DETROIT – For the past few years, a debate has been raging over whether someone born in the United States is automatically a citizen, even if their parents are not.
Ten years ago, virtually everyone, including the courts, assumed they were, based on this first sentence in the complex 14th Amendment to the U.S. Constitution:
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 in which they reside.
That seemed clear enough — until challenged during the Trump administration, when some argued, and are still arguing, that the amendment was never meant to apply to children born of foreign parents, especially undocumented or “illegal” ones.
That debate is still going on, and is likely to intensify if Donald Trump should again become president. But what very few know is that the confusion stems from words written by a remarkable man from Michigan who died long before anyone today was born.
U.S. Senator Jacob Merritt Howard is perhaps the most important person in Michigan, and perhaps, national history to have been almost totally forgotten — and he shouldn’t have been.
The U.S. Constitution has been amended only 17 times since the Bill of Rights was adopted in 1791. Howard had a major hand in writing three of those amendments. Working closely with President Abraham Lincoln, Howard, who had been a Detroit lawyer, wrote the 13th Amendment, the one abolishing slavery, by himself.
He had a hand in the writing of the 15th Amendment, which established the right of the former slaves to vote. But modern politics and what many see as a refugee crisis have renewed interest in his work on the 14th Amendment, and to what the “birthright citizenship” clause was actually supposed to mean.
Howard was universally acknowledged as a major power in the U.S. Senate and in the Republican Party. He had helped organize the 1854 convention in Jackson, Michigan where many think the party was founded, and some say he suggested the name “Republican.”
What he did do was draft the statement that committed the new party to opposing slavery as “a great moral, social and political evil.”
When the Civil War ended, he was named to the committee that drafted the 14th Amendment. During the Congressional debate on the section defining citizenship, he said that it “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the United States, but will include every other class of person.”
At first glance, that looks confusing. Was he saying that the children of parents who aren’t citizens are not born citizens? That is what Trump supporters argue.
But a more complete reading of the testimony and the debate seems to indicate that’s not what Howard meant at all; he seems to have meant that to apply only to diplomats. For example, if Kirsten Hillman, Canada’s current ambassador to the United States, gave birth to a baby in Washington, that child would not be a U.S. citizen.
But if a Canadian woman in private life came over as a tourist and gave birth in a Detroit hospital, that child would qualify.
In an apparent attempt to clear this up, Howard insisted on adding the phrase “and subject to the jurisdiction thereof,” to the definition of who was a citizen; foreign diplomats, unlike others, are not normally subject to American laws.
Since then, legal scholars, including James Ho, a conservative federal Court of Appeals judge affiliated with the Federalist Society, has said the Trump interpretation of the 14th Amendment is wrong.
The debate, however, is likely to continue. Why has history forgotten the man whose main goal in life was to eliminate slavery?
John Mogk, a distinguished law professor at Wayne State University, believes Howard “was wiped from history when opposition to integration set in after the Civil War,” in both north and south. He has been trying to get the State Bar of Michigan to honor the civil rights pioneer, so far without success.
After the amendments were ratified, Howard, who was also the author of the first “whistleblower” law protecting those who exposed government corruption, chose not to run for re-election to the U.S. Senate. He was 65, his wife had died, and he had five living children and a growing brood of grandchildren, and evidently wanted to get back to practicing law in Detroit.
But soon after he returned home in 1871, he was helping take down a huge tree that straddled the line between his house and a neighbor’s, and a blood vessel burst in his brain.
Howard is buried in Detroit’s famous Elmwood Cemetery, under an obelisk he ordered intentionally broken, to symbolize that every American wasn’t yet fully free when he died.
You have to wonder if he’d think someone ought to finish it now.
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(Editor’s Note: A version of this column also appeared in the Toledo Blade.)
