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CRS Annotated Constitution

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Clause 4. The Congress shall have Power * * * To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.


Nature and Scope of Congress’ Power

Naturalization has been defined by the Supreme Court as “the act of adopting a foreigner, and clothing him with the privileges of a native citizen.”1127 In the Dred Scott case,1128 the Court asserted that the power of Congress under this clause applies only to “persons born in a foreign country, under a foreign government.”1129 These dicta are much too narrow to describe the power that Congress has actually exercised on the subject. The competence of Congress in this field merges, in fact, with its indefinite, inherent powers in the field of foreign relations. “As a government, the United States is invested with all the attributes of sovereignty. As it has the character of nationality it has the powers of nationality, especially those which concern its relations and intercourse with other countries.”1130

Congress’ power over naturalization is an exclusive power; no State has the power to constitute a foreign subject a citizen of the United States.1131 But power to naturalize aliens may be, and was early, devolved by Congress upon state courts of record.1132 And States may confer the right of suffrage upon resident aliens who have declared their intention to become citizens and many did so until recently.1133


Citizenship by naturalization is a privilege to be given, qualified, or withheld as Congress may determine, an individual may claim it as a right only upon compliance with the terms Congress imposes.1134 This interpretation makes of the naturalization power the only power granted in Sec. 8 of Article I that is unrestrained by constitutional limitations on its exercise. Thus, the first naturalization act enacted by the first Congress restricted naturalization to “free white persons[s],”1135 which was expanded in 1870 so that persons of “African nativity and . . . descent” were entitled to be naturalized.1136 Orientals were specifically excluded from eligibility in 1882,1137 and the courts enforced these provisions without any indication that constitutional issues were thereby raised.1138 These exclusions are no longer law. Present naturalization statutes continue and expand on provisions designed to bar subversives, dissidents, and radicals generally from citizenship.1139

Although the usual form of naturalization is through individual application and official response on the basis of general congressional rules, naturalization is not so limited. Citizenship can be conferred by special act of Congress,1140 it can be conferred collectively either through congressional action, such as the naturalization of all residents of an annexed territory or of a territory made a State,1141 or through treaty provision.1142


Categories of Citizens: Birth and Naturalization

The first sentence of Sec. 1 of the Fourteenth Amendment contemplates two sources of citizenship and two only: birth and naturalization.1143 This contemplation is given statutory expression in Sec. 301 of the Immigration and Nationality Act of 1952,1144 which itemizes those categories of persons who are citizens of the United States at birth; all other persons in order to become citizens must pass through the naturalization process. The first category merely tracks the language of the first sentence of Sec. 1 of the Fourteenth Amendment in declaring that all persons born in the United States and subject to the jurisdiction thereof are citizens by birth.1145 But there are six other categories of citizens by birth. They are: (2) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe, (3) a person born outside the United States of citizen parents one of whom has been resident in the United States, (4) a person born outside the United States of one citizen parent who has been continuously resident in the United States for one year prior to the birth and of a parent who is a national but not a citizen, (5) a person born in an outlying possession of the United States of one citizen parent who has been continuously resident in the United States or an outlying possession for one year prior to the birth, (6) a person of unknown parentage found in the United States while under the age of five unless prior to his twenty–first birthday he is shown not to have been born in the United States, and (7) a person born outside the United States of an alien parent and a citizen parent who has been resident in the United States for a period of ten years, provided the person is to lose his citizenship unless he resides continuously in the United States for a period of five years between his fourteenth and twenty–eighth birthdays.

Subsection (7) citizens must satisfy the condition subsequent of five years continuous residence within the United States between the ages of fourteen and twenty–eight, a requirement held to be constitutional,1146 which means in effect that for constitutional purposes, according to the prevailing interpretation, there is a difference between persons born or naturalized in, that is, within, the United States and persons born outside the confines of the United States who are statutorily made citizens.1147 The principal dif[p.268]ference is that the former persons may not be involuntarily expatriated whereas the latter may be, subject only to due process protections.1148


1127 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892).
1128 Scott v. Sandford, 19 How. (60 U.S.) 393 (1857).
1129 Id., 417, 419.
1130 Mackenzie v. Hare, 239 U.S. 299, 311 (1915).
1131 Chirac v. Chirac, 2 Wheat. (15 U.S.) 259, 269 (1817); United States v. Wong Kim Ark, 169 U.S. 649, 701 (1898).
1132 The first naturalization act, 1 Stat. 103 (1790), so provided. See 8 U.S.C. Sec. 1421 . In Holmgren v. United States, 217 U.S. 509 (1910), it was held that Congress may provide for the punishment of false swearing in the proceedings in state courts.
1133 Spragins v. Houghton, 3Ill.377 (1840); Stewart v. Foster, 2 Binn. (Pa.) 110 (1809). See K. Porter, A History of Suffrage in the United States (New York: 1918), ch. 5.
1134 United States v. Macintosh, 283 U.S. 605, 615 (1931); Fong Yue Ting v. United States, 149 U.S. 698, 707–708 (1893). A caveat to this statement is that with regard to persons naturalized in the United States the qualification may only be a condition precedent and not a condition subsequent, Schneider v. Rusk, 377 U.S. 163 (1964), whereas persons born abroad who are made citizens at birth by statute if one or both of their parents are citizens are subject to conditions subsequent. Rogers v. Bellei, 401 U.S. 815 (1971).
1135 1 Stat. 103 (1790).
1136 Act of July 14, 1870, Sec. 7, 16 Stat. 254, 256 .
1137 Act of May 6, 1882, Sec. 1, 22 Stat. 58 .
1138 Cf. Ozawa v. United States, 260 U.S. 178 (1922); United States v. Bhagat Singh Thind, 261 U.S. 204 (1923); Toyota v. United States, 268 U.S. 402 (1925); Morrison v. California, 291 U.S. 82 (1934). The Court refused to review the only case in which the constitutional issue was raised and rejected. Kharaiti Ram Samras v. United States, 125 F. 2d 879 (9th Cir., 1942), cert. den., 317 U.S. 634 (1942).
1139 The Alien and Sedition Act of 1798, 1 Stat. 570 , empowered the President to deport any alien he found dangerous to the peace and safety of the Nation. In 1903, Congress provided for denial of naturalization and for deportation for mere belief in certain doctrines, i.e., anarchy. Act of March 3, 1903, 32 Stat. 1214 . See United States ex rel. Turner v. Williams, 194 U.S. 279 (1904). The range of forbidden views was broadened in 1918. Act of October 15, 1918, Sec. 1, 40 Stat. 1012 . The present law is found in 8 U.S.C. Sec. 1424 and is discussed infra, pp.268–270.
1140 E.g., 77 Stat. 5 (1963) (making Sir Winston Churchill an “honorary citizen of the United States.”).
1141 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135 (1892); Contzen v. United States, 179 U.S. 191 (1900).
1142 Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 164, 168– 169 (1892).
1143 United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898).
1144 66 Stat. 235 , 8 U.S.C. Sec. 1401 .
1145 Sec. 301(a)(1), 8 U.S.C. Sec. 1401 (a)(1).
1146 Rogers v. Bellei, 401 U.S. 815 (1971).
1147 Compare Schneider v. Rusk, 377 U.S. 163 (1964); Afroyim v. Rusk, 387 U.S. 253 (1967). It will be noted that in practically all cases persons statutorily made citizens at birth will be dual nationals, having the citizenship of the country where they were born. Congress has never required a citizen having dual nationality to elect at some point one and forsake the other but it has enacted several restrictive statutes limiting the actions of dual nationals which have occasioned much litigation. E.g., Savorgnan v. United States, 338 U.S. 491 (1950); Kawakita v. United States, 343 U.S. 717 (1952); Kennedy v. Mendoza– Martinez, 372 U.S. 144 (1963); Schneider v. Rusk, 377 U.S. 163 (1964); Rogers v. Bellei, 401 U.S. 815 (1971).
1148 Cf. Rogers v. Bellei, 401 U.S. 815, 836 (1971); Kennedy v. Mendoza–Martinez, 372 U.S. 144 (1963); Perez v. Brownell, 356 U.S. 44, 58–62 (1958).
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