Document Type
Working Paper
Publication Date
7-2025
Language
en-US
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. Opponents also argue that the Fourteenth Amendment’s citizenship clause originally implied a “loyalty” or “allegiance” requirement.
These assertions are 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. The English established such a category for “Gypsy” or “Roma” immigrants, as recorded in major legal treatises with which Americans were familiar. In the congressional debates in 1866, members overwhelmingly agreed that the proposed clause would extend citizenship to “Gypsy” immigrants’ children, regardless of “allegiance” or “unlawful” status.
Next, 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 were mostly a system of deterrent taxes, fees, fines, and licensing requirements targeted at Chinese immigrants, plus criminal penalties on U.S. citizens who engaged in illegal transit. These early immigration restrictions established a concept 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.
If the public thought the citizenship clause might not apply to Chinese immigrants who were plausibly “unlawful", someone would have asked. No one raised that concern. Many Americans portrayed Chinese immigrants as “Coolies,” a racist slur that referred to indentured servitude, loyalty to foreign masters, and only temporary plans to stay in the U.S. Only one Senator raised such objections, and his arguments were entirely rejected. 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 doubt about “allegiance.”
Recommended Citation
Jed H. Shugerman,
An Originalist Case for Birthright Citizenship of Unlawful Immigrants' Children: Anti-Gypsy and Anti-Chinese Restrictions as Context
(2025).
Available at:
https://scholarship.law.bu.edu/faculty_scholarship/4167
