Citizenship Clause
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The citizenship clause (also known as the naturalization clause[1]) refers to a provision, in the Fourteenth Amendment to the United States Constitution at section one, clause 1. 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 people born in the United States; the framers of the Fourteenth Amendment enshrined this principle in the Constitution in order to stop the Supreme Court from ruling it unconstitutional for want of congressional authority to pass such a law, or from a future Congress altering it by a bare majority vote.
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[edit] 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. | ” |
[edit] Birthright citizenship
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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[2] and United States v. Wong Kim Ark.[3] 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.
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
- Children born to Native Americans who are members of tribes not taxed (These were later given full citizenship by the Indian Citizenship Act of 1924.)
The following persons born in the United States are explicitly citizens:
- Children born to U.S. citizens
- Children born to aliens who are lawfully inside the United States (resident or visitor), with the intention of amicably interacting with its people and obeying its laws
The Court in Wong Kim Ark did not explicitly decide whether U.S.-born children of illegal immigrants are "subject to the jurisdiction of the United States" (it was not necessary to answer this question since Wong Kim Ark's parents were legally present in the United States at the time of his birth). However, the Supreme Court's later ruling in Plyler v. Doe[4] stated that illegal immigrants are "within the jurisdiction" of the states in which they reside, and added in a footnote that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
[edit] Loss of citizenship
The Fourteenth Amendment does not provide any procedure for loss of United States citizenship. Indeed the amendment, taken absolutely literally, would seem to imply that loss of U.S. citizenship is impossible for anyone born or naturalized in the United States.[citation needed] Under the Supreme Court precedent of Afroyim v. Rusk, loss of U.S. citizenship is possible only under the following circumstances:[5]
- 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.[6]
[edit] Right to travel
In Saenz v. Roe, the Supreme Court held that this clause protects an aspect of the right to travel.[7] Namely, 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."[8] It appears that the Slaughterhouse Court was basing this statement on the Citizenship Clause, although the Saenz Court implied that the basis was the Privileges or Immunities Clause.
[edit] References
- ^ Garner, Devotion; Cheryl Nyberg. Constitutional Clauses & Their Nicknames. Marian Gould Gallagher Law Library.
- ^ Elk v. Wilkins, 112 U.S. 94 (1884)
- ^ United States v. Wong Kim Ark, 169 U.S. 694 (1898)
- ^ Plyler v. Doe, 457 U.S. 202 (1982)
- ^ Afroyim v. Rusk, 387 U.S. 253 (1967)
- ^ U.S. State Department, Possible Loss of U.S. Citizenship and Dual Nationality.
- ^ Saenz v. Roe, 526 U.S. 489 (1999)
- ^ Slaughterhouse Cases, 83 U.S. 36 (1873)
[edit] External links
- Ho, James C. "Can Congress Repeal Birthright Citizenship?", The Los Angeles Times, 2007-03-10.
