Early in my commentary career, I found myself debating the meaning of one of my articles in an online chat with a woman who’d read the piece. Why the argument? Well, I was mischievous, I’ll confess, and, having a little fun, didn’t tell her I was the author. Towards our interaction’s conclusion she told me, quite confidently, that I didn’t understand what the writer was trying to say! (I lack self-knowledge, I guess.)
At least, though, inherent in the exchange was the idea that original intent matters. I mention this because people today often behave as if it’s irrelevant. Just consider, for instance, the “birthright citizenship” issue, currently before the Supreme Court.
Do you know that Senator Jacob Howard of Michigan, a man who coauthored the Citizenship Clause, clearly explained what we’re all now arguing about? Read on.
For more than 100 years, the 14th Amendment’s Citizenship Clause has been (mis)interpreted to mean that anyone born on U.S. soil—even an illegal alien—is automatically a citizen. It’s such an insane standard, and leads to such nation-rending mischief, that we could wonder how the provision’s framers could have legislated such destructiveness.
Well, they didn’t.
In a documented conversation in the U.S. Senate, Howard first explained that he considered the 14th Amendment to simply be declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.
In other words, it wasn’t meant to alter, just clarify. And then he clarified, saying that his provision
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 Government of the United States, but will include every other class of persons.
It doesn’t get much clearer than that.
For even more perspective, however, consider that the 14th Amendment was proposed in 1866, the year after the War Between the States’ conclusion. The timing was no coincidence: The Citizenship Clause was meant to guarantee citizenship to ex-slaves and their descendants.
Moreover, the man who introduced it, coauthor and Ohio senator Benjamin Wade, originally formulated it to read that it would apply to “persons born in the United States or naturalized by the laws thereof.” As the Federalist pointed out Monday, too, “Such language may have lent slightly more credence to the left’s claim that anyone born here is a citizen.”
And to avoid such misunderstandings is apparently why Senator Howard altered the text, adding the “subject to the jurisdiction thereof” caveat. It thenceforth read:
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.
This version, not Wade’s, is the one that made it into the Constitution, and Howard’s elaboration upon the exceptions explains why. It clarifies what “subject to the jurisdiction thereof” means, that illegal aliens are not, as the radical immigrationists claim, thus subject.
Given this, how can anyone argue for a different interpretation? The answer lies in dishonesty—and sometimes in a currently popular “legal philosophy” called “textualism.”
Advocated by figures such as Justice Neil Gorsuch, it states that constitutional provisions should be interpreted via a “plain reading of the text.” Sounds good, I know. The problem is that textualists believe this should be done even when it yields a result contrary to original (to the author’s/framers’) intent. Why, commentator Bill O’Reilly himself has expressed this notion. He claims there’s nothing we can do about birthright citizenship for all because that’s what “the Constitution says,” and that changing it would require an amendment (impossible to pass). So I’m going to leave you with some relevant food for thought.
An analogy: One day a couple’s little daughter comes crying to the father, saying “Tommy hit me!” So the dad summons his boy, gives him a tongue lashing and says, “Now, if you hit your sister again, you’re going to be sorrier than you can imagine!”
So everything is OK for a few hours. But then the girl comes bawling again. “Tommy kicked me!” she wails to dad.
So, livid, the father grabs the boy and says, “That’s it! You’re finished now! You know what I told you just this morning!”
“No, no, dad,” interjects Tommy, unfazed. “You said not to hit Sarah. You didn’t say anything about not kicking her!”
Now, what if the father then replied, “Well, ya’ got me there, kiddo! That’s some good lawyering! I should’ve phrased that more clearly!”?
“Here’s your allowance.”
Ridiculous? Insane? Yes, but it’s also something else.
Textualism.
The father’s “ruling”—ignoring his “law’s” true meaning in favor of wording and denying his daughter justice—was absurd. But it’s no more so than thinking a slavery-inspired, 1866 constitutional provision should be used to justify anchor-baby artifice by third millennium Third Worlders.
In other words, even if “subject to the jurisdiction thereof” could somehow be interpreted to cover illegals, it matters that the line’s author himself specified otherwise. It wouldn’t matter, though, to “textualists”; their reading trump’s a framer’s meaning—in their minds.
It’s crazy. For just as how it’s said that the Constitution is not a suicide pact, constitutional interpretation is not supposed to be a stupidity pact.
©2025 Selwyn Duke. All rights reserved.
Contact Selwyn Duke, follow him on X (formerly Twitter), Truth Social, MeWe, Gettr, Tumblr, Instagram or Substack or log on to SelwynDuke.com.
