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.

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7 Responses

  1. As you are working through this issue, read my article “Representation Without Documentation?” forthcoming in BYU Law Review. It details this issue and the doctrine of allegiance, and actually uses the quotation you refer to. The doctrine of allegiance is not from the “common law,” but from internationa law, which I detail in my article “The Plenary Power Doctrine and the Constitutionality of Ideological Exclusion” in the Texas Review of Law and Politics. Lastly, I found this proposed bill from the Foreign Relations Committee. (see http://patrickjcharles.wordpress.com/2011/02/16/affirmance-that-the-meaning-of-subject-to-the-jurisdiction-thereof-was-congressional-plenary-power-to-define-citzenship/) I hope this helps, and if you need further help on weighing this issue you can contact me at the blog.

    Best,
    Patrick J. Charles

  2. scott ehredt says:

    I don’t have any trouble granting citizenship to those born here based on the 14th amendment. I just happen to think there is a reason why no other industrialized contries besides the U.S. and Canada still allow it. It is like winning the lottery for you kids (and possibly yourself if you can remain in the country long enough for your kids to sponser your citizenship). Reason: Welfare and entitlement programs in the U.S. are pretty generous. Just Social Security and Medicare are worth around $350,000 on average. So two illegal parents plus one illegal child can create perhaps $1,050,000 of benefits for themselves by coming here illegally to have their children.

    The difference back in Bingham’s day was that if you came to the U.S. or were born here…you had to make it on your own through long hours of labor for very little pay and there was no safety net other than family.

    The time now is just so different from when the amendment was written that probably we oughta update it so birthright citizenship no longer incents people to come illegally to our country. The illegal immigration problem is really one of our own making because we allow incentives like this to persist.

    Anyway, I really appreciate your site. I hope you’ll check out the National Centrist Party and maybe even sign up if you want to encourage us to continue pursuing government from the center and reform of the election process. Just don’t judge us too harshly as we’re just in our infancy. Instead, get involved with us to help shape a formidable, centrist party.

    And if you’ll get me your email address, I’ll be happy to provide monthly updates on our progress.

    scott
    NationalCentristParty.org
    515-240-1730 anytime 7am-9pm central time.

  3. Joe says:

    “The difference back in Bingham’s day was that if you came to the U.S. or were born here…you had to make it on your own through long hours of labor for very little pay and there was no safety net other than family.”

    Even Scrooge cited poorhouses. So, no, there was some sort of safety net at the time then too. Some areas had free public schools for kids as well. etc.

    The parents’ “windfall” are partially based on their taxes, including any sale and use taxes (and others, particularly if they are using a fake SS card). As to citizenship for themselves, they would have to stay pretty long. Until adulthood, I believe.

    I have my doubts about your other claim too. Perhaps the author can respond as to if US and Canada have unique rules.

  4. Chris says:

    Bingham didn’t draft the first sentence of section one, though–it was added in the Senate.

  5. Gerard Magliocca says:

    True Chris. I should have clarified that in the post.

  6. J. Wolsey Riggs says:

    Mr. Charles,

    I recently read your article “Representation Without Documentation?” and am slightly confused as to why you misquote Bingham. The original quote, which is given in full in this blog post, reads ““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.”

    Your version of the quote leaves out the words “of parents” leaving “all other persons born within the Republic owing allegiance to no other sovereignty, are natural born citizens”. Could you share why you felt justified in leaving out these two words, and thereby changing Bingham’s definition?