John Bingham on Birthright Citizenship
I am now turning my full attention to the Bingham biography, which means that I’ll probably be blogging less often. One point that I came across yesterday, though, seemed worth sharing. As readers of CoOp know, I wrote an article three years ago arguing that children born here to illegal immigrant parents are citizens under the Fourteenth Amendment and that any contrary constitutional interpretation is wrong.
It turns out that Bingham did make one significant statement about birthright citizenship. In 1862, he spoke in the House of Representatives in favor of a bill abolishing slavery in the District of Columbia. As part of that argument, he said:
“Who are natural-born citizens but those born within the Republic? Those born within the Republic, whether black and white, are citizens by birth–natural-born citizens. There is no such word as white in your Constitution. Citizenship, therefore, does not depend upon complexion any more than it depends upon the rights of election or of office. All from other lands, who by the terms of your laws and a compliance with their provisions become naturalized, are adopted citizens of the United States; all other persons born within the Republic, of parents owing allegiance to no other sovereignty, are natural-born citizens. Gentlemen can find no exception to this statement touching natural-born citizens except what is said in the Constitution in relation to Indians.”
Cong. Globe, 37th Cong., 2d Sess. 1639 (1862) (statement of Rep. Bingham)
The crucial language here is “parents owing allegiance to no other sovereignty.” This could be read as an exclusion of children born here to illegal aliens (and was a statement I did not know about when I wrote my article). I don’t think, though, that this is the best reading of the phrase. There were two exceptions to the natural-born citizenship rule at common law (excluding slaves and Native American Tribes). The first involved children of ambassadors, who clearly did owe their allegiance to a foreign power. The second was for children of foreign troops occupying our territory, who were clearly not giving their allegiance to us. My Article explains at some length why the second of these exceptions cannot be analogized to modern illegal immigrants.
Bingham’s description of parentage was probably just a restatement of the common-law exceptions. Later in the same speech he cites Chancellor Kent’s research on birthright citizenship, which stated the same rule with the same exceptions. I do not see the speech as an attempt to change the common law. Nevertheless, this statement will surely show up in any brief arguing that the Citizenship Clause should be read more narrowly, and I think it’s my scholarly obligation to bring all relevant facts to the table.