CITIZENS OF THE UNITED STATES

The citizenship provisions of the Fourteenth Amendment may be seen as a repudiation of one of the more politically divisive cases of the nineteenth century. Under common law, free persons born within a state or nation were citizens thereof. In the Dred Scott case,2 however, Chief Justice Taney, writing for the Court, ruled that this rule did not apply to freed slaves. The Court held that United States citizenship was enjoyed by only two classes of people: (1) white persons born in the United States as descendants of “persons, who were at the time of the adoption of the Constitution recognised as citizens in the several States, [and who] became also citizens of this new political body,” the United States of America, and (2) those who, having been “born outside the dominions of the United States,” had migrated thereto and been naturalized therein.3 Freed slaves fell into neither of these categories.

The Court further held that, although a state could confer state citizenship upon whomever it chose, it could not make the recipient of such status a citizen of the United States. Thus, the “Negro,” as an enslaved race, was ineligible to attain United States citizenship, either from a state or by virtue of birth in the United States. Even a free man descended from a Negro residing as a free man in one of the states at the date of ratification of the Constitution was held ineligible for citizenship.4 Congress subsequently repudiated this concept of citizenship, first in section 15 of the Civil Rights Act of 18666 and then in section 1 of the Fourteenth Amendment. In doing so, Congress set aside the Dred Scott holding, and restored the traditional precepts of citizenship by birth.7

Based on the first sentence of section 1,8 the Court has held that a child born in the United States of Chinese parents who were ineligible to be naturalized themselves is nevertheless a citizen of the United States entitled to all the rights and privileges of citizenship.9 The requirement that a person be “subject to the jurisdiction thereof,” however, excludes its application to children born of diplomatic representatives of a foreign state, children born of alien enemies in hostile occupation,10 or children of members of Indian tribes subject to tribal laws.11 In addition, the citizenship of children born on vessels in United States territorial waters or on the high seas has generally been held by the lower courts to be determined by the citizenship of the parents.12 Citizens of the United States within the meaning of this Amendment must be natural and not artificial persons; a corporate body is not a citizen of the United States.13

In Afroyim v. Rusk,14 a divided Court extended the force of this first sentence beyond prior holdings, ruling that it withdrew from the government of the United States the power to expatriate United States citizens against their will for any reason. “[T]he Amendment can most reasonably be read as defining a citizenship which a citizen keeps unless he voluntarily relinquishes it. Once acquired, this Fourteenth Amendment citizenship was not to be shifted, canceled, or diluted at the will of the Federal Government, the States, or any other government unit.”15 In a subsequent decision, however, the Court held that persons who were statutorily naturalized by being born abroad of at least one American parent could not claim the protection of the first sentence of section 1 and that Congress could therefore impose a reasonable and non-arbitrary condition subsequent upon their continued retention of United States citizenship.16 Between these two decisions is a tension that should call forth further litigation efforts to explore the meaning of the citizenship sentence of the Fourteenth Amendment.

Footnotes

2
Scott v. Sandford, 60 U.S. (19 How.) 393 (1857). The controversy, political as well as constitutional, that this case stirred and still stirs is exemplified and analyzed in the material collected in S. KUTLER, THE DRED SCOTT DECISION: LAW OR POLITICS? (1967). See also DON E. FEHRENBACHER, THE DRED SCOTT CASE: ITS SIGNIFICANCE IN AMERICAN LAW AND POLITICS (1978); M. GRABER, DRED SCOTT AND THE PROBLEM OF CONSTITUTIONAL EVIL (2006); EARL M. MALTZ, DRED SCOTT AND THE POLITICS OF SLAVERY (2007); Symposium, 150th Anniversary of the Dred Scott Decision, 82 CHI.-KENT L. REV. 1–455 (2007). [Back to text]
3
60 U.S. (19 How.) at 406, 418. [Back to text]
4
60 U.S. (19 How.) at 404–06, 417–18, 419–20 (1857). [Back to text]
5
The proposed amendment as it passed the House contained no such provision, and it was decided in the Senate to include language like that finally adopted. CONG. GLOBE, 39th Cong., 1st Sess. 2560, 2768–69, 2869 (1866). The sponsor of the language said: “This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is . . . a citizen of the United States.” Id. at 2890. The legislative history is discussed at some length in Afroyim v. Rusk, 387 U.S. 253, 282–86 (1967) (Justice Harlan dissenting). [Back to text]
6
“That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude . . . shall have the same right[s] . . . .” Ch. 31, 14 Stat. 27. [Back to text]
7
United States v. Wong Kim Ark, 169 U.S. 649, 688 (1898). [Back to text]
8
“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.” [Back to text]
9
United States v. Wong Kim Ark, 169 U.S. 649 (1898). [Back to text]
10
169 U.S. at 682 (these are recognized exceptions to the common-law rule of acquired citizenship by birth). [Back to text]
11
169 U.S. at 680–82; Elk v. Wilkins, 112 U.S. 94, 99 (1884). [Back to text]
12
United States v. Gordon, 25 Fed. Cas. 1364 (C.C.S.D.N.Y. 1861) (No. 15,231); In re Look Tin Sing, 21 F. 905 (C.C.Cal. 1884); Lam Mow v. Nagle, 24 F.2d 316 (9th Cir. 1928). [Back to text]
13
Insurance Co. v. New Orleans, 13 Fed. Cas. 67 (C.C.D. La. 1870). Not being citizens of the United States, corporations accordingly have been declared unable to claim the protection of that clause of the Fourteenth Amendment that secures the privileges and immunities of citizens of the United States against abridgment by state legislation. Orient Ins. Co. v. Daggs, 172 U.S. 557, 561 (1869). This conclusion was in harmony with the earlier holding in Paul v. Virginia, 75 U.S. (8 Wall.) 168 (1869), to the effect that corporations were not within the scope of the privileges and immunities clause of state citizenship set out in Article IV, § 2. See also Selover, Bates & Co. v. Walsh, 226 U.S. 112, 126 (1912); Berea College v. Kentucky, 211 U.S. 45 (1908); Liberty Warehouse Co. v. Burley Growers’ Coop. Marketing Ass’n,, 276 U.S. 71, 89 (1928); Grosjean v. American Press Co., 297 U.S. 233, 244 (1936). [Back to text]
14
387 U.S. 253 (1967). Though the Court had previously upheld the involuntary expatriation of a woman citizen of the United States during her marriage to a foreign citizen in Mackenzie v. Hare, 239 U.S. 299 (1915), the subject first received extended judicial treatment in Perez v. Brownell, 356 U.S. 44 (1958), in which the Court, by a five-to-four decision, upheld a statute denaturalizing a native-born citizen for having voted in a foreign election. For the Court, Justice Frankfurter reasoned that Congress’s power to regulate foreign affairs carried with it the authority to sever the relationship of this country with one of its citizens to avoid national implication in acts of that citizen which might embarrass relations with a foreign nation. Id. at 60–62. Three of the dissenters denied that Congress had any power to denaturalize. See discussion of “Expatriation” under Article I, supra. In the years before Afroyim, a series of decisions had curbed congressional power. [Back to text]
15
Afroyim v. Rusk, 387 U.S. 253, 262–63 (1967). The Court went on to say, “It is true that the chief interest of the people in giving permanence and security to citizenship in the Fourteenth Amendment was the desire to protect Negroes. . . . This undeniable purpose of the Fourteenth Amendment to make citizenship of Negroes permanent and secure would be frustrated by holding that the government can rob a citizen of his citizenship without his consent by simply proceeding to act under an implied general power to regulate foreign affairs or some other power generally granted.” Four dissenters, Justices Harlan, Clark, Stewart, and White, controverted the Court’s reliance on the history and meaning of the Fourteenth Amendment and reasserted Justice Frankfurter’s previous reasoning in Perez. Id. at 268. [Back to text]
16
Rogers v. Bellei, 401 U.S. 815 (1971). This, too, was a five-to-four decision, with Justices Blackmun, Harlan, Stewart, and White, and Chief Justice Burger in the majority, and Justices Black, Douglas, Brennan, and Marshall dissenting. [Back to text]