[{"command":"add_css","data":[{"rel":"stylesheet","media":"all","href":"\/sites\/default\/files\/css\/css_veuEhhb1658wti0_ZAig66JOyixENU-N9zhjLQSLfOQ.css?delta=0\u0026language=en\u0026theme=heritage_theme\u0026include=eJwrTi1LzdNPzkksLq7Uy8tPSQUAPMsGtA"}]},{"command":"invoke","selector":null,"method":"openEssay","args":["10000166","\n\n\u003Carticle about=\u0022\/constitution\/amendments\/14\/essays\/167\/citizenship\u0022 class=\u0022node node--type-constitution-essay node--promoted node--view-mode-embedded clearfix\u0022\u003E\n  \u003Ch1 class=\u0022title\u0022\u003E\u003Cspan\u003ECitizenship\u003C\/span\u003E\n\u003C\/h1\u003E\n\n      \u003Cdiv class=\u0022con-location\u0022\u003E\n      Amendment XIV, Section 1\n    \u003C\/div\u003E\n    \u003Cdiv class=\u0022con-essay-context\u0022\u003E\n      \n            \u003Cdiv\u003E\u003Cp\u003EAll 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.\u003C\/p\u003E\n\u003C\/div\u003E\n      \n    \u003C\/div\u003E\n      \n  \u003Cdiv class=\u0022con-essay-body\u0022\u003E\n    \n            \u003Cdiv\u003E\u003Cp\u003EBefore the adoption of the Fourteenth Amendment, citizens of the states were automatically considered citizens of the United States. In 1857, the \u003Cem\u003EDred Scott v. Sandford\u003C\/em\u003E decision had held that no black of African descent (free or slave) could be a citizen of the United States. The Fourteenth Amendment was thus necessary to overturn \u003Cem\u003EDred Scott\u003C\/em\u003E 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 bar any black from United States citizenship or from state citizenship either. The primacy of federal citizenship thus extended \u201cthe privileges or immunities\u201d of United States citizenship to the newly freed slaves.\u003C\/p\u003E\n\n\u003Cp\u003EWhen first introduced, the Fourteenth Amendment stated, \u201cNo State shall make or enforce any law which shall abridge the privileges and immunities of citizens of the United States.\u201d Senator Benjamin Wade of Ohio suggested that a definition of United States citizenship was necessary and proposed that the first sentence of Section 1 should read, \u201cNo State shall make or enforce any law which shall abridge the privileges or immunities of persons born in the United States or naturalized by the laws thereof.\u201d The final version of section one that emerged from the Joint Committee on Reconstruction accepted Wade\u2019s suggestion but added the \u201cjurisdiction\u201d clause. Thus, there were two requirements for citizenship: born or naturalized in the United States\u003Cem\u003E and \u003C\/em\u003E\u201csubject to the jurisdiction\u201d of the United States.\u003C\/p\u003E\n\n\u003Cp\u003EToday, we understand the Citizenship Clause as if the Wade proposal had been accepted without the jurisdiction clause, and assume that everyone born within the territorial limits of the United States is automatically subject to the jurisdiction of the United States and thus automatically a citizen of the United States. This renders the \u201cjurisdiction\u201d requirement superfluous, despite a principle of construction that no interpretation can render any provision without force or effect. If the framers of the Fourteenth Amendment had intended that everyone born within the geographical limits of the United States were automatically subject to its jurisdiction, they would simply have omitted this phrase and accepted Wade\u2019s proposal without it.\u003C\/p\u003E\n\n\u003Cp\u003EHence the key question is what does it mean to be \u201csubject to the jurisdiction\u201d of the United States? Debate has focused on three groups of persons: Native Americans, children born in the United States of foreign diplomats, and children born in the United States of unnaturalized aliens.\u003C\/p\u003E\n\n\u003Cp\u003ESenator Jacob Howard of Michigan was a member of the Joint Committee on Reconstruction and a strong supporter of the Citizenship Clause. During Senate debate, he defended his handiwork against the charge that it would make Native Americans citizens of the United States.\u003C\/p\u003E\n\n\u003Cp\u003E\u201cIndians born within the limits of the United States, and who maintain their tribal relations,\u201d he assured a skeptical Senate on May 30, 1866, \u201care not, in the sense of this amendment, born subject to the jurisdiction of the United States.\u201d Senator Lyman Trumbull of Illinois, chairman of the Senate Judiciary Committee, supported Howard, contending that \u201csubject to the jurisdiction thereof\u201d meant \u201cnot owing allegiance to anybody else\u2009.\u2009.\u2009.\u2009subject to the complete jurisdiction of the United States.\u201d Indians, he concluded, were not \u201csubject to the jurisdiction\u201d of the United States because they owed allegiance\u2014even if only partial allegiance\u2014to their tribes.\u003C\/p\u003E\n\n\u003Cp\u003EThe United States has \u201ctreaties\u201d with various Indian tribes and the Supreme Court has treated Indians as having a unique constitutional status. The Court treated Indian tribes as \u201cdependent sovereigns\u201d within the United States, and \u201cdomestic dependent nations.\u201d \u003Cem\u003ECherokee Nation v. Georgia\u003C\/em\u003E (1831). \u201cTheir relations to the United States resemble that of a ward to his guardian.\u201d Hence, an Indian born in the United States who was a member of a recognized Indian tribe within the United States was not considered \u201csubject to the jurisdiction\u201d of the United States but to the jurisdiction of his tribe. \u003Cem\u003EElk v. Wilkins\u003C\/em\u003E (1884).\u003C\/p\u003E\n\n\u003Cp\u003EBeginning 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. The Indian Citizenship Act of 1924 granted full U.S. citizenship to American Indians. 8 U.S.C. \u00a7 1401(b).\u003C\/p\u003E\n\n\u003Cp\u003ESenator Howard also argued that the requirement of \u201cjurisdiction,\u201d understood in the sense of \u201callegiance,\u201d would not include certain types of aliens, that is, it will not \u201cinclude 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.\u201d Senator Howard\u2019s view regarding the children of foreign diplomats has been confirmed subsequently by the Supreme Court. Diplomatic immunity is only the other side of the coin that a foreign diplomat does not owe his allegiance to the United States.\u003C\/p\u003E\n\n\u003Cp\u003EThe most contested issue is the status of children born in the United States of aliens residing here. Commentators supporting the notion of \u201cbirth right citizenship\u201d for such persons point primarily to British practice, manifested in the common law, and supported by the Supreme Court in \u003Cem\u003EUnited States v. Wong Kim Ark \u003C\/em\u003E(1898).\u003C\/p\u003E\n\n\u003Cp\u003EBirthright citizenship had been the basis of British citizenship (i.e., being a British \u201csubject\u201d) ever since it was first articulated in \u003Cem\u003ECalvin\u2019s Case\u003C\/em\u003E in 1608. Sir William Blackstone, in his \u003Cem\u003ECommentaries on the Laws of England\u003C\/em\u003E (1765\u20131769), had argued that the idea of birthright citizenship was an inheritance from the \u201cfoedal system\u201d\u2014 it derives from the \u201cmutual trust or confidence subsisting between the lord and vassal.\u201d \u201cNatural allegiance,\u201d says Blackstone, is \u201cdue from all men born within the king\u2019s 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.\u2009.\u2009.\u2009. [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.\u201d\u003C\/p\u003E\n\n\u003Cp\u003EIn 1898, the Supreme Court in \u003Cem\u003EUnited States v. Wong Kim Ark\u003C\/em\u003E, Justice Horace Gray, writing for a five-to-four majority, agreed with Blackstone\u2019s view and held that a child born in the United States of alien parents of Chinese descent became, at the time of his birth, a citizen of the United States by virtue of Clause 1 of the Fourteenth Amendment. The alien parents were subjects of the emperor of China, but the parents had a permanent domicile and residence in the United States. They were carrying on business in the United States and were not employed in any diplomatic or official capacity under the emperor of China. Justice Gray conceded that children of an invading army would not become citizens, but the parents in \u003Cem\u003EWong Kim Ark\u003C\/em\u003E were not here illegally. (The United States did not have the complex immigration laws that we have today, with its concept of illegal or undocumented aliens.)\u003C\/p\u003E\n\n\u003Cp\u003ESubsequent courts have simply assumed that the any child born within the United States is automatically a U.S. citizen. \u003Cem\u003EE.g., INS v. Rios-Pineda\u003C\/em\u003E (1985), \u003Cem\u003Edicta\u003C\/em\u003E referring to the respondent and his wife, who illegally entered the U.S. By the time of his deportation, \u201crespondent wife had given birth to a child, who, born in the United States, was a citizen of this country.\u201d However, there is also no case where the Supreme Court has explicitly held that birthright citizenship for the children of\u003Cem\u003E illegal \u003C\/em\u003Ealiens is the unambiguous command of the Fourteenth Amendment. It is hard to conclude that the framers of the Fourteenth Amendment intended to confer citizenship on the children of aliens illegally present when they explicitly denied that boon to Native Americans legally present but subject to a foreign jurisdiction.\u003C\/p\u003E\n\n\u003Cp\u003ECommentators contesting the notion of automatic \u201cbirthright citizenship\u201d for children of aliens find highly significant Senator Howard\u2019s contention that \u201cevery 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.\u201d Most contemporary observers would have understood \u201cnatural law\u201d to refer to the social compact basis of citizenship, grounded in consent and adumbrated in the Declaration of Independence. Neither\u003Cem\u003E Calvin\u2019s Case\u003C\/em\u003E nor Blackstone ever used the word \u201ccitizen.\u201d It remained for the Declaration to transform subjects into citizens by the requirement that republican government rest on the active consent of the governed.\u003C\/p\u003E\n\n\u003Cp\u003EIn \u003Cem\u003EA Summary View of the Rights of British America\u003C\/em\u003E (1774), Thomas Jefferson argued that it was a natural right possessed by all men to leave the country where \u201cchance and not choice\u201d had placed them. The notion of a natural right to expatriation is incongruent with a scheme of an indefeasible birthright citizenship. In 1868, the Reconstruction Congress passed an Expatriation Act that provided, in pertinent part, that \u201cthe 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.\u201d 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\u2019s view of birthright citizenship as an \u201cindefensible feudal doctrine of indefeasible allegiance\u201d that was incompatible with republican government. One member remarked that \u201cthe old feudal doctrine stated by Blackstone and adopted as part of the common law of England\u2009.\u2009.\u2009.\u2009is not only at war with our institutions, but is equally at war with every principle of justice and of sound public law.\u201d By this argument, consent-based citizenship repudiated Blackstone\u2019s common law view.\u003C\/p\u003E\n\n\u003Cp\u003EMoreover, in \u003Cem\u003EElk v. Wilkins\u003C\/em\u003E, the Supreme Court decided that an Indian who had renounced allegiance to his tribe did not become \u201csubject to the jurisdiction\u201d of the United States by virtue of the renunciation. \u201cThe 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\u201d signified either by treaty or legislation. Neither the \u201cIndian Tribes\u201d nor \u201cindividual members of those Tribes,\u201d no more than \u201cother foreigners,\u201d can \u201cbecome citizens of their own will.\u201d In the frequently cited case of \u003Cem\u003EUnited States v. Wong Kim Ark\u003C\/em\u003E, Chief Justice Melville Fuller in dissent argued that birthright citizenship had been repealed by the principles of the American Revolution and rejected by the framers of the Fourteenth Amendment.\u003C\/p\u003E\n\n\u003Cp\u003EWhen Congress began extending offers of citizenship to various Indian tribes, it permitted any member of a specified tribe to 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. 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.\u003C\/p\u003E\n\u003C\/div\u003E\n      \n  \u003C\/div\u003E\n\n      \u003Cdiv class=\u0022con-essay-author\u0022\u003E\n      \u003Cdiv class=\u0022con-essay-author--media\u0022\u003E\n            \u003C\/div\u003E\n      \u003Cdiv class=\u0022con-essay-author--info\u0022\u003E\n              \u003Ch4 class=\u0022con-essay-author--name\u0022\u003E\n                      \u003Ca href=\u0022http:\/\/polisci.csusb.edu\/facultystaff\/index.htm\u0022\u003EEdward Erler\u003C\/a\u003E\n                  \u003C\/h4\u003E\n                  \u003Cdiv class=\u0022con-essay-author--job\u0022\u003E\n         Professor Emeritus, California State University, San Bernardino\n      \u003C\/div\u003E\n            \u003C\/div\u003E\n    \u003C\/div\u003E\n\n    \u003Cdiv class=\u0022con-essay-tabs\u0022\u003E\n      \u003Cul data-tabs class=\u0022tabs\u0022\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000166-taba\u0022\u003EFurther Reading\u003C\/a\u003E\u003C\/li\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000166-tabb\u0022\u003ECase Law\u003C\/a\u003E\u003C\/li\u003E\n        \u003Cli class=\u0022button-more thirds\u0022\u003E\u003Ca data-tab href=\u0022#node-10000166-tabc\u0022\u003ERelated Essays\u003C\/a\u003E\u003C\/li\u003E\n      \u003C\/ul\u003E\n\n      \u003Cdiv data-tabs-content\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000166-taba\u0022\u003E\n          \n      \u003Cdiv\u003E\n              \u003Cdiv\u003E\u003Cp\u003EEdward J. Erler, \u003Ci\u003EFrom Subjects to Citizens: The Social Contract Origins of American Citizenship, in \u003C\/i\u003EThomas G. West \u0026amp; Ronald J. Pestritto, eds., The American Founding and the Social Compact (2003)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EEdward J. Erler, \u003Ci\u003EImmigration and Citizenship, in\u003C\/i\u003E Gerald Frost ed., Loyalty Misplaced: Misdirected Virtue and Social Disintegration (1997)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003ERobert J. Kaczorowski, The Nationalization of Civil Rights (1987)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EJames H. Kettner, The Development of American Citizenship, 1608\u20131870 (1978)\u003C\/p\u003E\n\u003C\/div\u003E\n          \u003C\/div\u003E\n  \n        \u003C\/div\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000166-tabb\u0022\u003E\n          \n      \u003Cdiv\u003E\n              \u003Cdiv\u003E\u003Cp\u003ECalvin\u0027s Case, 77 Eng. Rep. 377 (1608)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003ECherokee Nation v. Georgia, 30 U.S. 1 (1831)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EDred Scott v. Sandford, 60 U.S. (19 How.) 393 (1857)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EElk v. Wilkins, 112 U.S. 94 (1884)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EUnited States v. Wong Kim Ark, 169 U.S. 649 (1898)\u003C\/p\u003E\n\u003C\/div\u003E\n              \u003Cdiv\u003E\u003Cp\u003EINS v. Rios-Pineda, 471 U.S. 444 (1985)\u003C\/p\u003E\n\u003C\/div\u003E\n          \u003C\/div\u003E\n  \n        \u003C\/div\u003E\n        \u003Cdiv data-tabs-pane class=\u0022tabs-pane\u0022 id=\u0022node-10000166-tabc\u0022\u003E\n                  \u003C\/div\u003E\n      \u003C\/div\u003E\n    \u003C\/div\u003E\n  \n\u003C\/article\u003E\n"]}]