The Citizenship Clause is the first sentence of the Fourteenth Amendment to the United States Constitution, which was adopted on July 9, 1868, which states:
This clause reversed 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 concepts of state and national citizenship were already mentioned in the original U.S. Constitution adopted in 1789, but the details were unclear. Prior to the Civil War, only some persons born or naturalized in the United States, and subject to the jurisdiction thereof, were citizens of the United States and of the state wherein they reside, according to the various applicable state and federal laws and court decisions.
The Civil Rights Act of 1866 granted U.S. citizenship to all persons born in the United States who were "not subject to any foreign power, excluding Indians not taxed". 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.Congressional Globe, 1st Session, 39th Congress, pt. 1, p. 597.Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2896. 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sought to entrench the principle in the Constitution in order to prevent its being struck down by the Supreme Court or repealed by a future Congress.United States v. Wong Kim Ark, .
Pre-Amendment citizenship law Before the adoption of the Fourteenth Amendment, the antebellum United States generally embraced the common-law doctrine of citizenship by birth within the country. Justice Joseph Story described the rule in Inglis v. Trustees of Sailor's Snug Harbor:
Story excluded children of ambassadors and the children of occupying enemy soldiers from those eligible for citizenship under the common law.See Inglis, 28 U.S. at 155. But the rule also applied only to the people born of "free persons," thus excluding the children of slaves.State v. Manuel 20 N.C. 144 (1838). The rule also excluded the children of Native Americans living in tribes, on the reasoning that they were born under the dominion of their tribes, and not within the purview of the law of the United States.Goodell v. Jackson ex dem. Smith, 20 Johns. 693, (N.Y. 1823).
To those outside the above categories, the rule was generous in scope. One antebellum treatise, by William Rawle, stated: "Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."William Rawle, A View of the Constitution of the United States of America, 2d Edition, 1829, Ch. IX. In the 1844 New York case of Lynch v. Clarke, the court held that the common law doctrine applied in the United States, and ruled that a child born in the country of a temporary visitor was a natural-born citizen under this rule.Lynch v. Clarke 3 N.Y.Leg.Obs. 236 (1844)
Chancellor James Kent, in his Commentaries on American Law, framed the rule in terms similar to what would become the citizenship clause of the Fourteenth Amendment: “Natives,” he said, “are all persons born within the jurisdiction of the United States,” while “[a]n alien,” conversely, “is a person born out of the jurisdiction of the United States.”2 J. Kent, Commentaries on American Law, 33, 43 (1827)
The most significant challenge to the common law rule of birthright citizenship before the Civil War came from attacks on the rights of African-Americans, most famously in the United States Supreme Court's 1857 decision of Dred Scott v. Sandford, in which the court held that free African-Americans, though born in the United States, could not be citizens.Dred Scott v. Sandford, 60 U.S. 393, 426–427 (1857). See also Amy v. Smith 1 Litt. 326 (1822), State v. Claiborne 19 Tenn. 331 (1838), and State v. Manuel 20 N.C. 144 (1838), each of which discussed the common law rule and its application to free African-Americans. The dissenting justices relied on the common law rule of citizenship to challenge the majority decision. Justice John McLean, in his dissent, said of Dred Scott himself, "Being born under our Constitution and laws, no naturalization is required, as one of foreign birth, to make him a citizen."Scott, 60 U.S. at 531, J. McLean dissenting And Justice Benjamin Curtis, in his dissent, stated, "[I]t is a principle of public law, recognized by the Constitution itself, that birth on the soil of a country both creates the duties and confers the rights of citizenship.”Scott, 60 U.S. at 579, J. Curtis dissenting
During the American Civil War, Attorney General Edward Bates addressed an opinion letter to Treasury Secretary Salmon P. Chase, affirming the principle of birthright citizenship under the common law and touting its usefulness in the cause of racial equality:
After the Civil War, the U.S. Congress moved to grant citizenship to freed slaves, and to overrule the Dred Scott decision. Their first action was the Civil Rights Act of 1866, which declared: "...all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." Representative James F. Wilson of Iowa, upon introducing the citizenship clause of the Act, stated that it was "merely declaratory of what the law now is," and recounted at length the common law history of birthright citizenship.Cong. Globe, 39th Cong., 1st Sess., 1115–1117 (1866) Representative John Bingham of Ohio affirmed that the clause was "simply declaratory of what is written in the Constitution," with specific reference to the "natural-born citizen" qualification for presidential office.Cong. Globe, 39th Cong., 1st Sess., 1291 (1866)
The Fourteenth Amendment's citizenship clause was drafted in response to Senator Benjamin Wade's concern that, although the question of citizenship was "settled by the civil rights bill, and, indeed, . . . was settled before," there was a danger that "the Government should fall into the hands of those who are opposed to the views that some of us maintain."Cong. Globe, 39th Cong., 1st Sess., 2768 (1866). Thus it was Congress's obligation to "fortify and make [the citizenship guarantee] very strong and clear."Cong. Globe, 39th Cong., 1st Sess., 2768 (1866)
Text Section 1, Clause 1, of the Fourteenth Amendment, reads:
Naturalization 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.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
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.
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,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 Powerfor that, no doubt, is the meaning of the committee who have brought the matter before usshall 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." 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.Congressional Globe, 1st Session, 39th Congress, pt. 4, pp. 2890, 2892-3, 2896.