How Rand Paul Misunderstands the Fourteenth Amendment

The Kentucky senator points to its author’s intent to justify his opposition to birthright citizenship—but the clause in question has no clear author.

Carlos Osorio / AP

Last year, Time christened Rand Paul “the most interesting man in American politics.” I suppose that’s true, if you consider Floyd the Barber the most interesting man in Mayberry. Like Floyd, Paul always seems to be gazing at some fabulous landscape no one else can see; like Floyd, he is given to non-responsive pronouncements that don’t always make sense to ordinary mortals.

That propensity was on display in last week’s Republican debate, in which Paul managed to attach himself to Donald Trump’s assault on the bedrock Fourteenth Amendment principle of birthright citizenship. In the wake of Trump’s claim that only “television scholars” uphold that principle, Paul interjected the following:

The case that was decided around 1900 was, people had a green card, were here legally, and they said that their children were citizens. There’s never been a direct Supreme Court case on people who were here illegally, whether or not their kids are citizens. So it hasn’t really been completely adjudicated. The Fourteenth Amendment says that “those who are here and under the jurisdiction.” The original author of the—of the Fourteenth Amendment said on the Senate floor that this was applying to slaves, and did not specifically apply to others.

This statement contains one half-truth (at best) and one statement that, though vaguely phrased, seems flatly false. The half-truth concerns the case of Wong Kim Ark v. United States, in which the Supreme Court considered the citizenship clause and concluded that the words—“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”—mean that an American born in the U.S. of Chinese parents was a U.S. citizen, even though, under the law at the time, the parents were not and could never become citizens themselves.

Critics of birthright citizenship focus on Wong Kim Ark as if it were the source of the doctrine. They are eager to find a hole—any hole—in its holding. Hence the claim that the case reserved the issue of children of “those who are here illegally.”

Politifact investigated Paul’s claim about Wong Kim Ark late last week, and rated it “Mostly True.” And it is true, in the following sense. In Wong Kim Ark, the Court said that Wong, an adult-male child of Chinese immigrants legally present, was a citizen. It didn’t specifically state that an adult-male child of, say, Mexican immigrants legally present was a citizen. It did not state that an adult female child of immigrants lawfully present was a citizen. It did not state that a gay or lesbian child of immigrants was a citizen. It also didn’t discuss whether a small gray alien in a disk-shaped spacecraft would have citizen children. It said nothing about “green cards,” which didn’t exist. It did say this:

The Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

It’s pretty emphatic. If there were another exception, it seems to me, the Court would not have held it back.

In 1898, even the idea of “illegal immigration” barely existed. Chinese immigration had been halted in 1882, and Chinese present in the U.S. had to carry papers. Japanese and Korean immigrants, however, could still enter freely; they would face similar racial restrictions in the 20th Century. The border with Mexico was wide open by design, and Latino people in the Southwest moved back and forth freely. On the east coast, the doors were open wide. In her book, Impossible Subjects: Illegal Aliens and the Making of America, the Columbia University historian Mae Ngai relates that the concept of “illegal presence” did not come to the fore in the law until after the passage of the Johnson-Reed Act of 1924. Paul’s statement is “mostly true” because it’s something the justices would not even have thought to discuss.

The term “illegal immigrant,” according to the Oxford English Dictionary, originated in the late 1930s to mean “a Jew who entered or attempted to enter Palestine without official permission during the later years of the British mandate. “Illegal alien” appears somewhat later; the earliest use I can find is in 1950, when a federal appeals court used it to describe a Polish-born Mexican citizen whom Immigration and Naturalization Service officers had arrested while he was attempting to swim back across the Rio Grande: “the United States would have been quickly and cheaply relieved of an illegal alien, had appellant swum the river that night according to plan.” (It pops up again a few years later in a Stanford Law Review article engagingly titled “Wetbacks: Can the States Curb Illegal Entry?”)

Politifact unaccountably chose to ignore Paul’s claim that “the author” of the Fourteenth Amendment said “on the Senate floor” that the citizenship clause “was applying to slaves, and did not specifically apply to others.” This is fact-check malpractice; it will allow Paul to claim that his entire statement is “mostly true.”

I think there’s no truth in the second claim at all.

To begin with, Fourteenth Amendment did not have an “author.” The first draft was written by Robert Dale Owen, the radical former Congressman who served on the American Freedmen’s Inquiry Commission. From Owen, the draft passed into a closed session of the Joint Committee on Reconstruction. History doesn’t record who said what, but the draft amendment emerged much edited and was approved by a two-thirds majority of the House. From there it went to the Senate.

But at that point it had no citizenship language. That was added by a closed Senate caucus after debate began on the draft. There is no way to know who was the “author” of the citizenship clause. When it emerged with its present wording, it was shepherded to passage by Michigan Senator Jacob Howard. Howard had not been a member of the Joint Committee; no one regarded him as an “author” of any part of the amendment. Howard and the other proponents made clear that the clause would apply to the children of all aliens born in the United States, including babies born to Chinese parents (who were ineligible to citizenship) and even “Gypsies” (though it’s not clear there were any in the U.S. at that point), with the exception of children of diplomats and children of Indian tribes. I have read the entire debate on the draft amendment a number of times; I have the five volumes of the Congressional Globe on a shelf by my desk. I never saw any proponent of the amendment say that the clause, or any other part of the amendment, applied to slaves and no others.

I reached out to both Paul’s campaign headquarters and his Senate office to ask whom Paul is talking about as “the author of the Fourteenth Amendment” and when he said this. I haven’t heard anything back.

Whom are you quoting, Floyd?