The Citizenship Clause

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.

—Kurt T. Lash

Introduction

The Citizenship Clause establishes birthright national citizenship, defines the status of national citizenship, and secures the status of state citizenship. The national citizenship clause formally reversed Dred Scott v. Sandford (1857), which held that black Americans could not be citizens of the United States.¹ The state citizenship clause prohibits states from denying resident American citizens their equal status as state citizens. The federal government had long treated the children of illegally present aliens who are born in the United States as citizens by birth, but this issue remains contested.

Historical Background

The original Constitution left both state and national citizenship undefined, but several provisions implied the existence of citizenship. For example, Article II requires the President to be a “natural born citizen,” Article III allows “citizens” to invoke a federal court’s jurisdiction, and Article IV guarantees that “[t]he citizens of each State shall be entitled to all privileges and immunities of citizens in the several States.” (See Essay Nos. 96, 131, and 140.) No provision in the original Constitution, however, explained how one became a citizen of the United States or a citizen of an individual state.

Chief Justice John Marshall addressed this issue in Gassies v. Ballon (1832): “A citizen of the United States, residing in any state of the Union, is a citizen of that State.”² Marshall did not indicate whether he was stating a legal definition or simply noting the common understanding. Justice Joseph Story likewise echoed Marshall’s presumption, observing that every person who moves to a state with the intention of establishing residence “becomes, ipso facto, a citizen of the state where he resides.” Moreover, “[e]very citizen of a state is, ipso facto, a citizen of the United States.”³ Like Marshall, Story did not indicate whether this was a rule of law or simply the common understanding.

During the antebellum era, states simply assumed that they retained the power to determine who could become a local citizen. For white Americans, local birth and current residency generally sufficed to establish state citizenship. For black Americans, the situation was quite different. Enslaved black Americans were treated not as persons (much less citizens), but as “property.” In slaveholding states, free black Americans faced severe legal disabilities that were not imposed on white state residents. Even in northern free states, state laws frequently denied resident black Americans equal civil rights.⁴

In Dred Scott v. Sandford, Chief Justice Roger B. Taney relied on this history of racially discriminatory laws to support his conclusion that black Americans were not “citizens” as the term was used in the federal Constitution. The contrary conclusion, Taney pointed out, would require granting black Americans equal rights throughout the Union. These rights would include all the “Privileges and Immunities of Citizens in the several States” recognized in Article IV—a prospect Taney found self-refuting.⁵ Justice Benjamin Curtis dissented from the Dred Scott majority’s view of national citizenship but conceded that the states retained the power to determine who could become a citizen of the state and to determine “[w]hat civil rights shall be enjoyed by its citizens, and whether all shall enjoy the same.”⁶

Abolitionist Republicans rejected Chief Justice Taney’s race-based reading of the Constitution and his denial of black citizenship. In 1859, Representative John Bingham, a Republican from Ohio, asked, “Who are citizens of the United States?” Bingham explained that “all free persons born and domiciled within the United States” are citizens of the United States—“not all free white persons, but all free persons.” He contended that the word “white” is not in the Articles of Confederation and the Constitution and concluded that “[t]he omission of this word—this phrase of caste—from our national charter, was not accidental, but intentional.”⁷

Bingham’s view represented the mainstream Republican understanding of citizenship. In 1862, Republican Attorney General Edward Bates published a Report on Citizenship.⁸ He explained that the laws of the United States did not recognize a category of “denizens” or persons occupying an intermediate status between foreigner and citizen. Instead, “every person born in the country is, at the moment of their birth, prima facia a citizen . . . without any reference to race or color, or any other accidental circumstances.” Under this principle of birthright citizenship, “the free man of color . . . if born in the United States, is a citizen of the United States.” Bates argued that Chief Justice Taney’s suggestion to the contrary in Dred Scott was nothing more than dicta “and of no authority as a judicial decision.”

The Thirteenth Amendment and Birthright Citizenship

In December 1865, the Thirteenth Amendment was ratified. (See Essay No. 191.) The amendment, by its terms, abolished slavery, but many Republicans contended that the amendment also removed an artificial barrier to birthright citizenship and restored the state and national citizenship of the formerly enslaved. The former rebel states, however, had no interest in recognizing black citizenship and enacted the infamous Black Codes. These race-based laws severely restricted the ability of black residents to buy or rent property, contract for labor, or testify in cases involving a dispute with a white employer. Anyone convicted of vagrancy could be imprisoned and sold as convict labor to their former masters. What little legal process was available to freedmen as a formal matter was either rarely or unequally enforced.⁹

Republicans in the 39th Congress knew that the formal abolition of slavery would not be enough to secure the rights of equal citizenship in the southern states. Accordingly, they refused to seat Democratic Representatives from the former rebel states until they had first established a sufficiently protective legal regime.¹⁰ One of their first efforts in this regard was passage of the Civil Rights Act of 1866. The Act’s opening sentence declared 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” The Act specifically prohibited states from denying any “such citizens” equal local civil rights on the basis of race.11 Although John Bingham questioned congressional power to pass the Act, he believed the clause was “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural-born citizen.”¹¹

It was debated whether the Thirteenth Amendment had granted Congress the constitutional power to pass this act. The statute’s opening statement that recognized national birthright citizenship openly challenged the Supreme Court’s ruling to the contrary in Dred Scott. And though it did not make any express reference to state citizenship, the law involved matters generally viewed as state-level civil rights. According to Justice Curtis’s dissent in Dred Scott, the Constitution reserved to the states the power to define the status and scope of state citizenship.

Drafting the Citizenship Clause

Three weeks after Congress passed the Civil Rights Act, the Joint Committee on Reconstruction submitted a proposed Fourteenth Amendment, which addressed the rights of national citizenship.¹² Representative Bingham drafted Section One of the proposal. It declared that “no state shall make or enforce any law abridging the privileges or immunities of citizens of the United States.”¹³ The Committee’s draft did not define how one became a citizen of the United States, nor did it say anything about the status and scope of state citizenship.

The House passed the Joint Committee’s draft with little debate, but Senate Republicans desired a number of changes. They held a series of private caucuses in which proposed alterations were drafted and adopted. Senator Jacob Howard of Michigan then announced to the full Senate a proposed addition to the opening of Section One of the Fourteenth Amendment: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.”¹⁴

According to Howard, the proposal was “simply declaratory of what I regard as the law of the land already.” Howard also addressed the phrase “subject to the jurisdiction thereof.” He explained that this category would not include “persons born in the United States who are foreigners, aliens, [and] who belong to the families of embassadors [sic] or foreign ministers accredited to the Government of the United States.”¹⁵ According to Senator John Conness of California, “children begotten of Chinese parents in California . . . should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.”¹⁶

During another debate, Senator Edgar Cowan of Pennsylvania asked, “Is the child of a Gypsy born in Pennsylvania a citizen?”¹⁷ Senator John Conness of California answered that the children of Chinese and Gypsy aliens “shall be citizens” and that he was “entirely ready to accept the provision proposed in this constitutional amendment.”¹⁸ During the proceedings, no Senator voiced an objection to the arguments advanced by Howard and Connell.

In response to questions regarding the impact of the clause on Native Americans, Sponsor of the Civil Rights Act and Chairman of the Senate Judiciary Committee Lyman Trumbull responded, “What do we mean by “subject to the jurisdiction of the United States?” Not owing allegiance to anybody else. . . . It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other government, that he is “subject to the jurisdiction of the United States.”¹⁹ Both houses accepted the new language of Section One and passed the final version of the Fourteenth Amendment on June 13, 1866.²⁰

Citizenship and the Right to Vote

During the state ratification debates, proponents of the Fourteenth Amendment described the Citizenship Clauses of Section One as establishing the equal rights of citizenship. In Pennsylvania, Carl Schurz explained that Section One “declares citizens all persons born or naturalized in the United States and provides that such citizens shall be protected in the enjoyment of equal civil rights in whatever State they may reside.”²¹ Democrats charged that the amendment gave black Americans the right to vote, but Republicans in Congress insisted that mere status of citizenship did not by itself secure the political rights of suffrage. Women and children, for example, were citizens but did not have the right to vote.²²

However, it was widely agreed that the freedmen would receive the civil rights of citizenship. The New Orleans Tribune, a black American newspaper, wrote that “every man of African descent is not only declared to be a citizen of the state wherein he resides, but he will be entitled to the same privileges and immunities as any other citizen.” Additionally, “all classifications among citizens must fall” and “every title of citizenship is declared to be of like value, and to confer the same rights.”²³

In 1868, Reverend Elisha Weaver, a black abolitionist, similarly explained that citizenship “carries with it the rights of citizens.” He contended that “the evident duty of a liberty loving and a loyal Congress is to see that a Republican form of government is guaranteed to every State” and added that these rights are “not guaranteed while any State is permitted to withhold from citizens, on account of color merely, the rights of citizens.”²⁴

Civil rights leaders like Weaver believed that the status of citizenship necessarily removed the color bar at the ballot box. Frederick Douglass, for example, insisted that because “the Constitution of the United States knows no distinction between citizens on account of color,” Congress should exercise “its power to secure political rights” for black citizens.²⁵

This understanding did not prevail when the Fourteenth Amendment was ratified, but two years later, Americans ratified the Fifteenth Amendment. This third and final Reconstruction Amendment declared that “[t]he right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of race, color, or previous condition of servitude.” (See Essay No. 201.)

Judicial Enforcement of the Citizenship Clause

The Civil Rights Cases (1883) considered the constitutionality of the Civil Rights Act of 1875, which prohibited discrimination in places of public accommodation.²⁶ The Court held that Section Five of the Fourteenth Amendment did not empower Congress to prohibit racial discrimination by private actors. Justice John Marshall Harlan was the lone dissenter. He would have upheld the Act as an enforcement of the rights of national and state citizenship under the Fourteenth Amendment. Harlan declared that “Citizenship in this country necessarily imports equality of civil rights among citizens of every race in the same State.” He added that “It is fundamental in American citizenship that, in respect of such rights, there shall be no discrimination by the State, or its officers, or by individuals, or corporations exercising public functions or authority.”

Birthright Citizenship

In United States v. Wong Kim Ark (1898), the Supreme Court ruled that the children of lawfully resident parents born on United States soil were “persons born in the United States . . . subject to the jurisdiction thereof” and accordingly are citizens of the United States under the Fourteenth Amendment.²⁷ The Court interpreted the citizenship clauses as following the common law whereby “every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.”²⁸ Chief Justice Melville Fuller dissented, joined by Justice Harlan. They rejected the argument that the Citizenship Clause followed the English model. Rather, they found that children of foreign nationals were not “subject to the jurisdiction thereof.”²⁹

Wong Kim Ark considered the status of children born to lawfully resident parents; there remains an ongoing scholarly debate about birthright citizenship for the children of aliens in the country unlawfully. Some scholars contend that the Framers of the Fourteenth Amendment did not intend to grant citizenship to such children.³⁰ Senator Lyman Trumbull of Illinois, for example, said that “subject to the jurisdiction of the United States” referred to a person “[n]ot owing allegiance to anybody else.”³¹ Scholars, citing Trumbull, contend that the phrase “subject to the jurisdiction thereof” refers to people who are not subject to allegiances, or loyalties, to foreign states. Children of foreign national parents would be subject to such allegiances and therefore would not be “subject to the jurisdiction thereof.”

Other scholars contend that “subject to the jurisdiction thereof” simply refers to a person who was subject to U.S. law.³² Foreigners who visit the United States are required to follow American laws. Under this argument, these aliens are in every sense subject to U.S. “jurisdiction,” or control. These scholars also point to Senator Howard’s remarks, and the colloquy between Senators Cowen and Conness. If “subject to the jurisdiction thereof” refers to aliens who are subject to U.S. laws, it does not matter whether the parents are in the country legally.

For more than a century, all three branches of government have treated the children of aliens, whether lawfully present or not, as birthright citizens.³³ However, in January 2025, President Trump signed an executive order that purported to limit birthright citizenship.

Open Questions

• Could the executive branch deprive children of illegal aliens of certain benefits reserved for citizens on the grounds that the former are not birthright citizens?³⁴
• What is the relationship between the Citizenship Clause of the Fourteenth Amendment and the Presidential Eligibility Clause in Article II? Would a person who is born outside the United States to an American parent and is a citizen at birth by statute be a natural born citizen for purposes of the presidency? (See Essay No. 96.)
• Does the status of equal citizenship have the effect of guaranteeing all local citizens equal civil rights? If so, should the Court in Brown v. Board of Education (1954) have relied on the original understanding of the State Citizenship Clause? What about Bolling v. Sharpe (1954), which held that segregated schools in the federal enclave of the District of Columbia were unconstitutional? Should Bolling have relied on the concept of National Citizenship Clause?

1. 60 U.S. 393 (1857). ↩︎
2. 31 U.S. 761, 762 (1832). ↩︎
3. 3 Story’s Commentaries §§ 564–66. ↩︎
4. Kate Masur, Until Justice Be Done: America’s First Civil Rights Movement, from the Revolution to Reconstruction 151 (2021). ↩︎
5. Dred Scott, 60 U.S. at 417. ↩︎
6. Id. at 583. ↩︎
7. John Bingham, Speech Opposing the Admission of Oregon (Feb. 11, 1859), in 1 RA 155. ↩︎
8. Attorney General Edward Bates, Report on Citizenship (Nov. 29, 1862), in 1 RA 361–63. ↩︎
9. Allen C. Guelzo, Reconstruction: A Concise History 25–26, 45 (2018). ↩︎
10. Majority Report of the Joint Committee on Reconstruction (1866), in 2 RA 214–15. ↩︎
11. Cong. Globe, 39th Cong., 1st Sess. 1291 (1866). ↩︎
12. Id. at 2286–87. ↩︎
13. Id. ↩︎
14. Id. at 2890. ↩︎
15. Id. at 2891. ↩︎
16. Id. At 2891 (remarks of Mr. Conness). ↩︎
17. Id. at 2890. ↩︎
18. Id. at 2891–92. ↩︎
19. Id. at 2893. ↩︎
20. Id. at 3149. ↩︎
21. Carl Schurz on the Issues of the Day, Daily Evening Telegraph (Sept. 10, 1866), at 3. ↩︎
22. Speech of Schuyler Colfax (Aug. 7, 1866), in 2 RA 258. ↩︎
23. John Mercer Langston, Equality Before the Law, New Orleans Tribune (June 16, 1866), at 1. ↩︎
24. Rev. Elisha Weaver, To the Colored Men of the United States: Call for a National Convention, The Christian Recorder (Oct. 24, 1868). ↩︎
25. Frederick Douglass, Reconstruction, Atlantic Monthly (Nov. 1866), in 2 RA 296. ↩︎
26. 109 U.S. 3 (1883). ↩︎
27. 169 U.S. 649 (1898). ↩︎
28. Id. at 658. ↩︎
29. Id. at 705–32. ↩︎
30. John C. Eastman, Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11, 42 U. Rich. L. Rev. 955 (2008); Amy Swearer, The Citizenship Clause’s Original Meaning and What It Means Today, Heritage Found. Legal Memorandum No. 243 (May 14, 2019), https://perma.cc/EF6E-L73A; Kurt T. Lash, Prima Facie Citizenship: Birth, Allegiance and the Fourteenth Amendment’s Citizenship Clause, 101 Notre Dame L. Rev. __ (Forthcoming 2025). ↩︎
31. Cong. Globe, 39th Cong., 1st Sess. 2893 (1866). ↩︎
32. James C. Ho, Defining “American”: Birthright Citizenship and the Original Understanding of the 14th Amendment, 9 Green Bag 2d 367 (2006). ↩︎
33. Id. at 377. ↩︎
34. Josh Blackman, Birthright Citizenship Is a Constitutional Mandate, Wall St. J. (Oct. 31, 2018), https://perma.cc/6VEG-WJC7. ↩︎