An Originalist Case for Birthright Citizenship of Unlawful Immigrants' Children: 1850s-1860s Anti-Chinese Restrictions as Categorical Context

Abstract

The Trump administration and other opponents of birthright citizenship for the children of “unlawful immigrants” make the following originalist claim about the Fourteenth Amendment: Even if the clause meant birthright citizenship, it applies today only to “lawful immigrants,” because the category of “unlawful immigrant” or “illegal immigrant” did not exist in the 1860s, when the clause was written and ratified. This assertion is historically inaccurate. 

To the contrary, the concept of “unlawful immigrants” existed in the 1850s-60s, and Americans ratified birthright citizenship without indicating any doubt that citizenship would extend to their children. This paper summarizes recent historical scholarship documenting a political movement against Chinese immigrants in western states and territories – especially California – leading to state restrictions against Chinese immigrants in the 1850s and early 1860s, followed by early federal restrictions in 1862 and debates over broader exclusion. These early immigration restrictions established a new legal regime with similar concepts of “unlawful” immigrants. They also demonstrated the rise of a powerful political movement that sought more direct exclusion, so that the nation had notice of the modern category of "unlawful" immigrants. In 1866, the congressional debates over the citizenship clause explicitly confirmed that the text would grant citizenship to Chinese immigrants, without raising a concern about this category of immigrants.

Many Americans portrayed Chinese immigrants as “Coolies,” a racist slur that referred to indentured servitude and loyalty to foreign masters. If the public wondered if “birthright citizenship” included a “loyalty” or “allegiance” test, someone would have asked. If the public thought the citizenship clause might not apply to Chinese immigrants who were plausibly “unlawful," someone would have asked. Thus, the up-to-date historical record of original public meaning confirms an original bright-line birthright citizenship rule that applied to the children of unlawful immigrants, regardless of any question about "loyalty" or “allegiance.”

Keywords: Birthright citizenship, Fourteenth Amendment, Immigration, Originalism