Citizenship Protections Anchored in History

By Rachel Pomerantz

Rachel Pomerantz is a freshman at the University of Pennsylvania.

​Donald Trump, the billionaire real estate mogul and Penn alum currently leading in the Republican primary polls, has focused on immigration as a main issue of his campaign. Specifically, he has drawn his attention to ending the phenomenon of “anchor babies.” [1] Derided by immigration advocates as derogatory, this term usually refers to the American-born children of those immigrants in the United States who do not possess visas or green cards. Since these children are born on American soil, they receive citizenship automatically and, upon turning 21, can help their parents gain legal status. [2]

The legal heart of this situation is the concept of birthright citizenship, which is guaranteed by the 14th Amendment to the Constitution. The so-called “citizenship clause” of Section 1 states, “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.” [3] Though not originally devised with immigration in mind, Section 1 contains a fascinating legislative history.

The goal of the 14th amendment was to support and reaffirm the aims of the Civil Rights Bill of 1866. Having granted citizenship to former slaves, the Radical Republicans in Congress wanted to ensure that the new class of citizens would have the same access to the rights of United States citizens: due process, access to contracts, and ability to fully avail themselves of the legal system. However, due to the wording of the Constitution, someone has to be a citizen of a state in order to become a citizen of the United States, so Congress had to craft a definition of citizenship that the former Confederate states could not subvert. [4]

Robert Dale Owen, an activist and politician of the era, submitted the first version of Section 1, which read, “No discrimination shall be made by any State, nor by the United States, as to the civil rights of persons, because of race, color, or previous condition of servitude.” [4] Some feared that the term ‘civil rights’ could be construed as limiting, so the Committee of Reconstruction searched for more encompassing language. [5]

Rep. John Bingham of Ohio, who became a central figure regarding the 14th Amendment, said that the amendment should have the intention “to secure to all persons in every State of the Union equal protection in their rights, life, liberty, and property.” [6] Strategists thought that Radical Republicans would not view this language as aggressive enough and therefore would have to be packaged with other proposals that favored Northern states.

In March 1867, the Committee of Reconstruction approved Bingham’s revision that read, “Congress shall have power to make laws which shall be necessary and proper to secure to the citizens of each State all the privileges and immunities of citizens in the several States, and to all persons in the several States equal protection in the rights of life, liberty, and property.” However, when Bingham sent the 14th Amendment to the states for approval, it instead stated, “No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States, nor shall any State deprive any person of life, liberty, or property without due process of law, nor deny to any person within its jurisdiction the equal protection of the laws.” [7]

Why the change? Let’s make a few preliminary observations. The key phrases, such as “privileges and immunities” and “life, liberty, and property” appear to have stayed the same.  The differences in the language demonstrate just how much Bingham wanted to preempt any Southern states’ attempts to deny black citizens their rights. The subject of the section has changed from an affirmative right of Congress to a ban on state action. The former might have been more politically appealing when presented before a Congressional committee for it seemed to expand Congress’ jurisdiction. The intention of the 14th Amendment was not to empower them to write the kind of legislation they had already been crafting during the beginning of Reconstruction but to stop the states from writing laws such as black codes, which were pervasive in the South.

The type of law under the purview of the amendment has expanded from all those “necessary and proper” to any law relating to the benefits of being a citizen. This likely safeguards against legal challenges questioning or limiting what would fit the standard of “necessary and proper.” Finally, citizens have equal protection of all laws in the second version as opposed to only “in the rights of life, liberty, and property” in the version approved by the Committee on Reconstruction.  This is a key change because it eliminates the debate over which laws must uphold the vital concept of equal protection.

The strength of the provisions added in by Congress ensure that if politicians wanted to differentiate among the rights of citizens, as some current-day politicians wish to do with children using their citizenship to help their parents gain permanent residence and, eventually, citizenship, then it would take nothing short of a Constitutional amendment.


[1] Shyong, Frank, Cindy Chang, and Paloma Esquivel. "The Loaded Term 'anchor Baby' Conceals Complex Issues." LA Times, August 26, 2015. Accessed September 10, 2015. http://www.latimes.com/local/california/la-me-anchor-babies-20150827-story.html.
[2] Greenberg, Jon. "Liberal Group Tags Bobby Jindal as 'anchor Baby'" Politifact. August 25, 2015. Accessed September 1, 2015. http://www.politifact.com/punditfact/statements/2015/aug/25/occupy-democrats/liberal-group-tags-jindal-anchor-baby/.  
[3] "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875." Library of Congress. 2015. Accessed September 14, 2015. http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=014/llsl014.db&recNum=389.
[4] "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875." Library of Congress. 2015. Accessed September 14, 2015. http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=014/llsl014.db&recNum=389.
[5]  "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875." Library of Congress. 2015. Accessed September 14, 2015. http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=014/llsl014.db&recNum=389.
[6]  "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875." Library of Congress. 2015. Accessed September 14, 2015. http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=014/llsl014.db&recNum=389.
[7] "A Century of Lawmaking for a New Nation: U.S. Congressional Documents and Debates, 1774 - 1875." Library of Congress. 2015. Accessed September 14, 2015. http://memory.loc.gov/cgi-bin/ampage?collId=llsl&fileName=014/llsl014.db&recNum=389.

Photo Credit:  Flickr User Gage Skidmore

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