The following is an entry
concerning the first section of Amendment 14 of the Constitution as
found in The Heritage Guide to the
Before the adoption of the Fourteenth Amendment, citizens of the
states were automatically considered citizens of the United States.
In 1857, the Dred Scott v. Sanford decision had held that no black
of African descent (even a freed black) could be a citizen of the
United States. The Fourteenth Amendment was thus necessary to
overturn Dred Scott and to settle the question of the citizenship
of the newly freed slaves. The Fourteenth Amendment made United
States citizenship primary and state citizenship derivative. The
primacy of federal citizenship made it impossible for states to
prevent former slaves from becoming United States citizens by
withholding state citizenship. States could no longer prevent any
black from United States citizenship or from state citizenship
The Civil rights Act of 1866 had previously asserted 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." The immediate impetus for the
Fourteenth Amendment was to constitutionalize and validate the
Civil rights Act because some had questioned whether the Thirteenth
Amendment was a sufficient basis for its constitutionality. A
constitutional amendment would also have the advantage of
preventing a later unfriendly Congress from repealing it.
One conspicuous departure from the language of the Civil rights Act
was the elimination of the phrase "Indians not taxed." Senator
Jacob Howard of Ohio, the author of the citizenship Clause,
defended the new language against the charge that it would make
Indians citizens of the United States. Howard assured skeptics that
"Indians born within the limits of the United States, and who
maintain their tribal relations, are not, in the sense of this
amendment, born subject to the jurisdiction of the United States."
Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee,
supported Howard, contending that "subject to the jurisdiction
thereof" meant "not owing allegiance to anybody else . . . subject
to the complete jurisdiction of the United States." Indians, he
concluded, were not "subject to the jurisdiction" of the United
States because they owed allegiance-even if only partial
allegiance-to their tribes. Thus, two requirements were set for
United States citizenship: born or naturalized in the United States
and subject to its jurisdiction.
By itself, birth within the territorial limits of the United
States, as the case of the Indians indicated, did not make one
automatically "subject to the jurisdiction" of the United States.
And "jurisdiction" did not mean simply subject to the laws of the
United States or subject to the jurisdiction of its courts. Rather,
"jurisdiction" meant exclusive "allegiance" to the United States.
Not all who were subject to the laws owed allegiance to the United
States. As Senator Howard remarked, the requirement of
"jurisdiction," understood in the sense of "allegiance," "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
Most revealing, however, was Senator Howard's contention that
"every 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." Almost everyone
certainly would have understood "natural law" to refer to the
social compact basis of citizenship, the basis for citizenship
adumbrated in the Declaration of Independence.
The argument of the Declaration grounded citizenship in consent.
The natural law argument of the Declaration was a repudiation of
the notion of birthright citizenship that had been the basis of
British citizenship (i.e., being a British "subject") ever since it
was first articulated in Calvin's Case in 1608. Sir William
Blackstone, in his Commentaries on the Laws of England, had argued
that the idea of birthright citizenship was an inheritance from the
"foedal system"-it derives from the "mutual trust or confidence
subsisting between the lord and vassal." "Natural allegiance," says
Blackstone, is "due from all men born within the king's dominion
immediately upon their birth. [It] is a debt of gratitude which
cannot be forfeited, cancelled, or altered, by any change of time,
place or circumstance. . . . [T]he natural-born subject of one
prince cannot by any act of his own, no, not by swearing allegiance
to another put off or discharge his natural allegiance."
In the Summary View of the rights of British America (1774), Thomas
Jefferson argued that it was a natural right possessed by all men
to leave the country where "chance and not choice" had placed them.
The notion of a natural right to expatriation has no place in the
scheme of an indefeasible birthright citizenship. Furthermore, the
natural right to revolution is the perfect antithesis of "perpetual
allegiance." In 1868, the Reconstruction Congress passed an
Expatriation Act. The act provided, in pertinent part, that "the
right of expatriation is a natural and inherent right of all
people, indispensable to the enjoyment of the rights of life,
liberty, and the pursuit of happiness." Senator Howard was an
enthusiastic supporter of the bill, describing the right of
expatriation as the necessary counterpart of citizenship based on
consent. During debate, commentators frequently described
Blackstone's view of birthright citizenship as an "indefensible
feudal doctrine of indefeasible allegiance" that was incompatible
with republican government.
In Elk v. Wilkins (1884), the Supreme Court decided that a native
Indian who had renounced allegiance to his tribe did not become
"subject to the jurisdiction" of the United States by virtue of the
renunciation. "The alien and dependent condition of the members of
the Indian Tribes could not be put off at their own will, without
the action or assent of the United States" signified either by
treaty or legislation. Neither the "Indian Tribes" nor "individual
members of those Tribes," no more than "other foreigners" can
"become citizens of their own will."
Beginning in 1870 Congress began extending offers of citizenship to
various Indian tribes. Any member of a specified tribe could become
an American citizen if he so desired. Congress thus demonstrated
that, using its Section 5 powers to enforce the provisions of the
Fourteenth Amendment, it could define who was properly within the
jurisdiction of the United States.
In 1898, the Supreme Court in United States v. Wong Kim Ark
declared that the Fourteenth Amendment adopted the common-law
definition of birthright citizenship. Chief Justice Melville W.
Fuller's dissenting opinion, however, argued that birthright
citizenship had been repealed by the principles of the American
Revolution and rejected by the framers of the Fourteenth Amendment.
Nonetheless, the decision conferred birthright citizenship on a
child of legal residents of the United States. Although the
language of the majority opinion in Wong Kim Ark is certainly broad
enough to include the children born in the United States of illegal
as well as legal immigrants, there is no case in which the Supreme
Court has explicitly held that this is the unambiguous command of
the Fourteenth Amendment.
Based on the intent of the framers of the Fourteenth Amendment,
some believe that Congress could exercise its Section 5 powers to
prevent the children of illegal aliens from automatically becoming
citizens of the United States. An effort in 1997 failed in the face
of intense political opposition from immigrant rights groups.
Apparently, the question remains open to the determination of the
political and legal processes.
Edward Erler is
Professor of Political Science at California State University, San