36 AMERICAN HISTORY
excluded “children born on our soil to temporary sojourners,”
a remote issue, since owing to travel cost and time, most who
came to America came to stay.
The outcome was never in doubt. Republicans enjoyed a
healthy majority in both houses, and the former Confederate
states had not yet regained representation in Congress. On
February 2, 1866, the Senate passed the bill 33-12. On March
13, 1866, the House approved 111-38. The Civil Rights Bill of
1866 went to President Johnson for his signature.
Trumbull, who had met with the president while the bill
was pending, believed he had Johnson’s support. He felt
betrayed on March 27, 1866, when the president vetoed the
bill. Johnson claimed that since a European immigrant had to
undergo a five-year wait to seek citizenship but a former slave
would not, the bill discriminated “against large numbers of
intelligent, worthy, and patriotic foreigners, and in favor of
the Negro.” Reaction to Johnson’s veto was mixed. The Nation
attacked its logic as “that of a stump speech, and its law would
hardly pass current in a college moot court.” The New York
Times praised Johnson for rejecting the bill’s favoritism for the
“black freedman” over the “white immigrant.”
Counterattacking on April 6, 1866, the Senate overrode
Johnson’s veto 33-15. The vote drew applause in galleries that
included “some hundreds of men of color...whose dusky but
earnest faces were bent upon the fate of the bill.” Three days
later, the House overrode the veto
122-41, with the ensuing applause
“especially strong from the ‘colored
galleries.’”
Birthright citizenship was now
the law, but supporters were uneasy.
If one Congress could adopt jus soli by legislation, a later
Congress could reverse that action just as easily. A constitu-
tional amendment, Republican leaders felt, would give
greater permanence. They tacked citizenship onto the 14th
Amendment, pending in the Senate.
On May 30, 1866, Senator Jacob M. Howard (R-Michigan)
added language to the amendment granting citizenship to
“all persons born in the United States, and subject to the
jurisdiction thereof.” This provision was, Howard said,
“simply declaratory of what I regard as the law of the land
already.” Making that change, he said, would remove “all
doubt as to what persons are or are not citizens of the United
States,” an issue Howard called “a great desideratum in the
jurisprudence and legislation of this country.” The “subject
to” clause, he explained, would exclude children born to
foreign ambassadors in America and those born to members
of Indian tribes Congress treated as sovereign. Neither for-
eign diplomats nor these Native American tribes were con-
sidered subject to the jurisdiction of the United States. Native
Americans had to wait until 1924 for citizenship.
Pennsylvania Senator Cowan, jus soli’s most vocal foe, trot-
ted out the bogeymen of the day: Gypsies and the Chinese.
The Republican said he opposed citizenship for Gypsies,
who, he said, “wander in gangs in my State...(and) follow
no ostensible pursuit for a livelihood.” This was too much for
Senator John Conness (R-California), who knew firsthand
about immigration and bigotry. Born in Ireland in 1821,
he had come to America in 1836 and had lived through
the Know-Nothing era. “I have heard more about Gypsies
within the last two or three months than I have heard before
Huddled Masses
An 1892 lithograph
pictures European
immigrants arriving
in New York harbor.
Eating on Ellis Island
Arriving immigrants
could get a free meal
and buy packaged food
at the reception facility.
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