The Naturalization Clause

The Congress shall have Power . . . To establish an uniform Rule of Naturalization . . . .

—Patrick Glen

Introduction

Naturalization authority is a hallmark of sovereignty, carrying with it the ability to “adopt[] a foreigner, and cloth[e] him with the privileges of a native citizen.”¹ It is therefore not surprising that conflicts over colonial naturalization policies helped lead to the Declaration of Independence. Yet it was not until ratification of the Constitution that authority over naturalization was placed firmly with the central government. State experimentation and the shortcomings of the Articles of Confederation ultimately led to the adoption of the Naturalization Clause in its final form, and Congress has exercised exclusive authority over citizenship issues since at least 1802.

History Before 1787

During the colonial era, the naturalization authority lay with Parliament. The colonial governments did not have an explicit grant of authority to enact naturalization policies.² Nonetheless, colonial governments encouraged migration to the colonies and conferred certain rights on aliens.³ Moreover, the colonies established liberal policies for the incorporation of aliens into the colonial body economic and politic. These colonial laws did not mandate compliance with the stricter requirements of British naturalization law.⁴

In response, Great Britain curtailed these actions. In 1767, the Crown began to veto the colonies’ bounty and benefits schemes to attract migrants.⁵ In 1740, Parliament enacted a new naturalization act that would govern the naturalization question uniformly throughout the empire.⁶ Three decades later, in 1773, Parliament established the exclusivity of these naturalization procedures.⁷ These acts limited the ability of the colonies to attract new migrants and normalize their legal status. These grievances found their way into the Declaration of Independence: The King “has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither[.]”⁸

Following independence, the new states devised a range of provisions to address naturalization. Certain states, including Pennsylvania and Vermont, enacted constitutional provisions that allowed foreigners to become “free denizen[s]” after a one-year residence in the state.⁹ Other states, such as New York, granted citizenship to foreigners without imposing any temporal residency requirement.¹⁰ Still others, such as Maryland, imposed longer periods of residence—as many as seven years—during which the individual gained progressively more rights.¹¹

On the more restrictionist side, many New England states required specific legislation, known as a special bill, that would grant citizenship and rights for an individual coupled with temporal residency requirements.¹² While the British conception of citizenship was perpetual, many in the post-independence states believed that renouncing one’s citizenship, known as expatriation, was an inherent and fundamental right. As a result, a former subject of Great Britain could expatriate, renounce his former citizenship, and become a citizen of the new states.¹³

The Continental Congress played no role in the enactment of naturalization policy.¹⁴ After the Articles of Confederation were ratified, this lack of federal authority over naturalization continued, but the Articles did establish an important principle for migration. Article IV provided that “the free inhabitants of each of these states . . . shall be entitled to all privileges and immunities of free citizens in the several states[.]”¹⁵ This provision permitted an alien to naturalize in a state with a liberal naturalization policy but then move to any other state in the Confederation—even one where he would not have qualified for naturalization under state law.¹⁶ The naturalization policy of the most permissive state thus became a de facto national naturalization policy.

Critically, the Articles of Confederation did not grant the central government any power governing naturalization. The absence of such authority in the Articles contributed directly to the subsequent adoption of the Constitution’s Naturalization Clause.

The Constitutional Convention

This defect of the Articles was the starting point of debate at the Constitutional Convention. The Virginia Plan did not include an explicit provision governing naturalization, but the New Jersey Plan provided that the “rule of naturalization ought to be the same in every State.”¹⁷ Before the Committee of Detail, the clause evolved. A draft simply gave Congress power “to regulate naturalization.”¹⁸ The Committee returned to the proposed language of the New Jersey Plan¹⁹ before settling on the formulation that would become the Naturalization Clause: empowering Congress “to establish an uniform Rule for Naturalization throughout the United States.”²⁰ The Committee of Style put the clause in its final form, joining naturalization with bankruptcy for the first time when it presented its report to the full Congress on September 12, 1787.²¹

The record of proceedings is silent with respect to any debate or controversy surrounding its inclusion, wording, and adoption.²²

The Ratification Debates

The Federalist Papers made two observations about the naturalization power. In Federalist No. 42, James Madison remarked about the lack of uniformity in naturalization laws under the Articles of Confederation. He observed that “the dissimilarity in the rules of naturalization, has long been remarked as a fault in our system, and as laying a foundation for intricate and delicate questions.” Madison added that “[t]he new Constitution has . . . with great propriety made provision against [the shortcomings of the Articles of Confederation] by authorising the general government to establish an uniform rule of naturalization throughout the United States.” In Federalist No. 32, Alexander Hamilton contended that only the federal government had power over naturalization, and the states had none. The naturalization authority, he wrote, “must . . . be exclusive; because if each State had power to prescribe a DISTINCT RULE, there could be no UNIFORM RULE.”

Congressional Practice

The first Congress promptly enacted the Naturalization Act of 1790. This law provided that “[f]ree white person[s]” who had “resided within the limits and under the jurisdiction of the United States for the term of two years” and had resided in a state for at least one year would be admitted as United States citizens upon proof of good character and taking of the prescribed oath.²³

The Naturalization Act of 1795 tightened the eligibility criteria for citizenship, requiring five years of residence.²⁴ However, it operated only prospectively. Aliens who were residing in the United States before this new law took effect were still eligible to apply for citizenship under the 1790 Act.²⁵ In 1798, Congress imposed dramatically longer eligibility criteria, including fourteen years of residence.²⁶ Unlike the 1795 Act, the 1798 Act did not provide a carve-out for aliens already present in the United States.²⁷ In 1802, the Jefferson Administration repealed the 1798 Act and effectively reinstated the 1795 Act.²⁸ Prospectivity has been a hallmark of naturalization legislation ever since.

The 1802 Act also established that the federal government would exercise exclusive power over naturalization. The law provided that state naturalizations qualified only if they occurred “previous to the passing of any law on that subject, by the government of the United States.”²⁹ In the future, the states would have no power over naturalization. Chief Justice John Marshall would opine “[t]hat the power of naturalization is exclusively in congress does not seem to be, and certainly ought not to be, controverted.”³⁰

Nevertheless, starting in 1839 Congress began to enact private bills that granted citizenship to individuals. Earlier Congresses seemed to believe, however, that private bills would be unconstitutional as naturalization of individuals could occur only through a “uniform rule.”³¹ Such bills became more common in the latter part of the nineteenth century.³²

Operating in the background of this legislative practice was the far more common method of conferring citizenship: birthright or jus soli citizenship, whereby birth within the United States under appropriate conditions conveyed citizenship even if the parents were not themselves citizens. As early as 1830, Justice Joseph Story recognized that “[n]othing is better settled at the common law than the doctrine that the children even of aliens born in a country, while the parents are resident there under the protection of the government, and owing a temporary allegiance thereto, are subjects by birth.”³³

The Right of Expatriation

Congress has the power to provide for a uniform rule of naturalization, but could a naturalized citizen at birth choose to expatriate and renounce his or her foreign citizenship? Early courts were divided over the existence and scope of a right to expatriation. Some courts assumed that the consent of the foreign state was required or at least that some positive law was necessary to authorize expatriation.³⁴ Others found that expatriation was a natural right that existed independent of any statutory authority.³⁵

In 1808 and 1818, Congress considered bills that would permit citizens to expatriate and renounce their foreign allegiances.³⁶ However, some members were concerned that expatriation was not a valid subject of federal legislation. Some members contended that allegiance was owed to the foreign state of residence and that federal control of repatriation meant federal control of this relationship and therefore would encroach on foreign state prerogatives.³⁷

Congress would finally address this issue after the Civil War.³⁸ The Expatriation Act of 1868 recognized the expatriation of prior aliens upon becoming U.S. citizens and declared expatriation to be a “natural and inherent right of all people.”³⁹

Involuntary Expatriation and Denaturalization

Expatriation can refer to a person’s right to renounce his foreign allegiances. It can also refer to the federal government’s power to revoke a person’s citizenship.⁴⁰ Beginning in the early twentieth century, Congress provided express bases for expatriating certain citizens. In legislation enacted in 1907 and 1940, for instance, Congress directed expatriation where a U.S. citizen is naturalized by a foreign government, where a naturalized U.S. citizen has returned to his or her home country and resided there for a certain number of years, and where a soldier has deserted the armed forces, among other circumstances.⁴¹ These laws connected expatriation to Congress’s naturalization authority.

The U.S. Supreme Court subsequently rejected many of these bases for expatriation and held that expatriation could not be imposed as punishment.⁴² Under modern doctrine, expatriation must arise from a voluntary renunciation of citizenship, although the intent to expatriate may be inferred from actions taken by the citizen.⁴³

Denaturalization, a related concept, refers to the federal government’s power to denaturalize a naturalized citizen. A natural-born citizen can be expatriated, but not denaturalized. The concept of denaturalization turns on certain incidents related to the process of naturalization itself. Under the Naturalization Act of 1906, fraud and ineligibility were bases for denaturalization.⁴⁴ Current law provides for denaturalization in several circumstances: where citizenship has been procured illegally or by concealment of a material fact or where the individual was statutorily ineligible at the time citizenship was granted.⁴⁵

1. Boyd v. Nebraska ex rel. Thayer, 143 U.S. 135, 162 (1892). ↩︎
2. James H. Kettner, The Development of American Citizenship, 1608–1870, at 78–80, 83 (1978). ↩︎
3. Id. at 83–90. ↩︎
4. James E. Pfander & Theresa R. Wardon, Reclaiming the Immigration Constitution of the Early Republic: Prospectivity, Uniformity, and Transparency, 96 Va. L. Rev. 359, 381–82 (2010). ↩︎
5. Id. at 377. ↩︎
6. An Act for Naturalizing Such Foreign Protestants, and Others Therein Mentioned, as Are Settled, or Shall Settle, in Any of His Majesty’s Colonies in America, 13 Geo. 11, c. 7 (Eng. 1740). ↩︎
7. An Act Amending the Act for Naturalizing Foreign Protestants, 13 Geo. III, c. 21 (Eng. 1773). ↩︎
8. Declaration of Independence, ¶ 9. ↩︎
9. Pa. Const. of 1776, § 42; Vt. Const. of 1777, § XXXVIII; Kettner, supra at 214. ↩︎
10. Id. ↩︎
11. Id. at 215–16. ↩︎
12. Id. at 216–18. ↩︎
13. Josh Blackman, Original Citizenship, 159 U.Penn. L. Rev. PENNumbra 95, 104–08 (2010). ↩︎
14. Kettner, supra at 219. ↩︎
15. Articles of Confederation, art. IV, § 1. ↩︎
16. Pfander & Wardon, supra at 384. ↩︎
17. 1 Farrand’s 242, 245. ↩︎
18. 2 Farrand’s 144. ↩︎
19. Id. at 158. ↩︎
20. Id. at 167. ↩︎
21. Pfander & Wardon, supra at 386 n.122. ↩︎
22. Kettner, supra at 225; Pfander & Wardon, supra at 386. ↩︎
23. An Act to Establish an Uniform Rule of Naturalization, 1 Stat. 103 (1790). ↩︎
24. An Act to Establish an Uniform Rule of Naturalization, 1 Stat. 414 (1795). ↩︎
25. Id. at § 2. ↩︎
26. Naturalization Act of 1798, 1 Stat. 566 (1798). ↩︎
27. Pfander & Wardon, supra at 407. ↩︎
28. Naturalization Act of 1802, 2 Stat. 153 (1802). ↩︎
29. Id. at § 4. ↩︎
30. Chirac v. Chirac’s Lessee, 15 U.S. 259, 269 (1817). ↩︎
31. Kettner, supra at 253; Pfander & Wardon, supra at 399–402. ↩︎
32. Pfander & Wardon, supra at 429. ↩︎
33. Inglis v. Trs. of Sailor’s Snug Harbour, 28 U.S. (3 Pet.) 99, 164 (1830). ↩︎
34. Pfander & Wardon, supra at 271–73 (citing, inter alia, United States v. Gillies, 25 F. Cas. 1321, 1322 (U.S.C.C. 1815)). ↩︎
35. Id. at 273–74 (citing, inter alia, Murray v. M’Carty, 2 Munford 393, 396–97 (Va. 1811)). ↩︎
36. Kettner, supra at 281, 284. ↩︎
37. Id. at 282–83, 283–84. ↩︎
38. Daniel Rice, The “Uniform Rule” and Its Exceptions: A History of Congressional Naturalization Legislation, 40 The Ozark Historical Rev. 23, 50–51 (2011). ↩︎
39. Expatriation Act of 1868, 15 Stat. 223. ↩︎
40. Nishikawa v. Dulles, 356 U.S. 129, 133–36 (1958). ↩︎
41. Expatriation Act of 1907, 34 Stat. 1228 (1907); Nationality Act of 1940, 68 Stat. 1146 (1940). ↩︎
42. Kennedy v. Mendoza-Martinez, 372 U.S. 144 (1963); Trop v. Dulles, 356 U.S. 86 (1958). ↩︎
43. Afroyim v. Rusk, 387 U.S. 253 (1967); 8 U.S.C. § 1481. ↩︎
44. Naturalization Act of 1906 § 15, 34 Stat. 596 (1906). ↩︎
45. 8 U.S.C. § 1451(a). ↩︎