Another Angle on Birthright Citizenship

Gerard N. Magliocca

When Andrew Johnson vetoed the Civil Rights Act of 1866, one of his reasons was that the Act would give birthright citizenship to "the people called gypsies." This concern was echoed in Congress. Senator Edgar Cowen of Pennsylvania asked whether the Act would confer citizenship on the children of "Gypsies born in this country?" Senator Lyman Trumbull responded: "Undoubtedly." 

Senator Cowan raised the same objection to the Fourteenth Amendment. He stated that "Gypsies" were a menace to Pennsylvania because they are people "who invade our borders, who owe to her no allegiance; who pretend to owe none" and "whose sole merit is a universal swindle." "[B]efore we assert broadly that everybody who shall be born in the United States shall be taken as a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as much less dangerous and much less pestiferous to society than I look upon Gypsies." 

Again, the reply (this time by Senator John Conness of California) was that the Fourteenth Amendment would make these people citizens. He said that the "only invasion of Pennsylvania within my recollection was an invasion very much worse and more disastrous to the State, and more to be feared and more feared than that of Gypsies. It was an invasion of rebels, which this amendment, if I understand it aright, is intended to guard against and to prevent a recurrence of." "I have lived in the United States for many a year," Senator Conness added, "and really I have heard more about Gypsies within the last two or three months than I have heard before in my life."

What does this debate mean for the Citizenship Clause? The first point is that the claim that allegiance to the United States is required by the "subject to the jurisdiction" language is wrong. The Roma, then called Gypsies, were the quintessential stateless people owing allegiance to no nation. But their children born here were citizens under the Civil Rights Act and the Fourteenth Amendment. An objection was made against this result on this ground and was rejected at the time.

But wait . . . there's more. Blackstone explained in Book Four of the Commentaries that at common law the Roma (whom he called "Egyptians, or gypsies") were not allowed to live in Britain. A statute of Henry VIII described them as "outlandish people" who have "committed many heinous felonies and robberies." Thus, "they are directed to avoid the realm, and not to return under pain of imprisonment, and forfeiture of their goods and chattels." A subsequent statute imposed a fine on anyone who brought them into the realm. Nevertheless, the children born in Britain to these illegal aliens were subjects of the Crown.

Most lawyers would have read Blackstone as part of their legal training and would have understood any references to "Gypsies" as having a special meaning. So should we.