By Brian J. Johnson, Special for CalMatters
This commentary was originally published by CalMatters. Sign up for their newsletters.
On Wednesday, April 1, the Supreme Court will hear oral arguments on whether the Constitution’s 14th Amendment guarantees “birthright citizenship”— specifically whether US-born children of undocumented immigrants must be citizens. Many jurists will look to the “original public meaning” of the text.
California’s largely forgotten 1867 election reveals the answer. The original public meaning of the 14th Amendment should be clear to any originalist judge. It was clear enough to end the careers of the amendment’s supporters and to trigger a backlash that shaped the country’s immigration policy for generations to come.
The citizenship clause reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
During an 1866 debate in Congress, Pennsylvania Sen. Edgar Cowan complained about “Gypsies” who “acknowledge no allegiance” and “settle as trespassers where ever they go.” He also argued that California should be able to protect itself from “a flood of immigration of the Mongol race.” He proposed changing the amendment text to exclude both groups.
“Is the child of the Chinese immigrant in California a citizen? Is the child of a Gypsy born in Pennsylvania a citizen?” he asked.
California Sen. John Conness agreed with Cowan’s interpretation of the proposal but argued to keep it as is. He stood by “the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.”
Congress adopted the bill without Cowan’s proposed exceptions.
Back in California, hostility toward Chinese immigrants was rising. Gubernatorial candidate Henry Haight and his Democratic Party sensed a political opening. For the 1867 election, he campaigned on an explicitly anti-Reconstruction — and anti-Chinese — platform. The other party, Democrats said, wanted birthright citizenship, which would result not only in “Negro suffrage,” but also “the elevation of the Chinamen to be the equals of white men.”
The crowd shouted “Never! Never!”
At the time, there were 10 times more Chinese people than Black people living in California.
In his acceptance speech, Haight railed against those who wanted America to “descend to the political level with the Chinese, whose want of truthfulness, of courage, of moral stamina, of every quality which fits a man to govern himself” make them “a race whose men are inferior in every quality.”
The 14th Amendment so dominated the political landscape, it was the only policy Haight mentioned in his acceptance speech and his inaugural address. As governor, he even refused to transmit the amendment to the legislature for consideration.
Senator Conness — an ally of President Abraham Lincoln and a pallbearer at his funeral— left politics a few years later, in 1869.
The era of Chinese exclusion kicked into high gear. California prohibited Chinese people from employment by corporations and on public works projects. They also couldn’t own land or testify in court.
The 1882 federal Chinese Exclusion Act barred new immigrants entirely until 1943.
Through it all, though, a child born in America to Chinese parents was still a citizen. By the 1890s, Chinese-exclusionists went to the Supreme Court to close the birthright citizenship “loophole.”
Immigration services detained a man named Wong Kim Ark after a trip to visit his parents, who’d moved back to China. Wong, who was in his 20s at the time, produced proof of his San Francisco birth and demanded his release.
The government argued that, because Wong’s parents were subjects of the Emperor of China, owed their allegiance to that country and were ineligible for U.S. citizenship, their son could not be a natural born American.
The Supreme Court disagreed. It quoted Cowan and Conness on the amendment, for “the legal meaning of the words themselves,” and noted that no one at the 1866 debate contradicted them.
Ultimately, though, the high court declared the outcome to be controlled by something simpler: “the broad and clear words of the Constitution.”
After more than 100 years, the question is again before the court. Neither the amendment nor the historical record have changed.
