Second, the history of 14th Amendment, the clause was framed by the 39th congress to constitutionalize the Civil Rights Act of 1866 which had been passed by that same congress just two months earlier. The 1866 act explicitly denied Birthright Citizenship to persons "subject to any foreign power" and to "Indians not taxed". It is clear in the debate in the 39th congress that congress decided to replace this language with "and subject to the jurisdiction thereof" NOT because congress suddenly and without any comment decided to radically broaden the scope of Birthright Citizenship but rather that Congress was concerned that the phrase "Indians not taxed" generated uncertainty about the children of Indians, primarily rich and poor Indians.

The dispute is best captured I think by this comment from Senator Trumble who wanted to replace the words "Indians not taxed" even though he was the principle author of those words in the 1866 Civil Rights Act. Senator Trumble had this to say: "I am not willing to make citizenship in this country depend on taxation, I am not willing, if the Senator from Wisconsin is, that the rich Indian residing in New York shall be a citizen and the poor Indian residing in the state of New York shall not be a citizen."