The Citizenship Conundrum: Law And Constitution

The topic of citizenship is addressed in the Fourteenth Amendment to the United States Constitution, which was adopted on July 9, 1868. The Citizenship Clause, which is the first sentence of the Fourteenth Amendment, 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 repudiate 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 thus guarantees birthright citizenship to most people born within U.S. territory, with some exceptions, such as children of foreign diplomats and those born in American Samoa. While there have been debates and attempts to restrict birthright citizenship, it remains a constitutional right in the United States.

Birthright citizenship

> 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 Fourteenth Amendment overrides the 1857 Supreme Court decision in Dred Scott v. Sandford, which denied U.S. citizenship to African Americans, whether they were born in the country or not, and whether they were enslaved or free.

The Fourteenth Amendment was adopted on July 9, 1868, and since then, the citizenship of persons born in the United States has been controlled by its Citizenship Clause. The Amendment introduced two exceptions to birthright citizenship: it does not apply to children of foreign diplomats or to Native Americans living under tribal sovereignty.

There have been several attempts to alter or end birthright citizenship. In 2020, the Trump administration adopted a policy to make it more difficult for pregnant foreign women to enter the U.S. if it was suspected that they intended to give birth on U.S. soil. In 2021, the Birthright Citizenship Act was introduced, aiming to limit birthright citizenship by redefining what it means to be subject to the jurisdiction of the United States. However, these efforts face steep legal hurdles, as birthright citizenship is protected by the Fourteenth Amendment.

Naturalization

The Fourteenth Amendment to the United States Constitution, adopted in 1868, addresses citizenship and naturalization. The Citizenship Clause 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 denied citizenship to African Americans. The Fourteenth Amendment overrode various state and federal laws and court decisions that came before it, entrenching the principle of citizenship in the Constitution.

The Naturalization Clause in Article I, Section 8, Clause 4 of the Constitution grants Congress the power to establish uniform rules for naturalization. Congress first exercised this power with the Naturalization Act of 1790, which allowed any free white person who resided within the United States for at least two years and showed good character to become a citizen. The Act also granted citizenship to the children of naturalized citizens under 21, residing in the United States.

Over time, Congress has continued to establish naturalization policies, often with varying conditions and restrictions. For example, in 1802, Congress restored the five-year residence requirement and a three-year declaration of intent period. In 1855, naturalization was extended to wives of U.S. citizens, and in 1870, eligibility was expanded to include aliens of African nativity and persons of African descent.

Today, lawful permanent residents of the United States can generally apply for citizenship after five years of residency, or three years if they are married to a U.S. citizen. The process involves demonstrating good moral character, knowledge of the English language, U.S. history and government, and a commitment to the principles of the U.S. Constitution. Applicants must also be at least 18 years old and have resided in the state or district where they apply for at least three months.

The Fourteenth Amendment

The Citizenship Clause

The Citizenship Clause 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 reversed the Dred Scott v. Sandford decision, which had declared that African Americans were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship. The Citizenship Clause has been interpreted to mean that children born on United States soil, with very few exceptions, are U.S. citizens.

The Privileges or Immunities Clause

The Privileges or Immunities Clause protects the privileges and immunities of national citizenship from interference by the states. It has been interpreted to prohibit states from interfering with privileges and immunities possessed by virtue of national citizenship, such as access to seaports and navigable waterways, the right to run for federal office, and the right to peaceably assemble and petition the government.

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. It has been interpreted to make most of the Bill of Rights applicable to the states as well as 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.

Other Sections of the Fourteenth Amendment

The second, third, and fourth sections of the amendment are seldom litigated. The second section penalises states that withhold the franchise from adult male citizens for any reason other than participation in crime. The third section disqualifies certain people from holding public office, such as those who have engaged in insurrection or rebellion against the United States. The fourth section confirms the legitimacy of all public debt appropriated by Congress and states that neither the United States nor any state shall pay for the loss of slaves or debts incurred by the Confederacy. The fifth section gives Congress the power to enforce the amendment's provisions by "appropriate legislation".

The Civil Rights Act of 1866

The Act established that "all persons born in the United States" (except for Indigenous groups) were citizens of the United States and were entitled to the same rights as white citizens. This included the right to make and enforce contracts, sue and be sued, give evidence in court, and inherit, purchase, lease, sell, hold, and convey real and personal property. It also made it illegal to deny any person the rights of citizenship on the basis of their race or colour.

The Act was initially vetoed by President Andrew Johnson, who was antagonistic to the claims of equality of African Americans and inflexible in his belief that market forces would eventually resolve the issue. However, Congress overrode Johnson's veto, marking the first time that a presidential veto for a major piece of legislation had been overridden by Congress.

Despite being a significant step towards racial equality, the Civil Rights Act of 1866 had its limitations. It did not address political or social rights, such as the right to vote or hold public office, and it failed to ensure equal access to public accommodations. Additionally, the Act did not provide federal penalties for violations, leaving it up to individual victims to seek legal relief.

The Dred Scott case

Dred Scott was born into slavery around 1799 in Southampton County, Virginia. In 1818, he moved with his owner Peter Blow to Alabama, then in 1830 he moved to St. Louis, Missouri—both slave states—where Peter ran a boarding house. After Blow died in 1832, army surgeon Dr. John Emerson purchased Scott and eventually took him to Illinois, a free state, and then to Fort Snelling in Wisconsin Territory where the Missouri Compromise had outlawed slavery. There, Scott married Harriet Robinson, also enslaved, in a rare civil ceremony; her owner transferred ownership of Harriet to Emerson.

In late 1837, Emerson returned to St. Louis but left Dred and Harriet Scott behind and hired them out. Emerson then moved to Louisiana, a slave state, where he met and married Eliza (Irene) Sandford in February 1838; Dred Scott soon joined them.

In April 1846, Dred and Harriet filed separate lawsuits for freedom in the St. Louis Circuit Court against Irene Emerson based on two Missouri statutes. One statute allowed any person of any color to sue for wrongful enslavement. The other stated that any person taken to a free territory automatically became free and could not be re-enslaved upon returning to a slave state.

The Scotts went to trial again in January 1850 and won their freedom. Irene appealed the case to the Missouri Supreme Court which combined Dred and Harriet’s cases and reversed the lower court’s decision in 1852, making Dred Scott and his family enslaved again.

In November 1853, Scott filed a federal lawsuit with the United States Circuit Court for the District of Missouri. By this time, Irene had transferred Scott and his family to her brother, John Sandford (although it was determined later that she retained ownership). On May 15, 1854, the federal court heard Dred Scott v. Sandford and ruled against Scott, holding him and his family in slavery.

In December 1854, Scott appealed his case to the United States Supreme Court. The trial began on February 11, 1856. By this time, the case had gained notoriety and Scott received support from many abolitionists, including powerful politicians and high-profile attorneys. But on March 6, 1857, in the infamous Dred Scott decision, Scott lost his fight for freedom again.

Chief Justice Roger Taney

Roger Taney was born into the southern aristocracy and became the fifth Chief Justice of the United States Supreme Court.

Taney became best known for writing the final majority opinion in Dred Scott v. Sandford, which said that all people of African descent, free or enslaved, were not United States citizens and therefore had no right to sue in federal court. In addition, he wrote that the Fifth Amendment protected slave owner rights because enslaved workers were their legal property.

The decision also argued that the Missouri Compromise legislation — passed to balance the power between slave and non-slave states — was unconstitutional. In effect, this meant that Congress had no power to prevent the spread of slavery.

Despite Taney’s long tenure as a Supreme Court justice, people vilified him for his role in the Dred Scott v. Sandford decision. In an ironic historical footnote, Taney would later swear in Abraham Lincoln, the "Great Emancipator," as president of the United States in 1861.

The Dred Scott decision outraged abolitionists, who saw the Supreme Court’s ruling as a way to stop debate about slavery in the territories. The divide between North and South over slavery grew and culminated in the secession of southern states from the Union and the creation of the Confederate States of America. The Emancipation Proclamation of September 22, 1862 freed enslaved people living in the Confederacy, but it would be another three years until Congress passed the 13th Amendment abolishing slavery in the United States.

Frequently asked questions