[Congressional Record Volume 170, Number 184 (Wednesday, December 11, 2024)]
[Senate]
[Pages S6950-S6951]
From the Congressional Record Online through the Government Publishing Office [www.gpo.gov]



                         Birthright Citizenship

  Mr. KAINE. Madam President, I rise today to discuss a fundamental 
question: Who is a citizen of the United States?
  My comments are inspired by an interview given recently by the 
President-elect in which he announced that he would try to end 
birthright citizenship on day one of his Presidency.
  In the same interview, he claimed that the United States was the only 
nation on Earth offering birthright citizenship. What is birthright 
citizenship? Is the United States the only nation that has it?
  Let's start with the Constitution. The 14th Amendment enacted by 
Congress in 1866 and ratified by the States in 1868 contains a clear 
definition of citizen.
  Section 1 states:

       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.

  A very straightforward definition. If you are born in the United 
States or naturalized by law--and that is covered in article I of the 
Constitution that Congress may set up a process for naturalizing--you 
are a U.S. citizen so long as you are subject to the jurisdiction of 
this country. And there is no equivocation, ``all persons'' in either 
category are U.S. citizens.
  The Constitution was first adopted, as we all know, in 1787. Why was 
this definition of citizen added to the Constitution in 1868--90 years 
later?
  Surprisingly, there was no definition of citizen in the Constitution 
as originally issued. The word ``citizen'' was used once without 
definition. Article II defines the qualifications to be President as 
follows:

       No person except a natural born Citizen, or a Citizen of 
     the United States . . . shall be eligible to the Office of 
     President.

  But the word ``citizen'' was not defined. The records of the 
Constitutional Convention show that the Framers considered defining the 
term ``citizen,'' but they had disagreements. And they couldn't reach a 
definition that satisfied them, and so they left the term ``citizen'' 
undefined in the Constitution as originally promulgated.
  This definition was added in the 14th Amendment in 1868 to fix a 
problem, a grievous problem: America's embrace of slavery.
  Dred Scott was born enslaved in Virginia in 1799. His parents were 
also enslaved, and his family had likely resided in this country for 
generations. Scott's owner took him first to Alabama and then to St. 
Louis and finally sold him to Army surgeon John Emerson when he was 
about 31 years old in 1830.
  Dr. Emerson then took Dred Scott first to Illinois, a free State, and 
then to the Wisconsin Territory, where slavery was prohibited. Dred 
Scott worked as an enslaved laborer for the Emerson family for 16 years 
after they had purchased him. And he had attempted, over the course of 
those years, to purchase his own freedom and also the freedom of his 
wife Harriet. But the Emerson family refused to allow him to purchase 
his own freedom.
  So he eventually filed a freedom suit in St. Louis, seeking to be 
released from slavery on the grounds that when he resided in Illinois, 
a free State, and then in the Wisconsin Territory, a free territory, 
that residence extinguished his slavery and rendered him a freedman.
  The trial court in St. Louis ruled in his favor, granting him his 
freedom. But the Missouri Supreme Court reversed the decision. The 
matter was then appealed to the U.S. Supreme Court: Was Dred Scott free 
or enslaved?
  The U.S. Supreme Court rendered one of its most notorious decisions, 
Dred Scott v. Sandford, in 1857. Under the guidance of Chief Justice 
Roger Taney, the Court didn't simply confront the lower court issue, 
whether an enslaved person traveling to a free State or territory 
thereby gains freedom; instead the Court went much further, finding 
that no person of African descent, free or enslaved, no matter how long 
they or their family had lived here, could ever be considered a citizen 
of the United States.
  And without being a citizen, Dred Scott did not even have the right 
to seek relief in an American court. The heart of the Dred Scott 
opinion is very, very chilling. Justice Taney, in writing about African 
descendants living in the United States, said this:

       We think . . . that they are not included, and were not 
     intended to be included, under the word ``citizens'' in the 
     Constitution, and can therefore claim none [none] of the 
     rights and privileges which that instrument provides for and 
     secures to citizens of the United States.

  Even though the Constitution contained no definition of citizen, the 
Court declared broadly that no one of African descent could ever--could 
ever--attain that status.
  The Dred Scott v. Sandford decision was immensely controversial. It 
went far beyond Dred Scott's situation and held that all 4 million 
enslaved Black Americans in 1857, as well as hundreds of thousands of 
free men and women, were not and could not nor ever be citizens of the 
only country they had ever known.
  Two of the Justices of the Court dissented from the ruling, and one 
resigned partially to protest it. The backlash over Dred Scott v. 
Sandford was so severe that it became one of the precipitating causes 
of the Civil War a few years later.
  As the Civil War came to a close, with hundreds of thousands dead, 
with

[[Page S6951]]

much of the South in ruins, with President Lincoln assassinated, and 
with slavery abolished by the 13th Amendment, the reunited Nation 
realized it needed to fix the damage done by the Dred Scott case, and 
to do so, it needed to finally add a definition of citizen to the 
American Constitution. And that is what Congress and the States did in 
adopting section 1 of the 14th Amendment.
  All persons--all persons--either born in the United States or 
naturalized by law are citizens so long as they are subject to U.S. 
jurisdiction.
  This sentence, this one sentence, turned the formerly enslaved and 
all free African-Americans born here into citizens.
  The 13th Amendment rendered them not slaves, and yet they were not 
yet citizens so long as Dred Scott was the law of the land. This 
sentence was what turned liberated slaves and free African-Americans 
into U.S. citizens: If you are born in America, citizenship is your 
birthright.
  In the 1890s, the notion of birthright citizenship was tested in the 
Supreme Court. A man by the name of Wong Kim Ark was born in San 
Francisco to Chinese parents who were not U.S. citizens. He traveled to 
China, and then, in traveling back to the United States, his birthplace 
and home, he was denied reentry into this country based on the Chinese 
Exclusion Act, an egregious law of the time attempting to bar Chinese 
immigration. He sued to overturn the congressional ban, and the Court 
ruled in 1898 that he was a U.S. citizen based on the plain language of 
the 14th Amendment, and the Chinese Exclusion Act could therefore not 
apply to bar him entry into this country.
  Lawyers in the case attempted to argue, as some do today, that Wong 
Kim Ark, although born in the United States, was not subject to the 
jurisdiction of this country, but the Court dispatched this argument 
quickly by finding that Wong Kim Ark was clearly subject to the laws of 
the land of his birth.
  This ruling from 1898 has been the clear understanding of American 
law ever since. Birthright citizenship means that you are a U.S. 
citizen if you are born in America. Your right to citizenship does not 
depend upon the status of your parents. Dred Scott, Wong Kim Ark, and 
Donald Trump all meet that test.
  This birthright was only guaranteed following incalculable bloodshed, 
the centuries-long depravity of slavery, and the mass slaughter of the 
Civil War. The citizenship clause in the 14th Amendment was meant as an 
atonement for and a repair of that suffering.
  Anyone who wants to reverse or curtail birthright citizenship is 
acting directly contrary to the plain meaning of the Constitution, and 
they are attempting to move the United States back to a pre-Civil War 
mentality where certain kinds of people, although born in and long 
residing in the United States, are viewed as subordinate and unequal 
because of their parents' status or their ancestry.
  One additional point is important: The President-elect's claim that 
only the United States recognizes birthright citizenship. This 
statement is either ignorant or willfully deceptive. Thirty-three 
nations--many in the Americas, including Canada and Mexico--grant full 
birthright citizenship to all born within their borders. The United 
States is not alone in embracing birthright citizenship. In fact, I 
would argue that the United States has been the leader of a global 
movement to embrace birthright citizenship.
  I have described the painful history of how America reached the 
conclusion that all born here are entitled to citizenship so long as 
they are subject to the jurisdiction of this country. In future weeks, 
I will return to the Senate floor to describe the many benefits that 
birthright citizenship has bestowed on our Nation, and I will do so by 
telling the stories of Americans born to immigrant parents, whose 
contributions have enriched this country and even enriched the place we 
stand today--the U.S. Senate.
  I yield the floor.
  The PRESIDING OFFICER (Ms. Baldwin). The Senator from Florida.