The Fourteenth Amendment's Citizenship Clause

Following the conclusion of the Civil War, the nation faced the challenge of reconstruction. The Southern states' attempt to secede from the Union had failed, and the Emancipation Proclamation had transformed their societal structure.

With the abolition of slavery, the legal status of four million formerly enslaved individuals was immediately altered. The nation was in a distinct new place without a framework to guide it forward. We refer to this period of American history as the Reconstruction Era. 

During this time, Congress had several tasks to unify the nation.  One of their main tasks was articulating the legal rights of the formerly enslaved population, particularly in the South. They needed to ensure that this population enjoyed equal protection of the laws. The power dynamics between the formerly enslaved and their former owners did not change overnight. 

President Lincoln issued the Emancipation Proclamation during the war under his war powers, but that was insufficient to change the legal status of the formerly enslaved. The federal government had to step in to intervene.

An earlier U. S. Supreme Court decision, Dred Scott v. Sandford, held that enslaved persons descended from Africans were not American citizens. Congress also had to address the pervasive racial discrimination that the formerly enslaved faced. They tried with the Civil Rights Act of 1866, but this was insufficient to address all the issues that faced this population. Numerous state governments in the South exhibited hostility towards the concept of equality, enacting legislation that aimed to curtail the rights of formerly enslaved individuals.

Finally, Congress had to address the rights of these new citizens. The ratification of the Fourteenth Amendment helped them accomplish these goals and more.

The Fourteenth Amendment is a sweeping amendment that has shaped American life since Reconstruction. As a result of the Fourteenth Amendment, we achieved desegregation in public schools (Brown v. Board of Education) and marriage equality (Obergefell v. Hodges).

This amendment contains several clauses that each deal with a separate issue, such as due process of law. These clauses include the following:

• Citizenship Clause
• Privileges and Immunities Clause
• Due Process Clause
• Equal Protection Clause
• Apportionment Clause
• Disqualification Clause
• Enforcement Clause

This FindLaw article focuses on the citizenship clause of the Fourteenth Amendment of the U.S. Constitution.

The Citizenship Clause

The citizenship clause established birthright citizenship in the United States. You can find the citizenship clause in Section 1 (first sentence) of the Fourteenth Amendment. It reads as follows:

"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..."

The text of this clause is straightforward.  It deals with two types of citizenship: birthright citizenship and citizenship by naturalization. In the United States of America, we acquire birthright citizenship in one of two ways:

• Through birth on American "soil" (this includes U.S. Territories, like the U.S. Virgin Islands and Guam)
• If one or both of our parents were American citizens when we were born (so if you were born in Italy to an American mother)

Citizenship by naturalization occurs when a non-citizen acquires U.S. citizenship after birth.  In the U.S., you can acquire citizenship by naturalization once you meet the requirements of the Immigration and Nationality Act.  Birthright citizenship is not applicable in all circumstances.  For example, children born in the U.S. to diplomats cannot claim birthright citizenship.

Although the clause mentions state citizenship, it does not define it. 

Native American Citizenship

Notably, the citizenship clause excluded Native Americans. At that time, they were usually members of sovereign tribal nations and, therefore, not subject to the jurisdiction of the United States.

That changed with the Indian Citizenship Act of 1924, through which the federal government granted Native Americans full citizenship rights.

Overturning Dred Scott

Through this clause, Congress overturned the Dred Scott decision and guaranteed citizenship rights for the formerly enslaved. 

Supreme Court Interpretation

Although the text of the Citizenship Clause is clear, as was Congress' intent, issues of birthright citizenship came before the Supreme Court for final clarity. These Supreme Court cases help us understand birthright citizenship today. 

Elk v. Wilkins

Elk v. Wilkins established (for a time) that Native Americans could not claim birthright citizenship. In this case, John Elk, a Native American, was born on a Native American reservation in the United States.  In 1880, he attempted to register to vote in Omaha, Nebraska; the registrar declined his application because he was not a U.S. citizen. 

Although Elk had "severed" his tribal citizenship and claimed U.S. citizenship, the Supreme Court determined he was not a citizen. 

The Court noted that Native American tribes were "alien nations," and as such, the members of these tribes owed their loyalty to their tribe and not the United States.  Therefore, they were not "subject" to the jurisdiction of the United States. 

But, as noted above, Congress granted Native Americans citizenship with the Indian Citizenship Act of 1924.

United States v. Wong Kim Ark

The Supreme Court had to provide some judicial review and finality to the issue of birthright citizenship in 1898. In United States v. Wong Kim Ark, the Supreme Court held that the Fourteenth Amendment grants citizenship to all persons born in the country without regard to race or nationality. 

In this case, the respondent, Wong Kim Ark, was born in 1873 in the U.S. to Chinese parents who were lawful permanent residents. 

Under the Naturalization Act of 1802, Wong's parents could not become naturalized citizens because they were not white.  Moreover, in 1882, Congress passed the Chinese Exclusion Act, which banned almost all Chinese immigration for ten years.  In 1895, despite being born in the U.S., Wong was denied entry to the country after a visit to China. 

Interestingly, the Court only considered the narrow question of whether a child born to Chinese parents on U.S. soil is a U.S. citizen. Discrimination in immigration persisted until the Immigration and Nationality Act passed Congress in 1965.

Affroyim v. Rusk

Finally, the Supreme Court has also ruled that Congress has no power to strip a U.S. citizen of their citizenship. In Affroyim v. Rusk, the Court determined that the Nationality Act of 1940 was unconstitutional.

Under the Nationality Act of 1940, U.S. citizens who vote in a foreign election lose their citizenship. In this case, the petitioner was a naturalized citizen of Polish descent. In 1951, while living in Israel, he voted in an Israeli election. In 1960, the State Department refused to renew his passport because he lost his citizenship in 1951 when he voted in the Israeli election.

The Court acknowledged that Congress did not have the power under the Constitution to strip away citizenship. It held that the Fourteenth Amendment was designed to protect citizens from any “congressional forcible destruction” of their citizenship.

Birthright Citizenship Controversies

Although birthright citizenship is well-settled in the United States, over the past few decades, it has led to some controversy in our immigration system. Like most other children born in the U.S., children born to tourists and undocumented immigrant parents automatically gain citizenship.

Some people take issue with this. They believe that this goes against the original intent of the Fourteenth Amendment. They reason that the purpose of the Fourteenth Amendment was solely to give citizenship to the formerly enslaved African Americans. This argument also relies on the "jurisdiction test" of the citizenship clause. 

Under this point of view, undocumented immigrants and tourists are not subject to the jurisdiction of the United States.  Instead, they owe their allegiance to their country of origin, and therefore, their children should not receive birthright citizenship. Those with this point of viewpoint to both Elk and Wong Ark Kim to support their positions.

They note that with Elk, Native Americans did not gain U.S. citizenship until Congress passed the Indian Citizenship Act, affirmatively extending citizenship to Native Americans. Under this theory, Congress did not need to pass this law if birthright citizenship applied to everyone, like Native Americans born in the U.S.  Similarly, Wong Ark Kim relies on the fact that Wong's parents were lawful permanent residents compared to undocumented immigrants today. 

Based on the foregoing, they argue there is no constitutional right to automatic citizenship and that birthright citizenship should not apply to children born to noncitizens. Despite this controversy, however, birthright citizenship is here to stay.