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The Citizenship Clause is the first sentence of Section 1 in the Fourteenth Amendment to the United States Constitution, which was adopted on July 9, 1868. It states that "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside." This clause represented Congress's reversal of a portion of the Dred Scott v. Sandford decision which had 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 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. The framers of the Fourteenth Amendment sought to entrench the principle in the Constitution in order to prevent its being struck down by the Supreme Court or repealed by a future Congress.
Section 1, Clause 1, of the Fourteenth Amendment, reads:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.
The reference to naturalization in the Citizenship Clause is to the process by which immigrants are granted United States citizenship. Congress has power in relation to naturalization under the Naturalization Clause in Article I, Section 8, Clause 4 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, 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 Indians 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 Indians were 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 Indian tribes, which governed themselves and made 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.
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 Europe, Asia or the Middle East, although it is part of English common law and is common in the Americas.
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 Indian 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 Indian 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 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.
A 2010 Congressional Research Service report, however, observed that, though it could be argued that Congress has no power to define "subject to the jurisdiction" and the terms of citizenship in a manner contrary to the Supreme Court's understanding of the Fourteenth Amendment as expressed in Wong Kim Ark and Elk, since Congress does have broad power to pass necessary and proper legislation to regulate immigration and naturalization under the Constitution, Art. I, § 8, cls. 4 & 18 of the constitution Congress arguably has the power to define "subject to the jurisdiction thereof" for the purpose of regulating immigration.
Historian Eric Foner has explored the question of birthright citizenship and argues that "birthright citizenship stands as an example of the much-abused idea of American exceptionalism...birthright citizenship does make the United States (along with Canada) unique in the developed world. No European nation recognizes the principle."
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. Rusk, 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., treason) which demonstrate an intention to give up U.S. citizenship. Such an act of expatriation must be accompanied by an intent to terminate United States citizenship.
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)).
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:
[T]he Citizenship Clause of the Fourteenth Amendment expressly equates citizenship with residence: "That Clause does not provide for, and does not allow for, degrees of citizenship based on length of residence." Zobel, 457 U. S., at 69. It is equally clear that the Clause does not tolerate a hierarchy of 45 subclasses of similarly situated citizens based on the location of their prior residence. … [T]he protection afforded to the citizen by the Citizenship Clause of that Amendment is a limitation on the powers of the National Government as well as the States.
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."
The Oxford English Dictionary (OED) at "natural-born" defines it as a person who becomes a citizen at birth (as opposed to becoming one later). It lists this definition as going back to the 16th century. OED cites a law of 1695 (Act 7 & 8 Will. III (1696) 478) that states, "A Natural born Subject of this Realm...Who shall be willing to Enter and Register himself for the Service of His Majesty." It also quotes Thomas Jefferson 1776 (in T. Jefferson Public Papers 344): "All persons who..propose to reside..and who shall subscribe the fundamental laws, shall be considered as residents and entitled to all the rights of persons natural born." Blacks Law Dictionary (10th Edition) defines 'Natural Born Citizen' as "A person born within the jurisdiction of a national government." Webster's International Dictionary (3rd edition, 2000) defines "natural-born" as " especially: having the legal status of citizen or subject."
Section 1 of Article Two of the United States 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:
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.'
- Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 597.
- Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2896.
- United States v. Wong Kim Ark, 169 U.S. 649 (1898).
- Reyes, Carla. "Naturalization Law, Immigration Flow, and Policy" in Transforming America: Perspectives on U.S. Immigration, Volume 1, p. 149 (Michael LeMay ed., ABC-CLIO, 2013).
- Epps, Garrett. The Citizenship Clause: A "Legislative History". 60 American University Law Review 331, 352 (2010). "This language [in the Civil Rights Act of 1866] is significant but does not directly demonstrate anything about the 'clear intent' of the Citizenship Clause. First, it is a statute, enacted under the authority of some combination of the Naturalization Clause and the Thirteenth Amendment; the Fourteenth Amendment is a change to the Constitution, creating entirely new rights and providing government with new powers."
- Afroyim v. Rusk, 387 U.S. 253, 258 (1967). "Therefore, a bill was introduced [in 1818] to provide that a person could voluntarily relinquish his citizenship by declaring such relinquishment in writing before a district court and then departing from the country. The opponents of the bill argued that Congress had no constitutional authority, either express or implied, under either the Naturalization Clause or the Necessary and Proper Clause, to provide that a certain act would constitute expatriation."
- Immigration and Naturalization Service v. Chadha, 462 U.S. 919, 940 (1983). "It is also argued that these cases present a nonjusticiable political question, because Chadha is merely challenging Congress' authority under the Naturalization Clause, U.S.Const., Art. I, § 8, cl. 4, and the Necessary and Proper Clause, U.S.Const., Art. I, § 8, cl. 18."
- In contrast to the aforementioned sources, Black's Law Dictionary defines "Naturalization Clause" as being equivalent to the Citizenship Clause. See Epps, Garrett, ed. (2009). "Naturalization Clause". Black's Law Dictionary (9th ed.). St. Paul, Minnesota: West Publishing. p. 1126. ISBN 978-0-314-19949-2.
Naturalization Clause. The constitutional provision stating that every person born or naturalized in the United States is a citizen of the United States and of the state of residence. U.S. Const. amend. XIV, § 1. See jus soli.
- Robert, Pear (1996-08-07). "Citizenship Proposal Faces Obstacle in the Constitution". New York Times.
- Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2893. Senator Reverdy Johnson said in the debate: "Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign Power—for that, no doubt, is the meaning of the committee who have brought the matter before us—shall be considered as citizens of the United States ... If there are to be citizens of the United States entitled everywhere to the character of citizens of the United States, there should be some certain definition of what citizenship is, what has created the character of citizen as between himself and the United States, and the amendment says citizenship may depend upon birth, and I know of no better way to give rise to citizenship than the fact of birth within the territory of the United States, born of parents who at the time were subject to the authority of the United States."
- Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2890, 2892-3, 2896.
- Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2890.
- Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2897.
- Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 572. During the debate on the Civil Rights Act, Trumbull stated, "The Senator from Missouri and myself desire to arrive at the same point precisely, and that is to make citizens of everybody born in the United States who owe allegiance to the United States. We cannot make a citizen of a child of a foreign minister who is temporarily residing here. There is a difficulty in framing the amendment [to the Act] so as to make citizens of all people born in the United States who owe allegiance to it. I thought that might perhaps be the best form in which to put the amendment at one time, 'That all persons born in the United States and owing allegiance thereto are hereby declared to be citizens'; but upon investigation it was found that a sort of allegiance was due to the country from persons temporarily resident in it whom we would have no right to make citizens, and that that form would not answer."
- Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 498. The debate on the Civil Rights Act contained the following exchange:
Mr. Cowan: I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?
Mr. Trumbull: Undoubtedly.
Mr. Trumbull: I should like to inquire of my friend from Pennsylvania, if the children of Chinese now born in this country are not citizens?
Mr. Cowan: I think not.
Mr. Trumbull: I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.
Mr. Cowan: The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument.
Mr. Trumbull: If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I may be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much of a citizen as the child of a European.
- Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2891-2.
- See veto message by President Andrew Johnson.
- Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2891. During the debate on the Amendment, Conness declared, "The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law [the Civil Rights Act]; now it is proposed to incorporate that same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage, whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal Civil Rights with other citizens." He further added that "they [the Chinese] all return to their own country at some time or other".
- Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2891-2. Cowan expressed concern over the prospect of a state not being able to determine its own citizens. In particular, he identified two groups that he felt were unsuitable for citizenship but would have such bestowed upon their children by the Amendment: Chinese and Gypsies, the latter of which he described thus, "who owe to her [Pennsylvania] no allegiance; who pretend to owe none; who recognized no authority in her government; who have a distinct, independent government of their own ...; who pay no taxes; who never perform military service; who do nothing, in fact, which becomes the citizen, and perform none of the duties which devolve upon him, but, on the other hand, have no homes, pretend to own no land, live nowhere, settle as trespassers where ever they go." He subsequently cautioned against adopting the proposed Amendment, "Are these people, by a constitutional amendment, to be put out of the reach of the State in which they live? ... If the mere fact of being born in a country confers that right then they will have it. ... Therefore I think, before we assert broadly that everybody who shall be born in the United States shall be taken to be a citizen of the United States, we ought to exclude others besides Indians not taxed, because I look upon Indians not taxed as being much less pestiferous to society than I look upon Gypsies."
- Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2893-4.
- Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2893. Senate Judiciary Committee Chairman Lyman Trumbull, participating in the debate, stated the following: "What do we [the committee reporting the clause] mean by 'subject to the jurisdiction of the United States'? Not owing allegiance to anybody else. That is what it means." He then proceeded to expound upon what he meant by "complete jurisdiction": "Can you sue a Navajoe Indian in court? ... We make treaties with them, and therefore they are not subject to our jurisdiction. ... If we want to control the Navajoes, or any other Indians of which the Senator from Wisconsin has spoken, how do we do it? Do we pass a law to control them? Are they subject to our jurisdiction in that sense?. ... Would he [Sen. Doolittle] think of punishing them for instituting among themselves their own tribal regulations? Does the Government of the United States pretend to take jurisdiction of murders and robberies and other crimes committed by one Indian upon another? ... It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens."
- Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2895. 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.
- Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2894-5.
- Today British nationality is defined in statute, which supersedes the common law.
- Elk v. Wilkins, 112 U.S. 94 (1884).
- Urofsky, Melvin I.; Finkelman, Paul (2002). A March of Liberty: A Constitutional History of the United States. 1 (2nd ed.). New York, NY: Oxford University Press. ISBN 0-19-512635-1.
- Birthright Citizenship Under the 14th Amendment of Persons Born in the United States to Alien Parents (PDF) (Report). Congressional Research Service. August 12, 2010. p. 15 (page 18 of the PDF).
- Eric Foner, "Birthright Citizenship Is the Good Kind of American Exceptionalism," The Nation Aug. 27, 2015
- Afroyim v. Rusk 387 U.S. 253 (1967)
- U.S. State Department, Possible Loss of U.S. Citizenship and Dual Nationality. Archived April 16, 2009, at the Wayback Machine.
- Vance v. Terrazas, 444 U.S. 252 (1980): "As we have said, Afroyim requires that the record support a finding that the expatriating act was accompanied by an intent to terminate United States citizenship."
- Saenz v. Roe, 526 U.S. 489 (1999).
- Slaughterhouse Cases, 83 U.S. 36 (1873).
- "citizen". Black's Law Dictionary (10th ed.). Thompson Reuters. 2009.
- "7 FAM 1131.6-2 Eligibility for Presidency."
- Sen Hu and Jlellin Dong, eds. (2010). The Rocky Road to Liberty: A Documented History of Chinese Immigration and Exclusion. Javvin. p. 189.
- Ho, James C (2007-03-10). "Can Congress Repeal Birthright Citizenship?". The Los Angeles Times.
- Eastman, John. "From Feudalism to Consent: Rethinking Birthright Citizenship", Heritage Foundation, Legal Memorandum #18 (2006-03-30).