The
citizenship clause (also known as the
naturalization clause) refers to a provision, in the
Fourteenth Amendment to the United States ConstitutionThe Fourteenth Amendment to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments. It was adopted on July 9, 1868....
at section one, clause 1. This clause represented
CongressThe United States Congress is the bicameral legislature of the federal government of the United States of America, consisting of two houses, the Senate and the House of Representatives. Both senators and representatives are chosen through direct election....
's reversal of that portion of the
Dred Scott v. SandfordDred Scott v. Sandford, , was a decision by the United States Supreme Court that ruled that people of African descent imported into the United States and held as slaves, or their descendants—whether or not they were slaves—were not protected by the Constitution and could never be citizens of the...
decision that declared that
African AmericanAfrican Americans are citizens or residents of the United States who have origins in any of the black populations of Africa. In the United States, the terms are generally used for Americans with at least partial Sub-Saharan African ancestry...
s were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship. The
Civil Rights Act of 1866The Civil Rights Act of 1866 is a piece of United States legislation that gave further rights to the freed slaves after the end of the American Civil War.-Contents of Act & Controversy:...
had already granted U.S. citizenship to all people born in the United States; the framers of the Fourteenth Amendment enshrined this principle in the Constitution in order to stop the Supreme Court from ruling it unconstitutional for want of congressional authority to pass such a law, or a future Congress from altering it by a bare majority vote.
Amendment XIV, Section 1, Clause 1:
The text of the Citizenship Clause was first offered in the
SenateThe United States Senate is the upper house of the bicameral United States Congress, the lower house being the House of Representatives. The composition and powers of the Senate and the House are established in Article One of the U.S. Constitution . Each U.S state is represented by two senators,...
as an amendment to Section 1 of the
joint resolutionIn the United States Congress, a joint resolution is a legislative measure that requires approval by the Senate and the House and is presented to the President for his/her approval or disapproval, in exactly the same case as a bill....
as passed by the
HouseThe United States House of Representatives, commonly referred to as the "House," is the lower house of the bicameral United States Congress, the upper house being the United States Senate. The composition and powers of the House and the Senate are established in Article One of the Constitution...
.
There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment.
The
citizenship clause (also known as the
naturalization clause) refers to a provision, in the
Fourteenth Amendment to the United States ConstitutionThe Fourteenth Amendment to the United States Constitution, along with the Thirteenth and Fifteenth Amendments, was adopted after the Civil War as one of the Reconstruction Amendments. It was adopted on July 9, 1868....
at section one, clause 1. This clause represented
CongressThe United States Congress is the bicameral legislature of the federal government of the United States of America, consisting of two houses, the Senate and the House of Representatives. Both senators and representatives are chosen through direct election....
's reversal of that portion of the
Dred Scott v. SandfordDred Scott v. Sandford, , was a decision by the United States Supreme Court that ruled that people of African descent imported into the United States and held as slaves, or their descendants—whether or not they were slaves—were not protected by the Constitution and could never be citizens of the...
decision that declared that
African AmericanAfrican Americans are citizens or residents of the United States who have origins in any of the black populations of Africa. In the United States, the terms are generally used for Americans with at least partial Sub-Saharan African ancestry...
s were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship. The
Civil Rights Act of 1866The Civil Rights Act of 1866 is a piece of United States legislation that gave further rights to the freed slaves after the end of the American Civil War.-Contents of Act & Controversy:...
had already granted U.S. citizenship to all people born in the United States; the framers of the Fourteenth Amendment enshrined this principle in the Constitution in order to stop the Supreme Court from ruling it unconstitutional for want of congressional authority to pass such a law, or a future Congress from altering it by a bare majority vote.
Text
Amendment XIV, Section 1, Clause 1:
Senate debate
The text of the Citizenship Clause was first offered in the
SenateThe United States Senate is the upper house of the bicameral United States Congress, the lower house being the House of Representatives. The composition and powers of the Senate and the House are established in Article One of the U.S. Constitution . Each U.S state is represented by two senators,...
as an amendment to Section 1 of the
joint resolutionIn the United States Congress, a joint resolution is a legislative measure that requires approval by the Senate and the House and is presented to the President for his/her approval or disapproval, in exactly the same case as a bill....
as passed by the
HouseThe United States House of Representatives, commonly referred to as the "House," is the lower house of the bicameral United States Congress, the upper house being the United States Senate. The composition and powers of the House and the Senate are established in Article One of the Constitution...
.
There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment. During the original debate over the amendment Senator
Jacob M. HowardJacob Merritt Howard was a U.S. Representative and U.S. Senator from the state of Michigan during and after the American Civil War.-Early life:...
of Michigan—the author of the Citizenship Clause—described the clause as excluding Indians, whom maintain their tribal ties, and “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” He was supported by other senators, including
Edgar CowanEdgar Cowan was an American lawyer and Republican politician from Greensburg, Pennsylvania. He represented Pennsylvania in the United States Senate during the American Civil War....
,
Reverdy JohnsonReverdy Johnson was a statesman and jurist from Maryland.-Early life:Born in Annapolis, Johnson was the son of a distinguished Maryland lawyer and politician, John Johnson . He graduated from St. John's College in 1812 and then studied law...
, and
Senate Judiciary Committee ChairmanThe United States Senate Committee on the Judiciary is a standing committee of the United States Senate, the upper house of the United States Congress...
Lyman TrumbullLyman Trumbull was a United States Senator from Illinois during the American Civil War, and co-author of the Thirteenth Amendment to the United States Constitution.-Education and early career:...
. Howard additionally stated the word jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now" and that the United States possessed a “full and complete jurisdiction” over the person described in the amendment. Other senators, including Senator
John ConnessJohn Conness was a first-generation Irish-American businessman who served as a U.S. Senator from California....
, supported the amendment, believing citizenship ought to be extended to all children of foreigners born in the United States.
Birthright citizenship
The provisions in Section 1 have been interpreted to the effect that children born on United States soil, with very few exceptions, are U.S. citizens. This type of guarantee—legally termed
jus soliJus soli or birthright citizenship, is a right by which nationality or citizenship can be recognised to any individual born in the territory of the related state...
, or "right of the territory"— does not exist in most of Western Europe, Asia or the Middle East, although it is part of English
common lawCommon law is law developed by judges through decisions of courts and similar tribunals , rather than through legislative statutes or executive action, and to corresponding legal systems that rely on precedential case law....
and is common in the Americas.
The phrase
"and subject to the jurisdiction thereof" indicates that there are some exceptions to the universal rule that birth on U.S. soil automatically grants citizenship.
Two Supreme Court precedents were set by the cases of
Elk v. WilkinsElk v. Wilkins, , was a United States Supreme Court case.John Elk, a Native American was born on an Indian reservation and subsequently moved to non-reservation U.S. territory, Omaha, Nebraska, where he renounced his former tribal allegiance and claimed citizenship by virtue of the Citizenship Clause...
and
United States v. Wong Kim ArkUnited States v. Wong Kim Ark, , was a United States Supreme Court decision that set an important legal precedent about what determines United States citizenship.- Facts :...
.
Elk v. Wilkins established that Native American tribes represented independent political powers with no allegiance to the United States, and that their peoples were under a special jurisdiction of the United States. Children born to these Native American tribes therefore did not qualify for automatic citizenship under the Fourteenth Amendment. Indian tribes that paid taxes were exempt from this ruling; their peoples were already citizens by an earlier act of Congress, and all non-citizen Native Americans (called "Indians") were subsequently made citizens by the
Indian Citizenship Act of 1924The Indian Citizenship Act of 1924, also known as the Snyder Act, was proposed by Representative Homer P. Snyder of New York and granted full U.S. citizenship to America's indigenous peoples, called "Indians" in this Act...
.
In
Wong Kim Ark the Supreme Court held that under the Fourteenth Amendment to the U.S. Constitution, a man born within the United States to foreigners (in that case, Chinese citizens) who were lawfully residing in the United States and who were not employed in a diplomatic or other official capacity by a foreign power, was a citizen of the United States.
Under these two rulings, the following persons born in the United States are
not "subject to the jurisdiction" of the United States, and thus do not qualify for automatic citizenship under the Fourteenth Amendment:
- Children born to foreign diplomats
- Children born to enemy forces in hostile occupation of the United States
- Children born to Native Americans
Native Americans in the United States is the phrase that describes indigenous peoples from North America now encompassed by the continental United States, including parts of Alaska and the island state of Hawaii. They comprise a large number of distinct tribes, states, and ethnic groups, many of...
who are members of tribes not taxed (These were later given full citizenship by the Indian Citizenship Act of 1924The Indian Citizenship Act of 1924, also known as the Snyder Act, was proposed by Representative Homer P. Snyder of New York and granted full U.S. citizenship to America's indigenous peoples, called "Indians" in this Act...
.)
The following persons born in the United States are
explicitly citizens:
- Children born to U.S. citizens
- Children born to aliens who are lawfully inside the United States (resident or visitor), with the intention of amicably interacting with its people and obeying its laws
The Court in
Wong Kim Ark did not explicitly decide whether U.S.-born children of illegal immigrants are "subject to the jurisdiction of the United States" (it was not necessary to answer this question since Wong Kim Ark's parents were legally present in the United States at the time of his birth).
Loss of citizenship
The Fourteenth Amendment does not provide any procedure for loss of United States citizenship. Under the Supreme Court precedent of
Afroyim v. RuskAfroyim v. Rusk, 387 U.S. 253 , was a United States Supreme Court decision that set an important legal precedent that a United States citizen cannot be deprived of American citizenship involuntarily.Originally the United States Constitution did not address the issue.-Facts:Beys Afroyim was a...
, loss of U.S. citizenship is possible only under the following circumstances:
- Fraud in the naturalization process. Technically this is not loss of citizenship, but rather a voiding of the purported naturalization and a declaration that the immigrant never was a U.S. citizen.
- Voluntary relinquishment of citizenship. This may be accomplished either through renunciation procedures specially established by the State Department or through other actions (e.g., treason
In law, treason is the crime that covers some of the more serious acts of disloyalty to one's sovereign or nation. Historically, treason also covered the murder of specific social superiors, such as the murder of a husband by his wife...
) which demonstrate an intention to give up U.S. citizenship. Such an act of expatriationAn expatriate is a person temporarily or permanently residing in a country and culture other than that of the person's upbringing or legal residence...
must be accompanied by an intent to terminate American citizenship.
Right to travel
In
Saenz v. RoeSaenz v. Roe, 526 U.S. 489 , was a case in which the Supreme Court of the United States discussed whether there is a constitutional right to travel from one state to another.-Background:...
, the Supreme Court held that this clause protects an aspect of the right to travel. Specifically, the
Saenz Court said that the Citizenship Clause protects a citizen's right to resettle in other states and then be treated equally:
The
Saenz Court also mentioned the majority opinion in the
Slaughterhouse CasesThe Slaughter-House Cases, was the first United States Supreme Court interpretation of the relatively new Fourteenth Amendment to the Constitution...
, which had stated that "a citizen of the United States can, of his own volition, become a citizen of any State of the Union by a bona fide residence therein, with the same rights as other citizens of that State."
Natural-born citizens
The original unamended Constitution required (and still requires) that a candidate for
President of the United StatesThe President of the United States is the head of state and head of government of the United States and is the highest political official in the United States by influence and recognition...
be a "natural-born citizen". This raises the question of whether the Citizenship Clause of the Fourteenth Amendment affects eligibility to the American presidency, and also whether Congress can affect eligibility to the American presidency. According to the
US Department of State Foreign Affairs ManualThe Foreign Affairs Manual is published by the United States Department of State and can be accessed on the State Department's web site. It contains the functional statements, organizational responsibilities, and authorities of each of the major components of the U.S...
: "the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes."
Dissenting in the case of
United States v. Wong Kim ArkUnited States v. Wong Kim Ark, , was a United States Supreme Court decision that set an important legal precedent about what determines United States citizenship.- Facts :...
, Chief Justice
Melville FullerMelville Weston Fuller was the Chief Justice of the United States between 1888 and 1910.-Early life and education:...
(joined by Justice
John Marshall HarlanJohn Marshall Harlan was an American Supreme Court associate justice. He is most notable as the lone dissenter in the infamous Civil Rights Cases , and Plessy v. Ferguson , which, respectively, struck down as unconstitutional federal antidiscrimination legislation and upheld Southern segregation...
) wrote about the possible effect of the Citizenship Clause upon presidential eligibility:
Considering the circumstances surrounding the framing of the constitution, I submit that it is unreasonable to conclude that 'natural born citizen' applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.
The majority opinion by Justice
Horace GrayHorace Gray was an American jurist who ultimately served on the United States Supreme Court. He was an active in public service and a great philanthropist to the City of Boston.-Early life:...
in
United States v. Wong Kim Ark did not explicitly disagree with this comment by Fuller and Harlan, and instead merely observed that: "The constitution nowhere defines the meaning of these words ["citizen" and "natural born citizen"], either by way of inclusion or of exclusion, except in so far as this is done by the affirmative declaration that 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.'" This observation by Gray about the term "natural-born citizen" was
obiter dicta, since the case did not involve any controversy about presidential eligibility.
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