How CA Immigrants Racism Shapes Views of Citizenship

By Brian J. Johnson, specifically for CalMatters

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On Wednesday, April 1, the Supreme Court will hear oral arguments on whether 14th amendment to the constitution guarantees “citizenship by right of birth” – especially if born in the US children of undocumented immigrants must be citizens. Many lawyers will look for the “original public meaning” of the text.

The largely forgotten California election of 1867 reveals the answer. The original public meaning of the 14th Amendment should be clear to any originalist judge. It was clear enough to end the careers of the amendment’s supporters and spark a backlash that shaped the country immigration policy for future generations.

The Nationality Clause reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, shall be citizens of the United States and of the State wherein they reside.”

During the 1866 debate in CongressPennsylvania Senator Edgar Cowan complained of “Gypsies” who “knew no allegiance” and “settled as trespassers wherever they went.” He also argued that California should be able to defend itself against “a flood of immigration of the Mongolian race.” He suggested changing the text of the amendment to exclude both groups.

“Is the child of a Chinese immigrant in California a citizen? Is the child of a gypsy born in Pennsylvania a citizen?” he asked.

California Senator John Cones agreed with Cowen’s interpretation of the proposal, but insisted on keeping it as it was. He supported “a proposal to declare that children of all origins born in California shall be considered and treated as citizens of the United States, having equal civil rights with other citizens of the United States.”

Congress passed the bill without Cowan’s proposed exceptions.

In California, hostility toward Chinese immigrants was growing. Gubernatorial candidate Henry Haight and his Democratic Party sensed a political opening. For Election of 1867he campaigned on an explicitly anti-reconstruction—and anti-Chinese—platform. The other party, the Democrats said, wanted birthright citizenship, which would lead not only to “negro suffrage” but also to “the elevation of the Chinese to the equality of white men.”

The crowd shouted “Never! Never!”

At that time there were 10 times more Chinese than blacks living in California.

In his acceptance speechHaight opposed those who wanted America “to descend to the political level with the Chinese, whose want of truthfulness, courage, moral fortitude, and every quality that befits a man to govern himself,” made them “a race whose people are inferior in every quality.”

The 14th Amendment so dominated the political landscape that it was the only policy Haight mentioned in his acceptance speech and introductory address. As governor, he even refused to submit the amendment to the Legislature for consideration.

Senator Cones—an ally of President Abraham Lincoln and a pallbearer— left politics a few years later, in 1869.

The era of Chinese exclusion kicked into high gear. California banned the Chinese from employment in corporations and on public works projects. They also could not own land or testify in court.

The federal Chinese Exclusion Act of 1882 barred new immigrants entirely until 1943.

Through it all, however, a child born in America to Chinese parents was still a citizen. In 1890, Chinese exclusionists petitioned the Supreme Court to end birthright citizenship.loophole.”

Immigration services detained a man named Wong Kim Ark after a trip to visit his parents who were back in China. Wong, who was in his early 20s at the time, produced proof of his birth in San Francisco and requested his release.

The the government claims that because Wong’s parents were subjects of the Emperor of China, owed their allegiance to that country, and were ineligible for American citizenship, their son could not be a natural-born American.

The Supreme Court disagreed. He cites Cowan and Conness on the “legal meaning of the words themselves” amendment and notes that no one in the 1866 debate opposed them.

Ultimately, however, the Supreme Court declared that the outcome was controlled by something simpler: “the broad and plain words of the Constitution.”

After more than 100 years, the matter is before the court again. Nor the fix nor the historical record have changed.

This article was originally published on CalMatters and is republished under Creative Commons Attribution-NonCommercial-No Derivatives license.