Judge Ho, Original Intent, and the Citizenship Clause

In 2006, James C. Ho wrote an article titled “Defining ‘American’: Birthright Citizenship and the Original Understanding of the Fourteenth Amendment.” Since his appointment to the Fifth Circuit Court of Appeals in 2018, his article has gained greater attention and authority than it otherwise might have done. Judge Ho was nominated by President Trump as an adherent of original intent jurisprudence, and the president’s confidence in Judge Ho’s fidelity to the Constitution seems to have been amply borne out by some of his early opinions. In one concurring opinion, he wrote that “it is hard to imagine a better example of how far we have strayed from the text and original understanding of the Constitution than this case.”

“Text and original understanding” are, indeed, the reliable touchstones of constitutional jurisprudence. But Judge Ho did not live up to those standards in his attempt to uncover the meaning of the Citizenship Clause of the 14th Amendment, even as he has recently indicated he understands the high stakes involved. He did write that “under our Constitution, the people are not subjects, but citizens.” While Judge Ho provides no acknowledgment, this is a close paraphrase of a statement made by signer of the Declaration and the Constitution and Supreme Court Justice James Wilson quoted in chapter two. “Under the Constitution of the United States,” Wilson wrote in 1793, in the case of Chisolm v. Georgia, “there are citizens, but no subjects.”

There are crucial differences. Justice Wilson was criticizing Blackstone and the common law as providing no legitimate ground for republican government. Judge Ho, however, argues that the holding in Wong Kim Ark is correct—that the Citizenship Clause of the 14th Amendment rests on the English common law, despite the fact that the principal architects of the Citizenship Clause clearly argued that it did not. It would be difficult, then, to argue that Judge Ho was an original intent jurisprude on the issue of citizenship.

Judge Ho rightly notes that the principal purpose of the 14th Amendment was to overturn the Dred Scott decision, but he claims “the amendment was drafted broadly to guarantee citizenship to virtually everyone born in the United States.” Indeed, he continues, “birthright citizenship is a constitutional right, no less for the children of undocumented persons than for the descendants of passengers of the Mayflower.” Judge Ho acknowledges that there are two requirements in the Citizenship Clause: born or naturalized and subject to the jurisdiction. But, the Judge alleges, this means subject only to the laws and courts, and nothing more. Since everyone born in the United States is subject to its laws and courts, by Judge Ho’s logic, they are automatically subject to the jurisdiction of the United States. His interpretation clearly renders the Jurisdiction Clause superfluous. If that had been the framers’ intention, they simply would have written “all persons born or naturalized in the United States are citizens of the United States and of the States wherein they reside.” As we have already seen, this was exactly the proposal made by Senator Wade on May 23, 1866. But we also recall that the Joint Committee on Reconstruction revised Wade’s proposal to add the “subject to the jurisdiction” clause. Judge Ho would have us believe that Senator Wade’s original, unamended proposal was passed by Congress to become the first sentence of the 14th Amendment. It was not; the Joint Committee evidently placed particular importance on the addition of the jurisdiction clause and intended it to be a substantive improvement on Wade’s proposal, not just a superfluous appendage to be ignored.

This is hardly the kind of constitutional construction we would expect from someone of Judge Ho’s legal acumen and someone who professes to be bound by the text of the Constitution and the intentions of its framers. Rendering a provision of the Constitution without force and effect is the same kind of judicial activism that adds new rights to the Constitution that are not authorized by the text or a clear inference from the text. Ho has rendered null and void a part of the Constitution that stands in the way of his predisposed views, which—at least in this case—coincide with ideological liberalism. It is not enough merely to consult the latest edition of Black’s Law Dictionary under the “jurisdiction.”

Judge Ho refuses to recognize the framers’ references to “allegiance” in connection with the jurisdiction clause, criticizing those who

claim that the Citizenship Clause protects only the children of persons who owe complete allegiance to the U.S.—namely, United States citizens. To support this contention, proponents cite stray references to “allegiance” by Senator Trumbull (a presumed authority in light of his Judiciary Committee chairmanship) and others, as well as the text of the 1866 Civil Rights Act.

Judge Ho helpfully continues: “But the text of the Citizenship Clause requires ‘jurisdiction,’ not ‘allegiance.’ Nor did Congress propose that ‘all persons born to U.S. citizens are citizens of the United States.’” There are many misleading and inaccurate statements packed into this short quotation. The characterization of Senator Trumbull as “a presumed authority” because of his position as chairman of the Senate Judiciary Committee and as author of the Civil Rights Act of 1866 is curious, especially since this was the act, as we have mentioned ad nauseam, that formed the basis for the Citizenship Clause.

Furthermore, it is simply false to say that the Civil Rights Act of 1866 reserved birthright citizenship only for the children of United States citizens; in fact, it included everyone “not subject to any foreign power” and “Indians not taxed.” Trumbull himself used the phrase “subject to our jurisdiction” as meaning “owing allegiance solely to the United States” in the Citizenship Clause debate. We have already discussed at length why he chose not to use “allegiance” in the text of the Civil Rights Act. It was a deliberate exclusion of a common law term that would have given birthright citizenship to those who owed allegiance to foreign countries—that is, aliens. It is incredible that Judge Ho either does not know this part of the Civil Rights Act debate or does not recognize the significance of Senator Howard’s statement that the Citizenship Clause of the 14th Amendment was intended to incorporate the Civil Rights Act.

And the argument that allusions to “allegiance” were “stray references” can only come from someone who has made the most casual perusal of the congressional debates; a detailed reading elicits a multitude of references. All the principal supporters of the Citizenship Clause used the term in reference to “jurisdiction,” as our quotations have indicated.

There is no evidence to support Judge Ho’s assertion that only the children of citizens are eligible for birthright citizenship. But there is evidence that children born on U.S. soil to those who owe allegiance to foreign powers or are in the country only temporarily with no intention of establishing domicile are excluded from birthright citizenship. There is no evidence anywhere in the debates to support the tortured conclusion of ideological liberals—and Judge Ho—that the jurisdiction clause applies only to families of ambassadors or foreign ministers.

Did the Framers of the 14th Amendment Support Birthright Citizenship?

Judge Ho contends that “no Senator disputed the meaning of the [14th] amendment with respect to alien children.” All agreed, he argues—even those opposed the amendment—that alien children were entitled to birthright citizenship. We have just demonstrated, however, that this claim is false. Yet Ho believes he has a different proof, this one contained in the debate about whether the children of Gypsies and Chinese were to be accorded birthright citizenship under the Citizenship Clause. The problem here is that he completely misreads the debate. He is uneasy with his conclusion because, as he reports, both those who argued in favor of (and against) the citizenship of Gypsies and Chinese indulged in “racially charged remarks.”

Judge Ho follows closely Justice Gray’s one foray into legislative history and succeeds only in following him through the gates of error. Justice Gray had emphasized the importance of construing the language of the 14th Amendment itself, arguing against the use of congressional debates to illuminate the meaning of the amendment’s language. The reason, I say again, was abundantly clear: none of the principal proponents ever made an argument that the Citizenship Clause was grounded in the common law. Congressional debates would be no help—and in fact, would be a detriment—in any attempt to support an argument that the language of the 14th Amendment was deliberately founded on the common law. And this was not the only (or even the most egregious) slight of hand engaged in by the two jurisprudes we are examining.

The question about Chinese and Gypsies immediately followed the debate about whether Indians fell within the jurisdiction of the United States. It was argued, we recall, by Senators Howard and Trumbull, on May 30, 1866, that Indians owed allegiance to their tribes and, therefore, were not subject to the complete jurisdiction of the United States, and, consequently, not birthright citizens. Even before this crucial debate, but on the same day, Senator Edgar Cowan, Republican of Pennsylvania, was the first to bring up the issue, asking “is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen? If so, what rights have they? His principal concern seems to have been that Pennsylvania would not be able to restrict the civil or political rights of those who, like Gypsies, “acknowledge no allegiance, either to the State or to the General Government.” In a further query, Cowan asked,

[I]s it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to immigrated out of house and home by Chinese…. They are in possession of the country of California, and if another people of a different race, of different religion, of different manners, of different traditions, different tastes and sympathies are to come there and have the free right to locate there and settle among them, and if they have an opportunity of pouring in such an immigration as in a short time will double or treble the population of California, I ask, are the people of California powerless to protect themselves?

Cowan ultimately voted against the 14th Amendment, whether for the reasons just quoted or for these reasons combined with others, is not entirely clear.

Senator John Conness, Republican of California rose to respond to Cowan’s remarks about Chinese immigrants in California.

The proposition before us…relates simply…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…the children of Mongolian parentage, born in California, is very small indeed, and never promises to be large…. The habits of those people, and their religion, appear to demand that they all return to their own country at some time or other, either alive or dead. There are, perhaps in California today about forty thousand Chinese—from forty to forty-five thousand…. Another feature connected with them is, that they do not bring their females to our country but in very small numbers, and rarely ever in connection with families; so that their progeny in California is very small indeed…. Indeed, it is only in exceptional cases that they have children in our State….

What should we make of this odd speech? It certainly wasn’t a ringing endorsement of birthright citizenship for the children of Chinese living in California, since the thrust of Conness’s argument was that the question was trivial and not worth debating. He admitted that the Chinese living in California did not owe allegiance and formed no attachments to the United States. They did not bring their families with them—not even their females—and they rarely reproduced; it was safe, Senator Conness reasoned, to make them citizens. In fact, it was a matter of some indifference as to whether they became citizens or not. Cowan had also argued that Gypsies owed no allegiance to the United States, and that states should therefore be allowed to discriminate against them in various ways as a matter of self-preservation. For him, it was a matter of states’ rights; states should be allowed to deny citizenship and thereby withhold United States citizenship. He appears to have been among a fairly large segment of the 39th Congress who indulged the implausible hope that Reconstruction Amendments would not change the federal relationship.

It is important to note that neither Senator Howard nor Senator Trumbull—nor anyone else—endorsed Senator Conness’s view that the Citizenship Clause would include Chinese who admittedly did not owe allegiance to the United States. His speech simply fell flat, carrying no authority whatsoever; it expressed the eccentric view of one senator and was apparently not shared by any other member of the Senate. In any case, it can hardly be said to be a strong endorsement—or any real endorsement at all—of Chinese citizenship.

Judge Ho also has recourse to the debates over the Civil Rights Act of 1866 to buttress his claim that the Citizenship Clause extends birthright citizenship to the children of aliens. “In one exchange,” Ho relates, “Cowan, in a preview of his later opposition to the Howard text, ‘ask[ed] whether [the Act] will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?’ Trumbull replied: ‘Undoubtedly…the child of an Asiatic is just as much a citizen as the child of a European.’” Here, Judge Ho follows, in much abbreviated form, the account of Justice Gray in Wong Kim Ark. Both, however, engage in a careless misreading of the congressional debate and reach a conclusion that is precisely the opposite of the actual debate.

We recall that Senator Trumbull’s first version of the act was that “All persons born in the United States, and not subject to any foreign Power, are hereby declared to be citizens of the United States, without distinction of color.” An immediate objection was raised by Senator James Guthrie, Democrat of Kentucky, that this definition would naturalize Indians. Trumbull answered that “the intention is not to embrace them. If the Senator from Kentucky thinks the language would embrace them, I should have no objection to changing it so as to exclude the Indians. It is not intended to include them.⁴⁷” The seemingly ubiquitous Senator Cowan was quick to add, “I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?” Trumbull answered, “Undoubtedly.”

It is impossible to read Trumbull’s answer the way Justice Gray and Judge Ho do, as an endorsement of the citizenship of Chinese and Gypsies. Trumbull’s “Undoubtedly” is only an admission that the first draft of the language he has submitted is broad enough, not only to include Indians, but Chinese and Gypsies, as well. He agreed with the objectors to the overbroad language that restrictions were needed, and he proceeded to amend his initial language to exclude “Indians not taxed.” Nothing was said about excluding Chinese or Gypsies, but it was the unamended—not the subsequently amended (and final)—language to which his answer “Undoubtedly” referred. “Undoubtedly” simply cannot be read as an endorsement of citizenship for Chinese or Gypsies. The “All persons” language of the first draft would have included Indians, Gypsies, and Chinese, “Undoubtedly.” The amended language, while explicitly excluding only “Indians not taxed” from birthright citizenship,” by a parity of reason, excludes Chinese and Gypsies as well. Justice Gray’s and Judge Ho’s misreading of “Undoubtedly” is palpable.

Some language was used by Trumbull, who was showing impatience with Senator Cowan, that implied that children born in the United States of “Asiatic parents” who are naturalized citizens were citizens.

But Trumbull says this would be the case under the naturalization laws as they currently existed, that is, before there was any definition of United States citizenship.

The Civil Rights Act of 1866 was the first-ever definition of citizenship and there was some question as to Congress’s authority to declare the newly freed slaves to be citizens. In any case, the Civil Rights Act’s definition of citizenship did not contain, as did the 14th Amendment, a requirement that that those born in the United States must also be “subject to the jurisdiction of” the United States, only that they not be “subjects of any foreign power.” In the debate over the Citizenship Clause, no one accepted Senator Conness’s argument about Chinese citizenship; it is not even certain that Conness himself did; in fact, he made an elaborate case that Chinese did not owe allegiance to the United States. Judge Ho has not demonstrated from the debates that Gypsies and Chinese were in fact included in the Citizenship Clause. His aim was to show that, if Gypsies and Chinese were included, this was certain proof that everyone born within the geographical limits of the United States was automatically subject to its jurisdiction. Judge Ho has certainly not carried the burden of proof—or if he has, he has proven it only by rendering the jurisdiction clause superfluous.

Will Repeal of the Common Law of Birthright Citizenship Bring Back Dred Scott?

In the late 20th century and the early 21st century there were sustained legislative efforts in Congress to repeal birthright citizenship. President Trump mentioned one such proposal in 2018 that drove ideological liberals to distraction. All the efforts failed, however, mostly due to the efforts by corporations to import cheap and exploitable labor, and a Democratic Party counting on new voters for their electoral victories. From the Left, the campaign of hysteria surrounding the push to end birthright citizenship was mounted in order to further prepare Americans to accept open borders as a principle.

The idea proposed by some Republicans was to use Congress’s section five powers to define who is “subject to the jurisdiction,” and thereby exclude children born in the United States to illegal alien parents. The constitutional arguments have already been rehearsed in extenso. Judge Ho, however, wrote of the grave danger of repealing birthright citizenship for the children of illegal aliens. He wrote, in a passage we have already cited, that if birthright citizenship for illegal aliens is repealed, “Dred Scott II could be coming soon to a federal court near you.”

The claim was that Dred Scott had repealed the long-standing English common law doctrine of jus soli, or “citizenship by place of birth.” Repealing the common law of jus soli is precisely what Judge Ho thought the congressional attempts to repeal birthright citizenship would accomplish. The 39th Congress had approved the Citizenship Clause of the 14th Amendment in 1866, he writes, “to overrule Dred Scott and elevate jus soli to the status of constitutional law.” Judge Ho’s error here is his assertion that the English common law of jus soli was repealed by Dred Scott. It wasn’t. Judge Ho fails to see the importance of the Declaration of Independence when it dissolved the perpetual allegiance due from subjects to the British Crown. That was the end of the common law of jus soli. Judge Ho should know that, but he fails to see the importance of the Declaration of Independence. Chief Justice Taney realized that the question of citizenship had to be resolved by an interpretation of the principles of the Declaration, but Taney’s mistake, as we have argued, following Lincoln, was in not understanding the true intentions of the framers of that document which served as the foundation for American citizenship.

Taney did understand, however, that the common law of jus soli was not any part of the social compact understanding of citizenship, which required the consent of the governed. His mistake was to assume that it was contrary to the intent of the framers of the Declaration that blacks of African descent were not included in the principle that “all men are created equal” and therefore could never be any part of the social compact. Contrary to what Judge Ho alleges, repealing jus soli will not necessitate Dred Scott II; rather, it will bring back a renewed understanding of the founders’ understanding that American citizenship was never grounded in the common law, nor was jus soli the principle adopted by the 14th Amendment.