Before the Supremes Rule on Birthright Citizenship, They Should Read the 1866 Record

The men who wrote the Fourteenth Amendment's citizenship clause left a precise explanation, and it answers the question now before the Supreme Court quite clearly.

Four words in the Fourteenth Amendment are at the center of a constitutional argument that reached the Supreme Court of the United States on April 1, 2026. “Subject to the jurisdiction thereof.” The President contends those words do not cover children born to parents present in this country illegally. Every federal court to consider that position has rejected it. The Supreme Court will have its say by the end of June, at least that’s the plan.

Before the Court rules, there is a prior question worth putting squarely on the table. Where did those four words come from, and what did the man who wrote them say they meant?

You see, the Fourteenth Amendment was not drafted in a vacuum. It had a direct legislative predecessor. In April of 1866, the Republican-controlled 39th Congress passed the Civil Rights Act of 1866 over President Andrew Johnson’s veto. Johnson was a Democrat who had opposed abolition and who would go on to become the only president impeached in the nineteenth century. The Republican majority overrode him without hesitation. That act defined citizens as “all persons born in the United States and not subject to any foreign power.”

Those words were the operating legal standard for citizenship before the Fourteenth Amendment existed. Senator Lyman Trumbull of Illinois was the principal author of both the Thirteenth Amendment, which abolished slavery in 1865, and the Civil Rights Act of 1866. He understood precisely what “not subject to any foreign power” meant. It meant persons who owed their allegiance to the United States and to no other sovereign.

Congress understood that a statute could be changed. President Johnson had already demonstrated the danger. The Republican majority moved to place the citizenship standard beyond the reach of any future administration or hostile Congress by writing it into the Constitution itself. That effort produced the Fourteenth Amendment.

John Bingham, a Republican congressman from Ohio and a member of the Joint Committee on Reconstruction, was the principal architect of Section 1 of that amendment. He built the constitutional framework that would give the citizenship clause, the equal protection clause, and the due process clause their permanent home in the document. Bingham’s purpose was explicit: to constitutionalize what the Civil Rights Act had established in statute, and to do it in language no future Congress could undo with a simple majority vote.

The amendment moved to the Senate, where Senator Jacob Howard of Michigan introduced it on the Senate floor on May 30, 1866. We must all understand that Howard did not merely introduce the text, he “explained” it. His floor speech is the most direct piece of legislative history available on what the citizenship clause was designed to mean, and it belongs in the public record of this post and the Supreme Court debates.

Howard told the Senate that the citizenship clause would apply to all persons born in the United States “who are not subject to any foreign power, excluding Indians not taxed.” He then described the exceptions with precision. The clause would not apply to children of foreign ministers and ambassadors, because those persons lived in the United States under the protections of international law and owed no allegiance to this government. It would not apply to children born to enemy forces in hostile occupation of American territory.

Those were the exceptions Jacob Howard named on the Senate floor record. Two of them. No others. This is not a small point.

History shows us that Howard was a careful legislator speaking for the amendment before the body that would vote on it. If he intended additional exceptions, that was the moment to have named them. But he didn’t name them because they didn’t exist.

In 1866, there were no restrictions on immigration in the United States. The legal category of “illegal alien” had not been created. The Page Act, the first significant federal immigration restriction, would not arrive until 1875. The Chinese Exclusion Act would not follow until 1882.

Do I truly need to point out that you cannot carve out a legal category that has no legal existence. The silence in Howard’s speech on illegal immigration is not an oversight. It is historical evidence that the category wasn’t before the Congress because the category wasn’t before the country.

Senator Trumbull addressed the meaning of the jurisdiction language directly during the Senate debates. He stated that “subject to the jurisdiction” of the United States meant “not owing allegiance to anybody else.” Howard confirmed the same reading. The two principal Senate voices behind both the Civil Rights Act and the citizenship clause said, in their own authenticated words and on the record, what the phrase was designed to mean. Allegiance. Not merely territorial presence. Allegiance.

The Fourteenth Amendment was ratified on July 9, 1868. It was built on a foundation Trumbull had laid in statute two years earlier, explained by Howard in the authenticated floor speech, and ratified by the states with that explanation already in the public record.

I say that what those four words meant to the men who wrote them and placed them in the Constitution is not a matter of interpretation or political preference. They left the answer in the Congressional record. What the Supreme Court decides this summer is whether that record still governs, or whether a century and a half of accumulated “judicial interpretation” has displaced what the authors themselves put on paper and in Congressional archives.

That distinction, at least in my mind, matters more than the case itself.

Ken Whaley ~ Restore First Principles