United States Constitution, law and history discussion
U.S. Citizenship Defined: Who is an American citizen?
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Before the Fourteenth Amendment’s adoption, the Constitution did not define citizenship. Citizenship was mentioned in Articles I and II, and in Article IV. To serve as a member of the House of Representatives, one must have been a citizen of the United States for seven years. Article I, Section 2. To serve as a Senator, one must have been a citizen of this country for nine years. Article I, Section 3. To serve as President, one must be a natural born citizen. Article II, Section 1. Meanwhile, “[t:]he citizens of each state shall be entitled to all privileges and immunities of citizens in the several states.” Article IV, Section 2 (“the comity clause”). Among Congress’s enumerated powers is “To establish a uniform rule of naturalization ….” Article I, Section 8, Clause 4.
Thus, the original, unamended Constitution did not define citizenship. In the turbulent years immediately preceding the Civil War, the infamous Dred Scott decision raised the issue of who is a citizen, ultimately spawning the Fourteenth Amendment.
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As a direct reaction to the Dred Scott decision, the forerunner of the Fourteenth Amendment was initially proposed before the Civil War, but its adoption was delayed by the Southern states' secession.
The Fourteenth Amendment was one of the three Constitutional amendments passed in the wake of the Civil War: The Thirteenth outlawed slavery; and the Fifteenth provided that the right to vote was not to be denied on account of race.
The operative provision of the Fourteenth Amendment that is of interest here is from Section 1. "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."
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Section 5 of the Fourteenth Amendment provides, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article."
In accordance with the Fourteenth Amendment and the Constitutional enumerated power “to establish a uniform rule of naturalization,” Congress has defined citizenship by statute and provided for numerous permutations of circumstances that constitute citizenship. Title 8 of the United States Code of laws contains those statutes.
Section 1401 of Title 8 defines the following as "citizens of the United States at birth:"
• Anyone born inside the United States (But the person must be "subject to the jurisdiction" of the United States, as the Fourteenth Amendment states. The child of a diplomat is therefore exempt from this provision.)
• Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person's status as a citizen of the tribe
• Anyone born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.
• Anyone born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national
• Anyone born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year
• Anyone found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21
• Anyone born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)
• A person born before May 24, 1934 of an alien father and a U.S. citizen mother who has lived in the U.S.
Anyone falling into these categories is considered natural-born, and is eligible to run for President or Vice President. These provisions allow the children of military families to be considered natural-born as well.
Separate sections of Title 8 address territories that the United States has acquired over time, such as Puerto Rico (8 U.S.C. 1402), Alaska (8 U.S.C. 1404), Hawaii (8 U.S.C. 1405), the U.S. Virgin Islands (8 U.S.C. 1406), and Guam (8 U.S.C. 1407). Each of these sections confers citizenship on persons living in these territories as of a certain date, and usually confers natural-born status on persons born in those territories after that date. For example, all persons born in Puerto Rico between April 11, 1899, and January 12, 1941, are automatically conferred citizenship as of the date the law was signed by the President (on June 27, 1952). All persons born in Puerto Rico on or after January 13, 1941, are natural-born citizens of the United States. Note that because of when the law was passed, the natural-born status was retroactive for some. In 8 U.S.C. 1403, the law states that anyone born in the Canal Zone or in Panama itself, on or after February 26, 1904, to a mother and/or father who is a United States citizen, was "declared" to be a United States citizen. Note that the terms "natural-born" or "citizen at birth" are missing from this section. (This last section apparently conferred United States citizenship on Senator John McCain who was born of American parents in the Canal Zone.)
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Second, from the Fourteenth Amendment, we know that two requirements were established for United States citizenship: born or naturalized in the United States and subject to its jurisdiction. "Jurisdiction" has come to mean "allegiance" to the United States. In the Slaughter House Cases, 16 Wall. (83 U.S.) 36 (1873), the Supreme Court opined that a child born in the United States to parents who were subjects of a foreign nation was not born subject to the jurisdiction of the United States and would not, therefore, acquire citizenship by birth. (See the immediately preceding post.)
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His proposal to change the Fourteenth Amendment and the Constitution is catching fire from all over the political spectrum. Immigration rights groups, who blocked such efforts in the past, are up in arms. Many conservatives, such as Alan Keyes and Joe Scarborough, have spoken out against tinkering with the Constitution and reconsidering the Fourteenth Amendment.
A more acceptable means (at least among some critics) would be statutory changes, leaving the Constitution and the Fourteenth intact. Section 5 of the Fourteenth Amendment provides, "The Congress shall have power to enforce, by appropriate legislation, the provisions of this article." Congress has cited its enumerated power under the Constitution, to provide for rules of naturalization, when defining who is a citizen of this country. Thus, some argue that based upon the intent of the framers of the Fourteenth Amendment, Congress could exercise its Section 5 powers of the Fourteenth Amendment to prevent the children of illegal aliens from automatically becoming United States citizens by virtue of merely being born on American soil.
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I offer this note of caution simply to urge our leaders to ponder this question with extreme care and extensive contemplation. The seemingly simple solution is not so simple in its ramifications, as is often the case in human affairs.
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In the case of Elk v. Wilkins, 112 U.S. 94 (1884), the Supreme Court ruled that an American Indian who had renounced allegiance to his tribe did not become "subject to the jurisdiction" of the United States by virtue of his tribal renunciation. The Court reasoned, "The alien and dependent condition of the members of the Indian tribes could not be put off at their own will without the action or assent of the United States. They were never deemed citizens of the United States except under explicit provisions of treaty or statute ...." 112 U.S. at 100. The majority opinion quoted a passage from the Dred Scott decision: "They [the Indian tribes:] may without doubt, like the subjects of any foreign government, be naturalized by the authority of Congress and become citizens of a state and of the United States, and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people." 60 U.S. at 404.
Beginning in 1870 and continuing through 1968, Congress extended offers of citizenship to various Indian tribes. Title 25 of the United States Code contains citizenship provisions for native Americans. Thus, Congress demonstrated that by using its Section 5 powers from the Fourteenth Amendment to enforce that Amendment, it could define who was properly within the jurisdiction of the United States.
I thank you for the comprehensive coverage of your discussion. I have heard several discussions of this issue during the weekend in light of Senator Graham bringing this up in the first place. However, as you are intimating, I believe Federal Law already covers this issue through Congress using its Section 5 power within the Fourteenth Amendment.Further, I would agree that an implementation of Senator Graham's proposal to "abolish" the 14th Amendment would end up with "legal chaos." I would be interested in further discussion from this group on this topic, and I would like to add additional information with additional citation. Elk v. Wilkins can be controlling on issue of what Congress may due pursuant to Section 5.
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I am so thankful to have you with our group.
I agree with your assessment: Why mess with the Constitution when legislation can accomplish what Senator Graham believes we need.
Meanwhile, however, I have some misgivings about rending thousands within our borders stateless. Just think about what would happen. For example, to where would we deport these people? If we can't deport them, will we have to jail them? Then aren't we still financially supporting them?
Clearly, these and a multitude of issues must be debated and resolved before any statutes disenfranchising folks are enacted. (Perhaps the statutes (if adopted) would apply only prospectively since retroactive application has been held violative of due process.)
By the way, Senator Graham is my law school classmate. All of his classmates are still stunned that he is in the Senate --- or politics at all. Lindsey was always quiet and self-effacing, yet very pleasant to be around. I've always liked him personally and continue respect him for what he has accomplished in his life.
Craig, please feel free to add more to this discussion. This certainly has been a long, hot summer, hasn't it?
Be well.
Doug
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At its adoption, the United States Constitution recognized citizenship of this country but did not define it. Early on in the United States, the general assumption was that the "English rule" or "jus soli" prevailed: Those born in the allegiance of the country and subject to its citizens were citizens. Jus soli contrasted with the rule then prevailing on the European continent, where "jus sanguines" was followed: One's citizenship was determined by the nationality of his or her parents.
In 1790, as laws were being passed by the Congress recently elected under the new Constitution, the national legislature enacted a statute giving American citizenship to those born to American parents outside of the country.
As we have seen, the Supreme Court established (albeit temporarily) an important exception to the rule that birth in country conferred citizenship, by holding in the infamous 1857 Dred Scott case, 19 How. (60 U.S.) 393, that a native-born African-American was not and could not become an American citizen. The Fourteenth Amendment, discussed in prior posts here, forever abrogated the Dred Scott decision on this point and definitely defined citizenship in terms of birth in this country and subjecting to its jurisdiction, thereby enacting the jus soli into the Constitution.
Of course, there are exceptions to jus soli. For example, children born in the United States to parents of foreign diplomats are not citizens of the United States by virtue of their birth on American soil.
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Public concern and resentment over immigration, whether illegal or legal, is nothing new. At various times in our history, immigration rose to the top of the national agenda often during calamities such as war and economic crises. At other times according to historians, nativist passions were enflamed when fifteen percent or more of our population consisted of immigrants.
As any concerned American knows, federal and state statutes are passed in our democracy in response to calls for governmental action. Disputes ensue that yield decisions by our courts and development of case law. The past immigration debates ran this same course and provided United States Supreme Court decisions that are instructive and arguably bearing on the revived debate over who is an American. Our understanding of the constitutional aspects of this citizenship debate is enhanced by specifically focusing on the response by the States, Congress and ultimately the Supreme Court to Chinese immigration coming after the Civil War. In the next posts here, we'll explore development of the law concerning the Chinese immigration crisis of that period.
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Eventually, the California legislature became more direct when it declared in 1890 that the “coming of Chinese persons into the State, whether subjects of the Chinese Empire or otherwise," was prohibited.
Congress in Washington followed this trend with passage in 1882 of the Chinese Exclusion Act, expressly forbidding any court, state or federal, from granting citizenship to any Chinese person. Criminal penalties were enacted for violators of the restrictive laws. 22 Stat. 58, Ch. 126 (1882). The Forty-Seventh Congress in an unusually terse preamble stated the basis for the law, “Whereas, in the opinion of the Government of the United States the coming of Chinese laborers to this country endangers the good order of certain localities within the territory thereof.” Id. Predictably, the Chinese Exclusion Act generated very high profile cases for resolution by the courts.
A contemporary editorial published in the San Francisco Call on February 8, 1896, summarized the growing legal quandary of the times. It read as follows. "The question at issue is not one that affects American-born Chinese only, but every American-born son of a foreign-born father who did not become a naturalized citizen of this country prior to the time arrived at maturity. In this view of the case one sees at a glance that many thousands of voters all over the United States are deeply interested in the knotty legal problem, though of course should the United States Supreme Court reverse the ruling of Judge Morrow, as it is confidently expected that it will, the American-born Chinese will be the only ones ultimately deprived of citizenship. Sons of non-naturalized Caucasians will merely have to secure naturalization in the ordinary way. But the Mongolians, while the existing Chinese restriction laws are in force, will be forever barred from citizenship."
The seminal Supreme Court decision emerging from this period is United States v. Wong Kim Ark, 169 U.S. 649 (1898). This was the case that had been discussed in the San Francisco Call editorial quoted above. Discussion of the Wong Kim Ark decision comes in the next posts here.
You can find the Court's opinion in any constitutional law textbook at your local library, or online at the following links. http://supreme.justia.com/us/169/649/...
http://www.law.cornell.edu/supct/html...
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"Large numbers of Chinese laborers of a distinct race and religion, remaining strangers in the land, residing apart by themselves...and apparently incapable of assimilating with our people, might endanger good order and be injurious to the public interests."
"As the respondent was born of alien parents, to wit, subjects of the Emperor of China, he was at his birth a subject of China, claimed by that nation as such, and therefore was not born 'subject to the jurisdiction' of the United States."
You can find a copy of the Government's briefs online at these links:
http://www.scribd.com/doc/23965360/Wo...
http://www.scribd.com/doc/23965362/Wo...
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"He has always subjected himself to the jurisdiction and dominion of the United States,...and has been taxed, recognized, and treated as a citizen of the United States."
"Prejudice of race and pretension of caste were set aside by the Fourteenth Amendment, which ordained in unequivocal and far-reaching terms that 'all persons born in the United States and subject to the jurisdiction thereof are citizens of the United States.' The language cannot by construction or interpretation be confined...to persons of the Caucasian race and persons of African descent, to the exclusion of persons of Mongolian descent."
You can access online Wong's brief filed with the United States Supreme Court at this link:
http://www.scribd.com/doc/23965351/Wo...
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Writing for the majority in an exhaustive opinion replete with citations, Justice Horace Gray engaged in a detailed discourse on the evolution of British common law on the issue of citizenship, and reliance thereon by colonial and later United States courts. 169 U.S. 649, 655-72. Next he traced the legislative definitions by Congress. 169 U.S. at 672-75. Finally, Justice Gray honed in on the Fourteenth Amendment as the basis for the Court’s decision. He wrote that with the Fourteenth Amendment “the fundamental principle of citizenship by birth within the dominion was reaffirmed in the most explicit and comprehensive terms.” 169 U.S. at 675. Citing Citizenship Clause (from Section One) of the Fourteenth Amendment, Justice Gray declared the effect of that constitutional provision upon defining who is an American citizen. “As appears upon the face of the [Fourteenth:] amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes …. But the opening words, ‘All persons born,’ are general, not to say universal, restricted only by place and jurisdiction, and not by color or race ….” 169 U.S. at 676.
In his conclusion, Justice Gray succinctly restated the issue before the Court and then provided its answer: “… [T:]he single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.” 169 U.S. at 705.
In his dissenting opinion, Chief Justice Melville W. Fuller argued that birthright citizenship had been repealed by the principles of the American Revolution and rejected by the framers of the Fourteenth Amendment. 169 U.S. at 705-32.
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Anyone interested in our country's Constitution should obtain a copy of America's Constitution: A Biography for his or her library. I refer to my copy on a regular basis.
Thank you, Douglas, for your illuminating comments on the Fourteenth Amendment citizenship clause.Tom Donnelly, counsel at the Constitutional Accountability Center, has also written an excellent article on the history of the Fourteenth Amendment citizenship clause here.
I must say that I disagree strenuously with the conclusion of Akhil Reed Amar (in chapter 2 of his book The Bill of Rights) that the Fourteenth Amendment does not incorporate the First Amendment Establishment Clause.
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This proposal is nothing new. Throughout the 1990s and into the current century, members of Congress have annually introduced legislation that would deny such birthright U.S. citizenship. Obviously, no such laws have been adopted as of this time.
In the posts that follow here, we will explore the development of the law defining American citizenship, and discuss what avenues, if any, Congress may pursue in response to Senator Graham’s efforts.