Constitutional Law: Citizenship And Its Legal Boundaries

The Citizenship Clause of the Fourteenth Amendment to the United States Constitution, adopted on July 9, 1868, states that 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. This clause was added to address the Supreme Court's decision in Dred Scott v. Sandford, which denied citizenship to African Americans, and to establish a federal rule of race-blind citizenship based on birth or naturalization.

The Fourteenth Amendment's Citizenship Clause has been interpreted to mean that children born on US soil, with very few exceptions, are US citizens. This is known as jus soli or right of the territory. This right is not recognised in most of Europe, Asia, or the Middle East.

The Fourteenth Amendment does not provide a procedure for revoking US citizenship, but it is possible to lose citizenship through fraud in the naturalization process or voluntary relinquishment.

The Fourteenth Amendment

The Citizenship Clause

The Citizenship Clause, the first sentence of the Fourteenth Amendment, 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.

This clause reversed the Dred Scott v. Sandford decision, which had declared that African Americans were not and could not become citizens of the United States. The Fourteenth Amendment's Citizenship Clause was drafted to entrench the principle in the Constitution and prevent it from being struck down by the Supreme Court or repealed by a future Congress.

The Privileges or Immunities Clause

The Privileges or Immunities Clause protects the privileges and immunities of national citizenship from interference by the states. It was patterned after the Privileges and Immunities Clause of Article IV, which protects the privileges and immunities of state citizenship from interference by other states.

The Due Process Clause

The Due Process Clause prohibits state and local governments from depriving persons of life, liberty, or property without a fair procedure. The Supreme Court has ruled that this clause makes most of the Bill of Rights as applicable to the states as it is to the federal government.

The Equal Protection Clause

The Equal Protection Clause requires each state to provide equal protection under the law to all people, including non-citizens, within its jurisdiction. This clause has been the basis for many decisions rejecting discrimination against people belonging to various groups.

Birthright citizenship

In the United States, birthright citizenship is guaranteed by the Fourteenth Amendment to the Constitution, which 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.

This principle was confirmed by the 1898 Supreme Court case United States v. Wong Kim Ark, which clarified that children born in the U.S. to immigrant parents are citizens, regardless of their parents' immigration status.

The U.S. employs a combination of unrestricted birthplace-based citizenship and restricted ancestry-based citizenship. Globally, birthright citizenship is common in the Americas but less so in other regions.

There has been opposition to the application of birthright citizenship to children of undocumented immigrants, with some arguing that citizenship is not guaranteed by the Fourteenth Amendment in these cases. However, this interpretation has never been endorsed by federal courts.

In recent years, there have been legislative attempts to alter how birthright citizenship is awarded, with bills introduced in Congress seeking to declare that American-born children of foreign nationals are not "subject to the jurisdiction of the United States" and thus not entitled to citizenship via the Fourteenth Amendment.

Naturalization

History

The Naturalization Act of 1790 provided the first rules to be followed by the United States in granting national citizenship. The law did not prevent women from having their own citizenship, but recognized only the authority of a husband if a woman was married. The Naturalization Act of 1804 confirmed that married women's access to citizenship was tied to their state of marriage.

Eligibility

Eligibility for naturalization may turn upon the decision of the responsible officials as to whether the petitioner is of "good moral character". The immigration and nationality laws include specific congressional determinations that certain persons do not possess "good moral character", including "habitual drunkards", adulterers, polygamists or advocates of polygamy, gamblers, convicted felons, and homosexuals.

The Process

The process of naturalization culminates in the taking of an oath to support the Constitution of the United States, renounce any foreign allegiance, defend the Constitution and laws of the United States, and perform work of national importance when required by law.

Rights of Naturalized Persons

Citizenship obtained through naturalization is not second-class citizenship and carries with it the privilege of full participation in the affairs of American society, including the right to speak freely, criticize officials, and promote changes in laws. However, naturalized citizens are subject to requirements not imposed on native-born citizens, such as having their good faith in taking the oath of allegiance inquired into, and losing their citizenship if lack of such faith is shown.

Expatriation

Expatriation is the voluntary renunciation or abandonment of nationality and allegiance. While the Court has insisted on the voluntary character of the renunciation, it has sustained the power of Congress to prescribe conditions under which certain actions constitute renunciation.

The Civil Rights Act of 1866

The Act was passed shortly after the ratification of the Thirteenth Amendment in December 1865, which abolished slavery. It was the first time Congress legislated upon civil rights, and it was done so with near-unanimous Republican support, overriding President Andrew Johnson's veto.

The Act also made it a misdemeanour to deprive any inhabitant of any state or territory of the rights outlined in the Act, on account of their previous condition of slavery or their colour or race. This was enforced by the district courts of the US, who had jurisdiction over all crimes and offences committed against the provisions of the Act.

The Expatriation Act of 1868

The Act was passed one day before the Fourteenth Amendment, which introduced the principle of birthright citizenship into the Constitution. The Expatriation Act of 1868 was thus an assertion of the right of US citizens to renounce their citizenship, and the Fourteenth Amendment was an assertion of the right of certain people to become citizens.

The Act did not specify the circumstances in which an individual would be considered to have expatriated themselves, or address the government's authority to remove citizenship on the grounds of expatriation. However, it did provide protections to foreign nationals who had relinquished their native citizenship to become US citizens, and who were detained by their former governments.

Frequently asked questions