Citizenship Clause
Encyclopedia
The Citizenship Clause refers to the first sentence of Section 1 in the Fourteenth Amendment to the United States Constitution
. This clause represented Congress
's reversal of that portion of the Dred Scott v. Sandford
decision that declared that African American
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 1866
had already granted U.S. citizenship to all persons born in the United States "not subject to any foreign power." The 39th Congress
proposed the principle underlying the Citizenship Clause due to concerns expressed about the constitutionality of the Civil Rights Act during floor debates in Congress. Further, the Framers sought a ratified constitutional amendment to protect the principle from repeal by any simple majority within a future Congress.
as an amendment to Section 1 of the joint resolution
as passed by the House
.
There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment. While the Citizenship Clause was intended to define as citizens exactly those so defined in the Civil Rights Act
, which had been debated and passed in the same session of Congress only several months earlier, the clause's author, Senator Jacob M. Howard
of Michigan, phrased it a little differently. In particular, the two exceptions to citizenship by birth for everyone born in the United States mentioned in the Act, namely, that they had to be "not subject to any foreign power" and not "Indians not taxed," were combined into a single qualification, that they be "subject to the jurisdiction" of the United States, and while Howard and others, such as Senate Judiciary Committee Chairman
Lyman Trumbull
of Illinois, the author of the Civil Rights Act, believed that the formulations were equivalent, others, such as Senator James R. Doolittle from Wisconsin, disagreed, and pushed for an alternative wording.
There was no recorded debate over who was encompassed by the expression “not subject to any foreign power” or whether these same people were excluded by the wording of the Citizenship Clause. Howard, when introducing the addition to the Amendment, stated that it was “the law of the land already” and that it excluded only “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Others also agreed that the children of ambassadors and foreign ministers were to be excluded. However, concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Trumbull, as well as President
Andrew Johnson
, asserted that both the Civil Rights Act and the Citizenship Clause would confer citizenship on them at birth, and no senator offered a contrary opinion. Trumbull even went so far as to assert that this was already true prior to the passage of the Civil Rights Act, although Senator Edgar Cowan
of Pennsylvania, disagreed, stating that this was only true for the children of Caucasian immigrants. Senator John Conness
of California expressed support for the Amendment for giving a constitutional basis for birthright citizenship to all children born in the United States to any parentage (including Chinese noncitizen residents who do not intend to reside permanently in the United States), even though he (and others) thought it had already been guaranteed by the Act, whereas Cowan opposed the Amendment (and Act), arguing that it would have the undesirable outcome of extending citizenship to the children of Chinese and Gypsy immigrants.
Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard's proposal more effectively excluded Aboriginal Americans on reservations and in U.S. territories from citizenship. Doolittle asserted, and Senators Reverdy Johnson
of Maryland and Thomas A. Hendricks
of Indiana concurred, that all Native Americans are subject to the jurisdiction of the United States, so that the phrase "Indians not taxed" would be preferable, but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States. Moreover, they objected to the phrase "Indians not taxed" on the basis that it could be construed as making citizenship dependent on wealth and also that it would allow states to manipulate who is a citizen in their state through tax policy.
, or "right of the territory"— does not exist in most of 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 automatically receive citizenship under the Fourteenth Amendment if they voluntarily left their tribe. 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 have a permanent domicile and residence in the United States and are carrying on business 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.
, loss of 14th-Amendment-based U.S. citizenship is possible only under the following circumstances:
For jus sanguinis
U.S. citizenship, i.e., citizenship for the children born abroad of U.S. citizen parents, which is established only by congressional statute and not the U.S. Constitution (including its amendments), these restrictions do not apply (e.g., cf. Rogers v. Bellei
, 401 U.S. 815 (1971)).
, 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."
Blacks Law Dictionary (9th Edition) defines 'Natural Born Citizen' as "A person born within the jurisdiction of a national government."
The Constitution requires that a candidate for President of the United States
be a "natural-born citizen". According to the US Department of State Foreign Affairs Manual
: "the fact that someone is a natural born citizen (citizen at birth) pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes."
The majority opinion by Justice Horace Gray
in United States v. Wong Kim Ark observed that:
Fourteenth Amendment to the United States Constitution
The Fourteenth Amendment to the United States Constitution was adopted on July 9, 1868, as one of the Reconstruction Amendments.Its Citizenship Clause provides a broad definition of citizenship that overruled the Dred Scott v...
. This clause represented Congress
United States Congress
The United States Congress is the bicameral legislature of the federal government of the United States, consisting of the Senate and the House of Representatives. The Congress meets in the United States Capitol in Washington, D.C....
's reversal of that portion of the Dred Scott v. Sandford
Dred Scott v. Sandford
Dred Scott v. Sandford, , also known as the Dred Scott Decision, was a ruling by the U.S. Supreme Court that people of African descent brought into the United States and held as slaves were not protected by the Constitution and could never be U.S...
decision that declared that African American
African American
African Americans are citizens or residents of the United States who have at least partial ancestry from any of the native populations of Sub-Saharan Africa and are the direct descendants of enslaved Africans within the boundaries of the present United States...
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 1866
Civil Rights Act of 1866
The Civil Rights Act of 1866, , enacted April 9, 1866, is a federal law in the United States that was mainly intended to protect the civil rights of African-Americans, in the wake of the American Civil War...
had already granted U.S. citizenship to all persons born in the United States "not subject to any foreign power." The 39th Congress
39th United States Congress
The Thirty-ninth United States Congress was a meeting of the legislative branch of the United States federal government, consisting of the United States Senate and the United States House of Representatives. It met in Washington, D.C. from March 4, 1865 to March 4, 1867, during the first month of...
proposed the principle underlying the Citizenship Clause due to concerns expressed about the constitutionality of the Civil Rights Act during floor debates in Congress. Further, the Framers sought a ratified constitutional amendment to protect the principle from repeal by any simple majority within a future Congress.
Text
Amendment XIV, Section 1, Clause 1:Senate debate
The text of the Citizenship Clause was first offered in the SenateUnited States Senate
The United States Senate is the upper house of the bicameral legislature of the United States, and together with the United States House of Representatives comprises the United States Congress. The composition and powers of the Senate are established in Article One of the U.S. Constitution. Each...
as an amendment to Section 1 of the joint resolution
Joint resolution
In 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 House
United States House of Representatives
The United States House of Representatives is one of the two Houses of the United States Congress, the bicameral legislature which also includes the Senate.The composition and powers of the House 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. While the Citizenship Clause was intended to define as citizens exactly those so defined in the Civil Rights Act
Civil Rights Act of 1866
The Civil Rights Act of 1866, , enacted April 9, 1866, is a federal law in the United States that was mainly intended to protect the civil rights of African-Americans, in the wake of the American Civil War...
, which had been debated and passed in the same session of Congress only several months earlier, the clause's author, Senator Jacob M. Howard
Jacob M. Howard
Jacob 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, phrased it a little differently. In particular, the two exceptions to citizenship by birth for everyone born in the United States mentioned in the Act, namely, that they had to be "not subject to any foreign power" and not "Indians not taxed," were combined into a single qualification, that they be "subject to the jurisdiction" of the United States, and while Howard and others, such as Senate Judiciary Committee Chairman
United States Senate Committee on the Judiciary
The United States Senate Committee on the Judiciary is a standing committee of the United States Senate, of the United States Congress. The Judiciary Committee, with 18 members, is charged with conducting hearings prior to the Senate votes on confirmation of federal judges nominated by the...
Lyman Trumbull
Lyman Trumbull
Lyman 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:...
of Illinois, the author of the Civil Rights Act, believed that the formulations were equivalent, others, such as Senator James R. Doolittle from Wisconsin, disagreed, and pushed for an alternative wording.
There was no recorded debate over who was encompassed by the expression “not subject to any foreign power” or whether these same people were excluded by the wording of the Citizenship Clause. Howard, when introducing the addition to the Amendment, stated that it was “the law of the land already” and that it excluded only “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” Others also agreed that the children of ambassadors and foreign ministers were to be excluded. However, concerning the children born in the United States to parents who are not U.S. citizens (and not foreign diplomats), three senators, including Trumbull, as well as President
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
Andrew Johnson
Andrew Johnson
Andrew Johnson was the 17th President of the United States . As Vice-President of the United States in 1865, he succeeded Abraham Lincoln following the latter's assassination. Johnson then presided over the initial and contentious Reconstruction era of the United States following the American...
, asserted that both the Civil Rights Act and the Citizenship Clause would confer citizenship on them at birth, and no senator offered a contrary opinion. Trumbull even went so far as to assert that this was already true prior to the passage of the Civil Rights Act, although Senator Edgar Cowan
Edgar Cowan
Edgar Cowan was an American lawyer and Republican politician from Greensburg, Pennsylvania. He represented Pennsylvania in the United States Senate during the American Civil War....
of Pennsylvania, disagreed, stating that this was only true for the children of Caucasian immigrants. Senator John Conness
John Conness
John Conness was a first-generation Irish-American businessman who served as a U.S. Senator from California during the American Civil War and the early years of Reconstruction. He introduced a bill to establish Yosemite National Park and voted to abolish slavery...
of California expressed support for the Amendment for giving a constitutional basis for birthright citizenship to all children born in the United States to any parentage (including Chinese noncitizen residents who do not intend to reside permanently in the United States), even though he (and others) thought it had already been guaranteed by the Act, whereas Cowan opposed the Amendment (and Act), arguing that it would have the undesirable outcome of extending citizenship to the children of Chinese and Gypsy immigrants.
Most of the debate on this section of the Amendment centered on whether the wording in the Civil Rights Act or Howard's proposal more effectively excluded Aboriginal Americans on reservations and in U.S. territories from citizenship. Doolittle asserted, and Senators Reverdy Johnson
Reverdy Johnson
Reverdy 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...
of Maryland and Thomas A. Hendricks
Thomas A. Hendricks
Thomas Andrews Hendricks was an American politician who served as a Representative and a Senator from Indiana, the 16th Governor of Indiana , and the 21st Vice President of the United States...
of Indiana concurred, that all Native Americans are subject to the jurisdiction of the United States, so that the phrase "Indians not taxed" would be preferable, but Trumbull and Howard disputed this, arguing that the U.S. government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States. Moreover, they objected to the phrase "Indians not taxed" on the basis that it could be construed as making citizenship dependent on wealth and also that it would allow states to manipulate who is a citizen in their state through tax policy.
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
Jus soli , also known as birthright citizenship, is a right by which nationality or citizenship can be recognized to any individual born in the territory of the related state...
, or "right of the territory"— does not exist in most of Europe, Asia or the Middle East, although it is part of English common law
Common law
Common law is law developed by judges through decisions of courts and similar tribunals rather than through legislative statutes or executive branch action...
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
Elk v. Wilkins
Elk 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 Ark
United States v. Wong Kim Ark
United States v. Wong Kim Ark, , was a United States Supreme Court decision that set an important legal precedent about the role of jus soli as a factor in determining a person's claim to United States citizenship...
. 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 automatically receive citizenship under the Fourteenth Amendment if they voluntarily left their tribe. 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
Indian Citizenship Act of 1924
The 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 have a permanent domicile and residence in the United States and are carrying on business 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.
Loss of citizenship
The Fourteenth Amendment does not provide any procedure for revocation of United States citizenship. Under the Supreme Court precedent of Afroyim v. RuskAfroyim v. Rusk
Afroyim v. Rusk, 387 U.S. 253 , was a United States Supreme Court decision that set an important legal precedent that a person born or naturalized in the United States cannot be deprived of his or her citizenship involuntarily. The U.S. government had attempted to revoke the citizenship of a man...
, loss of 14th-Amendment-based 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., treasonTreasonIn law, treason is the crime that covers some of the more extreme acts against 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. Treason against the king was known as high treason and treason against a...
) which demonstrate an intention to give up U.S. citizenship. Such an act of expatriationExpatriateAn expatriate is a person temporarily or permanently residing in a country and culture other than that of the person's upbringing...
must be accompanied by an intent to terminate American citizenship.
For jus sanguinis
Jus sanguinis
Ius sanguinis is a social policy by which citizenship is not determined by place of birth, but by having a parent who are citizens of the nation...
U.S. citizenship, i.e., citizenship for the children born abroad of U.S. citizen parents, which is established only by congressional statute and not the U.S. Constitution (including its amendments), these restrictions do not apply (e.g., cf. Rogers v. Bellei
Rogers v. Bellei
Rogers v. Bellei, , was a decision by the United States Supreme Court, which held that an individual who received an automatic congressional grant of citizenship at birth, but who was born outside the United States, may lose his citizenship for failure to fulfill any reasonable residence...
, 401 U.S. 815 (1971)).
Right to travel
In Saenz v. RoeSaenz v. Roe
Sáenz 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 Cases
Slaughterhouse Cases
The Slaughter-House Cases, were 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
Both the Oxford English Dictionary and Webster's International Dictionary (3rd edition) define it as a person who becomes a citizen at birth (as opposed to becoming one later). They list this definition as going back to the 16th century.Blacks Law Dictionary (9th Edition) defines 'Natural Born Citizen' as "A person born within the jurisdiction of a national government."
The Constitution requires that a candidate for President of the United States
President of the United States
The President of the United States of America is the head of state and head of government of the United States. The president leads the executive branch of the federal government and is the commander-in-chief of the United States Armed Forces....
be a "natural-born citizen". According to the US Department of State Foreign Affairs Manual
US Department of State Foreign Affairs Manual
The 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. Department of State.Together,...
: "the fact that someone is a natural born citizen (citizen at birth) pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes."
The majority opinion by Justice Horace Gray
Horace Gray
Horace Gray was an American jurist who ultimately served on the United States Supreme Court. He was active in public service and a great philanthropist to the City of Boston.-Early life:...
in United States v. Wong Kim Ark 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. "From Feudalism to Consent: Rethinking Birthright Citizenship", Heritage Foundation, Legal Memorandum #18 (2006-03-30).