Jacob M. Howard

"The first amendment is to section one, declaring that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein the teside." I do not propose to say anything on that subject except that the question of citizenship has been so fully discussed in this body as not to need any further elucidation, in my opinion. This amendment which I have offered is simply 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. This 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 person. I am not yet prepared to pass a sweeping act of naturalization by which all the Indian savages, wild or tame, belonging to a tribal relation, are to become my fellow-citizens and go to the polls and vote with me."

"Ideological liberals (and conservatives such as Professor Yoo and Judge Ho) have in recent years invented a novel and fabulous interpretation of this passage, maintaining that when Howard mentions that “foreigners, aliens” are not “subject to the jurisdiction” of the United States he means to include only “families of ambassadors or foreign ministers.” If so, this would be an extraordinarily loose way of speaking: ambassadors and foreign ministers are foreigners and aliens, and thus their designation as such would be superfluous. .. If we give full weight to the commas after “foreigners” and after “aliens,” this would indicate a series which might be read in this way: “foreigners, aliens, families of ambassadors, foreign ministers,” are all separate classes of persons excluded from jurisdiction. Or it could be read in this way: “foreigners, aliens, [that is, those who belong to the] families of ambassadors or foreign ministers.” I suggest that the natural reading of the passage is the former, i.e., that the commas suggest a discrete listing of separate classes of persons excluded from jurisdiction. Of course, the debate was taken by shorthand reporters and not always checked by the speakers, so the issue cannot be settled simply on the basis of the placement of commas. .. In addition, Howard seemed to make a glaring omission—he failed to mention Indians as being excluded from the jurisdiction of the United States. He was forced to clarify his omission when challenged by Senator James R. Doolittle of Wisconsin, who queried whether the “Senator from Michigan does not intend by this amendment to include the Indians;” Doolittle thereupon proposed to add the language of the Civil Rights Act of 1866 “excluding Indians not taxed.” Howard vigorously opposed the amendment, remarking that “Indians born within the limits of the United States and who maintain their tribal relations, are not in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi foreign nations.” .. In other words, the omission of Indians from the exceptions to the jurisdiction clause was intentional. Howard clearly regarded Indians as “foreigners, aliens” and thus not “subject to the jurisdiction” of the United States. This conclusion was supported by Senator Lyman Trumbull who, as we will discuss below, also opposed Doolittle’s amendment. This is clear evidence against the claims of ideological liberals and others that Howard meant that foreigners and aliens included only the families of ambassadors and foreign ministers."