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Citizenship Clause
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The citizenship clause (also known as the naturalization clause) refers to a provision, in the Fourteenth Amendment to the United States Constitution at section one, clause 1. This clause represented Congress's reversal of that portion of the Dred Scott v. Sandford decision that declared that African Americans 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 1866 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.
Senate debate
The text of the Citizenship Clause was first offered in the Senate as an amendment to Section 1 of the joint resolution as passed by the House.
During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the citizenship clause—described the clause as excluding not only Indians but “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Howard also stated the word jurisdiction meant the United States possessed a “full and complete jurisdiction” over the person described in the amendment.
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Encyclopedia
The citizenship clause (also known as the naturalization clause) refers to a provision, in the Fourteenth Amendment to the United States Constitution at section one, clause 1. This clause represented Congress's reversal of that portion of the Dred Scott v. Sandford decision that declared that African Americans 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 1866 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 Senate as an amendment to Section 1 of the joint resolution as passed by the House.
During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the citizenship clause—described the clause as excluding not only Indians but “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Howard also stated the word jurisdiction meant the United States possessed a “full and complete jurisdiction” over the person described in the amendment. Such meaning precluded citizenship to any person who was, in even the slightest respect, beholden to any sovereignty other than a U.S. state or the federal government.
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 soli, 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 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. Wilkins and United States v. Wong Kim Ark. 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 1924.
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
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. Rusk, 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) which demonstrate an intention to give up U.S. citizenship. Such an act of expatriation must be accompanied by an intent to terminate American citizenship.
Right to travel
In Saenz v. Roe, 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 Cases, 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 States 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 Manual: "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 Ark, Chief Justice Melville Fuller (joined by Justice John Marshall Harlan) 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 Gray 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.
External links
- Eastman, John. , Heritage Foundation, Legal Memorandum #18 (2006-03-30).
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