drafting the 14th amendment both knew that it would, and intended it to, affect more than just the children of former slaves. While part of the amendments focus was specifically on overturning Dred Scott, they clearly had the goal of making sure that no similar decisions could be handed down about other groups of people in the future. In addition, the nativist arguments made by Rand and others have a lot more in common with those like Cowan who opposed passing it in the first place, than it does with those who supported the amendment. This is quite simply an attempt to rewrite or ignore history on the part of Rand Paul, either that or he simply doesn’t know his history as well as he thinks he does.

  1. Even Justice Scalia, who is one of the most consistent conservatives in SCOTUS thinks that textualism, is more important than authors intent in interpreting the constitution.
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