Annotation 1 - Fourteenth Amendment


In the Dred Scott Case, 1 Chief Justice Taney for the Court ruled that United States citizenship was enjoyed by two classes of individuals: (1) white persons born in the United States as descendents of ''persons, who were at the time of the adoption of the Constitution recognized as citizens in the several States and [who] became also citizens of this new political body,'' the United States of America, and (2) those who, having been ''born outside the dominions of the United States,'' had migrated thereto and been naturalized therein. The States were competent, he continued, to confer state citizenship upon anyone in their midst, but they could not make the recipient of such status a citizen of the United States. The ''Negro,'' or ''African race,'' according to the Chief Justice, was ineligible to attain United States citizenship, either from a State or by virtue of birth in the United States, even as a free man descended from a Negro residing as a free man in one of the States at the date of ratification of the Constitution. 2 Congress, first in Sec. 1 of the Civil Rights Act of 1866 3 and then in the first sentence of Sec. 1 of the Fourteenth Amendment, 4 set aside the Dred Scott holding in a sentence ''declaratory of existing rights, and affirmative of existing law. . . .'' 5  

While clearly establishing a national rule on national citizenship and settling a controversy of long standing with regard to the derivation of national citizenship, the Fourteenth Amendment did not obliterate the distinction between national and state citizenship, but rather preserved it. 6 The Court has accorded the first sentence of Sec. 1 a construction in accordance with the congressional intentions, holding that a child born in the United States of Chinese parents who themselves were ineligible to be naturalized is nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship. 7 Congress' intent in including the qualifying phrase ''and subject to the jurisdiction thereof,'' was apparently to exclude from the reach of the language children born of diplomatic representatives of a foreign state and children born of alien enemies in hostile occupation, both recognized exceptions to the common-law rule of acquired citizenship by birth, 8 as well as children of members of Indian tribes subject to tribal laws. 9 The lower courts have generally held that the citizenship of the parents determines the citizenship of children born on vessels in United States territorial waters or on the high seas. 10  

In Afroyim v. Rusk, 11 a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew from the Government of the United States the power to expatriate United States citizens against their will for any reason. ''[T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit. It is true that the chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes. . . . This undeniable purpose of the Fourteenth Amendment to make citizenship of Negroes permanent and secure would be frustrated by holding that the Government can rob a citizen of his citizenship without his consent by simply proceeding to act under an implied general power to regulate foreign affairs or some other power generally granted.'' 12 In a subsequent decision, however, the Court held that persons who were statutorily naturalized by being born abroad of at least one American parent could not claim the protection of the first sentence of Sec. 1 and that Congress could therefore impose a reasonable and non-arbitrary condition subsequent upon their continued retention of United States citizenship. 13 Between these two decisions there is a tension which should call forth further litigation efforts to explore the meaning of the citizenship sentence of the Fourteenth Amendment.

Citizens of the United States within the meaning of this Amendment must be natural and not artificial persons; a corporate body is not a citizen of the United States. 14  


[Footnote 1] Scott v. Sandford, 60 U.S. (19 How.) 393, 404 -06, 417-18, 419-20 (1857).

[Footnote 2] The controversy, political as well as constitutional, which this case stirred and still stirs, is exemplified and analyzed in the material collected in S. Kutler, The Dred Scott Decision: Law or Politics? (1967).

[Footnote 3] ''That 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; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude . . . shall have the same right[s]. . . .'' Ch. 31, 14 Stat. 27.

[Footnote 4] The proposed amendment as it passed the House contained no such provision, and it was decided in the Senate to include language like that finally adopted. Cong. Globe, 39th Cong., 1st Sess. 2560, 2768-69, 2869 (1866). The sponsor of the language said: ''This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is . . . a citizen of the United States.'' Id. at 2890. The legislative history is discussed at some length in Afroyim v. Rusk, 387 U.S. 253, 282 -86 (1967) (Justice Harlan dissenting).

[Footnote 5] United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898).

[Footnote 6] Slaughter-House Cases, 83 U.S. (16 Wall.) 36, 74 (1873).

[Footnote 7] United States v. Wong Kim Ark, 169 U.S. 649 (1898).

[Footnote 8] Id. at 682.

[Footnote 9] Id. at 680-82; Elk v. Wilkins, 112 U.S. 94, 99 (1884).

[Footnote 10] United States v. Gordon, 25 Fed. Cas. 1364 (C.C.S.D.N.Y. 1861) (No. 15,231); In re Look Tin Sing, 21 F. 905 (C.C.Cal. 1884); Lam Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928).

[Footnote 11]   387 U.S. 253 (1967). Though the Court upheld the involuntary expatriation of a woman citizen of the United States during her marriage to a foreign citizen in Mackenzie v. Hare, 239 U.S. 299 (1915), the subject first received extended judicial treatment in Perez v. Brownell, 356 U.S. 44 (1958), in which by a five-to-four decision the Court upheld a statute denaturalizing a native-born citizen for having voted in a foreign election. For the Court, Justice Frankfurter reasoned that Congress' power to regulate foreign affairs carried with it the authority to sever the relationship of this country with one of its citizens to avoid national implication in acts of that citizen which might embarrass relations with a foreign nation. Id. at 60-62. Three of the dissenters denied that Congress had any power to denaturalize. See discussion supra pp. 272-76. In the years before Afroyim, a series of decisions had curbed congressional power.

[Footnote 12] Afroyim v. Rusk, 387 U.S. 253, 262 -63 (1967). Four dissenters, Justices Harlan, Clark, Stewart, and White, controverted the Court's reliance on the history and meaning of the Fourteenth Amendment and reasserted Justice Frankfurter's previous reasoning in Perez. Id. at 268.

[Footnote 13] Rogers v. Bellei, 401 U.S. 815 (1971). This, too, was a five-to-four decision, Justices Blackmun, Harlan, Stewart, and White, and Chief Justice Burger in the majority, and Justices Black, Douglas, Brennan, and Marshall dissenting.

[Footnote 14] Insurance Co. v. New Orleans, 13 Fed. Cas. 67 (C.C.D.La. 1870). Not being citizens of the United States, corporations accordingly have been declared unable ''to claim the protection of that clause of the Fourteenth Amendment which secures the privileges and immunities of citizens of the United States against abridgment or impairment by the law of a State.'' Orient Ins. Co. v. Daggs, 172 U.S. 557, 561 (1869). This conclusion was in harmony with the earlier holding in Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869), to the effect that corporations were not within the scope of the privileges and immunities clause of state citizenship set out in Article IV, Sec. 2. See also Selover, Bates & Co. v. Walsh, 226 U.S. 112, 126 (1912); Berea College v. Kentucky, 211 U.S. 45 (1908); Liberty Warehouse Co. v. Tobacco Growers, 276 U.S. 71, 89 (1928); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936).

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