Naturalization Clause – Birthright Citizenship?
Naturalization Clause – Quick Overview
The modern debate around whether the children of illegal aliens born in the United States should be United States citizens is centered on the Naturalization Clause (also known as Citizenship Clause). In 1898, the Supreme Court held the Naturalization Clause grants United States citizenship to virtually everyone born on United States soil. This decision was rendered in the case of United States v. Wong Kim Ark. This decision reflects the current state of the law in the United States. However, as with most Supreme Court cases, this decision is inconsistent with the plain meaning of the Naturalization Clause of the Fourteenth Amendment.
Naturalization Clause – Purpose and Intent
The Naturalization Clause was meant to grant citizenship rights to those recently emancipated slaves who had been denied the rights of citizenship by their states. In addition, the Naturalization Clause was meant to overturn the Supreme Court’s infamous, Dred Scott v. Sandford decision that said persons of African descent were not citizens. This intention is clear given the other three clauses of the Fourteenth Amendment’s first section that are also aimed at elevating the legal status of blacks.
Even though the Thirteenth Amendment had been ratified and slavery had been abolished, the legal status of recently emancipated slaves had not been elevated to anything close to the status of citizenship. Blacks could not own property, testify in court where a white man was a party to an action, or partake in certain occupations, among other things. As such, a constitutional amendment was necessary to raise the legal status of recently emancipated blacks, while precluding states from denying these rights by claiming blacks were not citizens and thus not entitled to these basic rights and protections.
Naturalization Clause – Textual Meaning
The Naturalization Clause states, “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.” As such, all persons born in the United States are citizens of the United States and the state wherein they reside if they are subject to the jurisdiction of the United States.
Naturalization Clause – Meaning of, “subject to the jurisdiction thereof”
The language, “and subject to the jurisdiction thereof,” was meant to exclude citizenship rights from those persons born in the United States who were subject to the authority of another jurisdiction (i.e., the foreign jurisdiction where the parent(s) were citizens).
The same Congress that passed the Fourteenth Amendment passed Section 1992 of the Revised Statutes of the United States, which said, “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Congressman John Bingham, considered the architect of Section 1 of the Fourteenth Amendment, said Section 1992 of the U.S. Revised statutes meant, “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.” Senator Lyman Trumbull said “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…”
According to Jacob Howard, the United States Senator who authored the Naturalization Clause, “[e]very person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.” As such, only those persons born in the United States and “not subject to any foreign power,” are US citizens and citizens of the state where they reside.
So who are the, “subjects of a foreign power”? According to Thomas Jefferson, “Aliens are the subjects of a foreign power.” What does it mean to be, “subject to the jurisdiction thereof”? It means being born in the United States and owing allegiance to the United States. Thus, boiling this down, children born in the United States to parents owing allegiance to a foreign country are not granted citizenship under the Naturalization Clause.
Naturalization Clause – Brief History of Citizenship in the United States
Default birthright and naturalization law in the United States was that of common law carried over from England. English common law followed the principle of “Jus soli,” or soil birthright citizenship. As such, in the absence of state statutes to the contrary, anyone born within a state was a citizen of that state by virtue of the birth occurring within that jurisdiction.
A notable case illustrating this point was Lynch v. Clarke, a New York state case from 1844. In Lynch v. Clarke, the state court used English common law in the absence of a state statute to determine whether a woman born in New York City was a citizen of New York even though her parents were aliens traveling through New York. The court ruled the woman was a citizen of New York. This state court decision led to an 1857 New York statute denying citizenship to transient aliens. The New York statute said, “The Citizens of the state are: (1) All persons born in this state, and domiciled within it, except the children of transient aliens, and of alien public ministers and consuls; (2) All persons born out of this state who are citizens of the United States and domiciled within this state.”
After the Fourteenth Amendment became law, Washington DC, California, Connecticut, Montana and South Dakota all passed laws with language virtually identical to the New York law. These state laws were consistent with the Fourteenth Amendment’s Naturalization Clause because these state laws denied citizenship to persons born subject to the claims of a foreign sovereign. This does not violate the Fourteenth Amendment and is consistent with jus sanguinis (“right of the blood”), on the theory citizenship passes from the citizenship status of the parents.
Naturalization Clause – Summary
The Citizenship Clause of the Fourteenth Amendment does not legitimately grant automatic birthright citizenship to children born in the United States to alien or illegal alien parents. The Supreme Court’s decision in United States v. Wong Kim Ark, like many others, was incorrect.
The power to determine citizenship and naturalization rules is vested in the states, but was also concurrently delegated to the federal Congress. The states have flexibility in creating their own citizenship laws. However, states cannot deny citizenship to anyone born in the United States who is not subject to citizenship claims by a foreign jurisdiction. In addition, Article 1, Section 8, grants Congress the power, “To establish a uniform rule of naturalization.” As such, the federal government and the states have concurrent power to legislate in this area. Thus, state law is effective so long as no federal provisions are inconsistent with state law. The Supremacy Clause makes federal naturalization law supreme to state law in the event federal and state naturalization law conflict. In the absence of any federal or state laws, English common law and the Jus soli would confer citizenship based on the place of a child’s birth, irrespective of the citizenship status of the child’s parents.
Whether children born to alien or illegal alien parents within the territorial jurisdiction of the United States should be granted birthright citizenship or not is a debatable question. However, it’s important to know the Citizenship Clause of the Fourteenth Amendment does not automatically grant this right.
United States Constitution – Fourteenth Amendment – Naturalization Clause
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.