There has been discussion about whether the 14th Amendment intended to provide citizenship to children born in the United States of foreign nationals. Along with the 13th and 15th amendments the 14th was drafted and enacted following the War of Northern Aggression to address ills that arose from the institution of slavery.
Up until that period of unpleasantness everyone was a citizen of a State, not a citizen of the nation. Under the theory and practice of States’ rights the individual owed his allegiance to his respective State and the State had the relationship with national government. One must be very careful in readings of earlier times as to whether United States refers to coming together of the several States to form the Union of states, or the country as a nation state as we now mean.
It is important to know what is meant by term “citizen”. From Black’s Law Dictionary:
Citizen: members of a community inspired to common goal, which, as associated relations, submit themselves to rules of conduct for the promotion of general welfare and conservation of individuals as well as collective rights.
In re McIntosh, D.C.Wash.,12 F.Supp. 177
(“The words ‘citizen’ and ‘citizenship’, however, usually include the idea of domicile, Delaware, L.& W.R. Co. v. Petrowsky, C.C.N.Y. 250 F. 554, 557; ‘citizen inhabitant and resident often synonymous’, Jonesboro Trust Co. v. Nutt, 118 Ark. 368, 176 S.W. 322, 324; and, ‘citizenship and domicile are often synonymous’, Messick v. Southern Pa. Bus Co, D.C.Pa, 59 F.Supp. 799, 800.”)
The 13th Amendment, which abolished slavery and involuntary servitude, was inadequate. The southern states as they were readmitted tended to send the leadership of the former Confederacy to Congress. Laws referred to as Black Codes were meant to provide an end-run of the 13th Amendment and to control freed slaves. Former slaves were not permitted to vote or to purchase or own land. They were barred from many occupations, could not testify in a case involving a white man, required to dress as laborers when in community settings, etc. They weren’t citizens of the State, only a citizen of the nation.
The Civil Rights Act of 1866 was passed declaring blacks to be citizens and was to deny the states the ability to restrict their rights. It was largely ineffective. The 14th Amendment was subsequently passed to correct the inadequacies of the 13th Amendment.
Article XIV, Section 1. “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.” This was monumental.
The individual was now a citizen of the nation. All persons born or naturalized in the United States and subject to the jurisdiction thereof were now citizens of both the Nation and the State. Allegiance is owed to both.
IN Slaughter-House Cases 16 Wall. 36, 83 US 36 (1872) is the first major case arising from the 14th Amendment. The case issue was not involving former slaves, African-Americans, and citizenship issues for individuals, or children born in this country.
The Slaughter-House Cases involved competing businesses. The contention was that the 14th Amendment had created a “new” citizenship level that the relationship with the State had been replaced, and that now the national government was the source of all rights formerly enjoyed by the States. The Court held “nice try” while ruling the 14th Amendment was primarily intended to provide State citizenship for the benefit of the African-Americans. The Court has also held that same right of citizenship was conferred on all other races that were naturalized or born in the United States. It did not extend full citizenship to women and Indians. However there are specific exceptions with regard to the phrase “and subject to the jurisdiction thereof”. For example a child born to a foreign minister or diplomat would not be a citizen. Neither would a child born to enemy aliens during time of war.
This is not a new concept. It is an ancient rule of citizenship that is recognized around the world. In the western world the practice goes back to at least early Rome.
An alien is a foreigner, one born outside the US for our purposes. An alien is a person who owes allegiance to a foreign government. An alien is “subject to the jurisdiction” of the country of residence and owes allegiance to that country. For an alien residing in the United States it is the United States that is the “foreign power” to whom allegiance is owed. Therefore, his children become citizens by birth.
In the late 1800s Congressional action barred Chinese from naturalized citizenship. A Chinese couple that were permanently residing in this country and conducting a business was considered subjects of the Emperor of China. The Supreme Court ruled that while the parents could be refused citizenship; children who were born in the United States and “subject to the jurisdiction thereof” would be US citizens. (United States v. Wong Kim Ark (1898) 169 US 649) Several subsequent cases have affirmed.
The question was posed as to whether IN Slaughter-House Cases had been overturned. Apparently not since blacks are still entitled to full citizenship rights. Are all children who are born in the United States citizens, except those noted? In the United States we have a long and proud custom of following historical tradition, law, and legal precedent.
This writing heavily sourced U.S. Constitution, Black’s Law Dictionary, “The CONSTITUTION of the UNITED STATES: Its Sources and Its Application” by Thomas James Norton, and “Don’t’ Know Much About History?” by Kenneth C. Davis