Citizenship Clause: Wikis

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The Citizenship Clause (also known as the Naturalization Clause[1]) 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 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. Further, the Framers sought a ratified constitutional amendment to protect the principle from repeal by any simple majority within a future Congress.

Contents

Text

Amendment XIV, Section 1, Clause 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.

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.[2] During the original debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause—described the clause as excluding Indians, who maintain their tribal ties, and “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” He was supported by other senators, including Edgar Cowan, Reverdy Johnson, and Senate Judiciary Committee Chairman Lyman Trumbull.[3]

Howard additionally stated the word jurisdiction meant "the same jurisdiction in extent and quality as applies to every citizen of the United States now"[3] and that the United States possessed a “full and complete jurisdiction” over the person described in the amendment.[4][5][3] Other senators, including Senator John Conness,[6] supported the amendment, believing citizenship ought to be extended to all children of foreigners born in the United States.

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[7] and United States v. Wong Kim Ark.[8] 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

All other persons born in the United States were citizens.

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:[9]

  • 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.[10] Such an act of expatriation must be accompanied by an intent to terminate American citizenship.[11]

Right to travel

In Saenz v. Roe, the Supreme Court held that this clause protects an aspect of the right to travel.[12] 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."[13]

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."[14]

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. [8]

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.'"[8] This observation by Gray about the term "natural-born citizen" was obiter dicta, since the case did not involve any controversy about presidential eligibility.

References

  1. ^ Garner, Devotion; Cheryl Nyberg. "Popular Names of Constitutional Provisions". Marian Gould Gallagher Law Library. http://lib.law.washington.edu/ref/consticlauses.html.  
  2. ^ Messner, Emily. “Born in the U.S.A. (Part I)”, The Debate, washingtonpost.com (2006-03-30).
  3. ^ a b c Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2890.
  4. ^ Congressional Globe, 1st Session, 39th Congress, pt. 4, p. 2895.
  5. ^ 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."
    Reverdy Johnson said in the same debate: "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."
  6. ^ "[...] During that debate, Senator Edgar Cowan of Pennsylvania objected to the citizenship clause of the 14th Amendment. 'Is the child of the Chinese immigrant in California a citizen?' he asked on the Senate floor. Senator John Conness of California said the answer should be 'yes.' '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,' Mr. Conness said.", Robert Pear (1996-08-07). "Citizenship Proposal Faces Obstacle in the Constitution". New York Times. http://query.nytimes.com/gst/fullpage.html?res=9503E7DE143EF934A3575BC0A960958260.  
  7. ^ Elk v. Wilkins, 112 U.S. 94 (1884)
  8. ^ a b c United States v. Wong Kim Ark, 169 U.S. 649 (1898)
  9. ^ Afroyim v. Rusk, 387 U.S. 253 (1967)
  10. ^ U.S. State Department, Possible Loss of U.S. Citizenship and Dual Nationality.
  11. ^ 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."
  12. ^ Saenz v. Roe, 526 U.S. 489 (1999)
  13. ^ Slaughterhouse Cases, 83 U.S. 36 (1873)
  14. ^ "7 FAM 1131.6-2 Eligibility for Presidency."

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