Citizenship

Section 1 of the amendment formally defines United States citizenship

The Citizenship Clause was authored by Jacob M. Howard the U.S. Senator from Michigan and overruled the Supreme Court's Dred Scott decision that black people were not citizens and could not become citizens, nor enjoy the benefits of citizenship.[38][39] Some members of Congress voted for the Fourteenth Amendment in order to eliminate doubts about the constitutionality of the Civil Rights Act of 1866,[40] or to ensure that no subsequent Congress could later repeal or alter the main provisions of that Act.[41] The Civil Rights Act of 1866 had granted citizenship to all people born in the United States if they were not subject to a foreign power, and this clause of the Fourteenth Amendment constitutionalized this rule.

There are varying interpretations of the original intent of Congress and of the ratifying states, based on statements made during the congressional debate over the amendment, as well as the customs and understandings prevalent at that time.[42][43] Some of the major issues that have arisen about this clause are the extent to which it included Native Americans, its coverage of non-citizens legally present in the United States when they have a child, whether the clause allows revocation of citizenship, and whether the clause applies to illegal immigrants.[44]

Historian Eric Foner, who has explored the question of U.S. birthright citizenship to other countries, argues that:

Many things claimed as uniquely American—a devotion to individual freedom, for example, or social opportunity—exist in other countries. But birthright citizenship does make the United States (along with Canada) unique in the developed world. [...] Birthright citizenship is one expression of the commitment to equality and the expansion of national consciousness that marked Reconstruction. [...] Birthright citizenship is one legacy of the titanic struggle of the Reconstruction era to create a genuine democracy grounded in the principle of equality.[45]

NATIVE AMERICANS

During the original congressional debate over the amendment Senator Jacob M. Howard of Michigan—the author of the Citizenship Clause[46]—described the clause as having the same content, despite different wording, as the earlier Civil Rights Act of1866, namely, that it excludes Native Americans who maintain their tribal ties and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers".[47] According to historian Glenn W. LaFantasie of Western Kentucky University, "A good number of his fellow senators supported his view of the citizenship clause."[46] Others also agreed that the children of ambassadors and foreign ministers were to be excluded.[48][49]

Senator James Rood Doolittle of Wisconsin asserted that all Native Americans were subject to United States jurisdiction, so that the phrase "Indians not taxed" would be preferable,[50] but Senate Judiciary Committee Chairman Lyman Trumbull and Howard disputed this, arguing that the federal government did not have full jurisdiction over Native American tribes, which govern themselves and make treaties with the United States.[51][52] In Elk v. Wilkins (1884),[53] the clause's meaning was tested regarding whether birth in the United States automatically extended national citizenship. The Supreme Court held that Native Americans who voluntarily quit their tribes did not automatically gain national citizenship.[54] The issue was resolved with the passage of the Indian Citizenship Act of 1924, which granted full U.S. citizenship to indigenous peoples.[55]

CHILDREN BORN TO FOREIGN NATIONALS

The Fourteenth Amendment provides that children born in the United States and subject to its jurisdiction become American citizens at birth. At the time of the amendment's passage, President Andrew Johnson and three senators, including Trumbull, the author of the Civil Rights Act, asserted that both the Civil Rights Act[56][57] and the Fourteenth Amendment would confer citizenship to children born to foreign nationals in the United States.[58][59] Senator Edgar Cowan of Pennsylvania had a decidedly different opinion.[60] Some scholars dispute whether the Citizenship Clause should apply to the children of unauthorized immigrants today, as "the problem ... did not exist at the time".[61] In the 21st century, Congress has occasionally discussed passing a statute or a constitutional amendment to reduce the practice of "birth tourism", in which a foreign national gives birth in the United States to gain the child's citizenship.[62]

The clause's meaning with regard to a child of immigrants was tested in United States v. Wong Kim Ark (1898).[63] The Supreme Court held that under the Fourteenth Amendment, a man born within the United States to Chinese citizens who have a permanent domicile and residence in the United States and are carrying out business in the United States—and whose parents were not employed in a diplomatic or other official capacity by a foreign power—was a citizen of the United States. Subsequent decisions have applied the principle to the children of foreign nationals of non-Chinese descent.[64]

According to the Foreign Affairs Manual, which is published by the State Department, "Despite widespread popular belief, U.S. military installations abroad and U.S. diplomatic or consular facilities abroad are not part of the United States within the meaning of the [Fourteenth]Amendment."[65]

LOSS OF CITIZENSHIP

Loss of national citizenship is possible only under the following circumstances:

• Fraud in the naturalization process. Technically, this is not a loss of citizenship but rather a voiding of the purported naturalization and a declaration that the immigrant never was a citizen of the United States.[66]

• Affiliation with "anti-American" organizations (e.g., the Communist party, terrorist organizations, etc.) within 5 years of naturalization. The State Department views such affiliations as sufficient evidence that an applicant must have lied or concealed evidence in the naturalization process.[66]

• Other-than-honorable discharge from the U.S. armed forces before 5 years of honorable service, if honorable service was the basis for the naturalization.[66]

• Voluntary relinquishment of citizenship. This may be accomplished either through renunciation procedures specially established by the State Department or through other actions that demonstrate desire to give up national citizenship.[67]

• For much of the country's history, voluntary acquisition or exercise of a foreign citizenship was considered sufficient cause for revocation of national citizenship.[68] This concept was enshrined in a series of treaties between the United States and other countries (the Bancroft Treaties). However, the Supreme Court repudiated this concept in Afroyim v. Rusk(1967),[69] as well as Vance v. Terrazas (1980), [70] holding that the Citizenship Clause of the Fourteenth Amendment barred the Congress from revoking citizenship. However, Congress can revoke citizenship that it has previously granted to a person not born in the United States.[71]