This page excerpts all U.S. Supreme Court opinions that use the term "natural born citizen", based on a search conducted in Justia's Supreme Court Cases for that quoted phrase. The purpose of this compendium is to provide a a general understanding of how - and in what context - the US Supreme Court has used the term "natural born citizen."
Some of these opinions merely use the phrase in reciting the facts of the case, without discussion as to its meaning. We've included those cases in order to provide a comprehensive compendium of the Court's use of the phrase. Other opinions use the phrase in the context of addressing issues having nothing to do with citizenship. Again, we've still included those cases for purposes of completeness. Still other opinions using the phrase have been since overruled or abrogated by Constitutional Amendment or federal statute (e.g., Dred Scott). Again, we still include excerpts from those opinions for completeness purposes. And, of course, several opinions do use the phrase in the context of a discussion of what citizenship means.
What becomes clear from this compendium is that:
- Until 1971, the US Supreme Court recognized two types of citizenship, and two types only: natural born and naturalized. In the 1971 case, Rogers v. Bellei, 401 U.S. 815 (1971), the Court, in a 5-4 opinion, created a third type of "non-constitutional" citizenship, holding that a person who attains his/her US citizenship by virtue of being born abroad to a US citizen is not a "Fourteenth Amendment first sentence citizen" and, as such, is not entitled to the protections of the 14th Amendment.
- The US Supreme Court has consistently and repeatedly equated the concept of "natural born citizenship" with "native-born citizenship" and "born a US citizen." Indeed, there is no case in which the Court makes any distinction between a natural born citizen and a native born citizen or born US citizen.
For a compendium of cases and legal authority specifically addressing the meaning of the term "natural born citizen," see The "Natural Born Citizenship" Clause (Updated).
We are working on a separate compendium of cases in which the US Supreme Court uses the term "native born citizen" in various contexts, including, e.g., in reference to Article II requirements, such as the case of Luria v. U.S., 231 U.S. 9 (U.S. 1913), in which the Supreme Court said: "Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects, save that of eligibility to the Presidency."
|US v. Villato, 2 U.S. 370 (1797)|
Context: Case involved a prisoner, captured and charged with treason. The issue was whether he could be charged with treason, given that he was "by birth a Spaniard, and had never become a naturalized citizen of the United States."
"... The act declares, that a foreigner, having taken the oath, or affirmation, of allegiance, and resided here one year, shall be entitled to all the rights and privileges specified in the 42nd section of the old consti ution; that is, he may acquire, hold, and transfer real estate, and enjoy all the rights of a natural born subject of this state, except the right of being elected a representative, which he cannot enjoy for two years. Now, the existing constitution will not allow any man to be even an elector, who has not resided here two years; and besides requiring a longer period of residence than two years, to entitle a citizen to be elected a representative, a senator, or governor, it superadds the qualification, that he shall be of a certain age, before he can be chosen for those offices respectively. If, then, the act of assembly is in force, an alien naturalized under it, having the rights of the old, is in a situation preferable to a natural born citizen under the accumulative restraints of the new constitution. But a contrary construction has been given whenever the point was directly presented for consideration (which was not the case in Collet v. Collet) by the legislature, by our courts, and by the bar.
Note: Court recognizes two (and only two) types of citizens: natural born, and naturalized. Court uses "natural born citizen" in context of general citizenship, and not as some special class applicable to Article II.
|Jackson ex Dem. People of State of New York v. Clarke, 16 U.S. 3 Wheat. 11 (1818)|
Context: Issue was whether person born in Colony of NY, who then returned to Great Britain where he died, could properly devise property in NY to defendant (who was born in English and an English subject).
"On 22 March, 1791, the Legislature of New York passed an act to enable the defendant [born in England and English Subject] to purchase la[n]ds and to hold all other lands which he might then be entitled to within the state by purchase or descent in fee simple, and to sell and dispose of the same in the same manner as any natural born citizen might do."
Note: Court affirmed lower court ruling affirming defendant right to retain lands. There was no actual court opinion. The quote above was from the prevailing party's argument. Chief Justice Marshall affirmed the lower court ruling, noting "every question arising in the cause had been settled by former decisions." Note, however, the use of the term "natural born citizen" in the general citizenship context, and not in relation to Article II.
|The Aeolus, 16 U.S. 392 (1818)|
Context: Case related to disposition of goods on ship under nonimportation laws.
"After the purchase of a cargo principally calculated for a northern market, and worth not less than $104,311.37 cents, it is committed to a supercargo, to whom no other than verbal instructions are given. This gentleman styles himself a commissioned officer in the imperial navy of Russia, and on his arrival in the United States can speak nothing but broken English. He proves, however, to be a natural born citizen of Massachusetts, who had been absent from his country not more than four years, and who therefore, as may well be supposed, was not long in recovering his vernacular tongue, which we soon find him speaking with as much facility as if he had never been absent from his native state. ..."
Note: Included for completeness (case uses term "natural born citizen").
|Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)|
Context: Case involved question of whether decendants had right to land. A South Carolina "native" died in 1782, with two daughters who were born before the Declaration of Independence. After the British took possession of certain SC land, one daughter, Ann, married a British officer, and thereafter moved to England, had five children, and died. Her children claimed rights to the land that was devised to Ann, under the British-US 1794 peace treaty. The lower court found that the treaty did not apply, because Ann was a US citizen. The Supreme Court reversed, finding that Ann was a British citizen because she was originally born a British Subject, before the revolution and chose, rather than to stay in SC/the US, to marry a brit and move to England.
"It is of importance here that it should be held in view that we are considering political, not moral, obligations. The latter are universal and immutable, but the former must frequently vary according to political circumstances. It is the doctrine of the American court that the issue of the Revolutionary War settled the point, that the American states were free and independent on 4 July, 1776. On that day, Mrs. Shanks was found under allegiance to the State of South Carolina as a natural born citizen to a community, one of whose fundamental principles was that natural allegiance was unalienable, and this principle was at no time relaxed by that state by any express provision, while it retained the undivided control over the rights and liabilities of its citizens."
Note: Case is included for completeness (i.e., it contains the words "natural born citizen" in relation to general citizenship issues).
|Dred Scott v. Sanford, 60 U.S. 19 How. 393 393 (1856)|
Context: Issue in case was whether a free negro of the African race, whose ancestors were brought to this country and sold as slaves, was a "citizen" within the meaning of the Constitution of the United States. In this now infamous case, later abrogated by the 14th Amendment, the Court held that he was not.
"The only matter in issue before the court, therefore, is, whether the descendants of such slaves, when they shall be emancipated, or who are born of parents who had become free before their birth, are citizens of a State in the sense in which the word "citizen" is used in the Constitution of the United States. And this being the only matter in dispute on the pleadings, the court must be understood as speaking in this opinion of that class only, that is, of those persons who are the descendants of Africans who were imported into this country and sold as slaves.
Mr. Justice DANIEL. (Concurring Opinion)
Thus Vattel, in the preliminary chapter to his Treatise on the Law of Nations, says:
"Nations or States are bodies politic, societies of men united together for the purpose of promoting their mutual safety and advantage by the joint efforts of their mutual strength. Such a society has her affairs and her interests, she deliberates and takes resolutions in common, thus becoming a moral person who possesses an understanding and a will peculiar to herself."
By this same writer it is also said:
"The citizens are the members of the civil society, bound to this society by certain duties, and subject to its authority; they equally participate in its advantages. The natives or natural-born citizens are those born in the country of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights."
"I say, to be of the country, it is necessary to be born of a person who is a citizen, for if he be born there of a foreigner, it will be only the place of his birth, and not his country. The inhabitants, as distinguished from citizens, are foreigners who are permitted to settle and stay in the country."
Vattel, Book 1, cap. 19, p. 101.
Mr. Justice CURTIS dissenting.
Of this there can be no doubt. At the time of the ratification of the Articles of Confederation, all free native-born inhabitants of the States of New Hampshire, Massachusetts, New York, New Jersey, and North Carolina, though descended from African slaves, were not only citizens of those States, but such of them as had the other necessary qualifications possessed the franchise of electors, on equal terms with other citizens.
The Supreme Court of North Carolina, in the case of the State v. Manuel, 4 Dev. and Bat. 20, has declared the law of that State on this subject in terms which I believe to be as sound law in the other States I have enumerated, as it was in North Carolina.
"According to the laws of this State," says Judge Gaston, in delivering the opinion of the court,
"all human beings within it, who are not slaves, fall within one of two classes. Whatever distinctions may have existed in the Roman laws between citizens and free inhabitants, they are unknown to our institutions. Before our Revolution, all free persons born within the dominions of the King of Great Britain, whatever their color or complexion, were native-born British subjects -- those born out of his allegiance were aliens. Slavery did not exist in England, but it did in the British colonies. Slaves were not, in legal parlance persons, but property. The moment the incapacity, the disqualification of slavery, was removed, they became persons, and were then either British subjects or not British subjects, according as they were or were not born within the allegiance of the British King. Upon the Revolution, no other change took place in the laws of North Carolina than was consequent on the transition from a colony dependent on a European King to a free and sovereign State. Slaves remained slaves. British subjects in North Carolina became North Carolina freemen. Foreigners, until made members of the State, remained aliens. Slaves, manumitted here, became freemen, and therefore, if born within North Carolina, are citizens of North Carolina, and all free persons born within the State are born citizens of the State. The Constitution extended the elective franchise to every freeman who had arrived at the age of twenty-one and paid a public tax, and it is a matter of universal notoriety that, under it, free persons, without regard to color, claimed and exercised the franchise until it was taken from free men of color a few years since by our amended Constitution."
I can find nothing in the Constitution which, proprio vigore, deprives of their citizenship any class of persons who were citizens of the United States at the time of its adoption, or who should be native-born citizens of any State after its adoption, nor any power enabling Congress to disfranchise persons born on the soil of any State, and entitled to citizenship of such State by its Constitution and laws. And my opinion is that, under the Constitution of the United States, every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States.
I will proceed to state the grounds of that opinion.
The first section of the second article of the Constitution uses the language, "a natural-born citizen." It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth. At the Declaration of Independence, and ever since, the received general doctrine has been in conformity with the common law that free persons born within either of the colonies were subjects of the King that by the Declaration of Independence, and the consequent acquisition of sovereignty by the several States, all such persons ceased to be subjects, and became citizens of the several States, except so far as some of them were disfranchised by the legislative power of the States, or availed themselves, seasonably, of the right to adhere to the British Crown in the civil contest, and thus to continue British subjects....
Among the powers unquestionably possessed by the several States was that of determining what persons should and what persons should not be citizens. It was practicable to confer on the Government of the Union this entire power. It embraced what may well enough, for the purpose now in view, be divided into three parts. First: the power to remove the disabilities of alienage, either by special acts in reference to each individual case or by establishing a rule of naturalization to be administered and applied by the courts. Second: determining what persons should enjoy the privileges of citizenship in respect to the internal affairs of the several States. Third: what native-born persons should be citizens of the United States...
As has been said, the purpose of this clause did not necessarily connect it with citizenship of the United States, even if that were something distinct from citizenship of the several States in the contemplation of the Constitution. This cannot be said of other clauses of the Constitution, which I now proceed to refer to.
"The citizens of each State shall be entitled to all the privileges and immunities of citizens of the several States." Nowhere else in the Constitution is there anything concerning a general citizenship, but here, privileges and immunities to be enjoyed throughout the United States, under and by force of the national compact, are granted and secured. In selecting those who are to enjoy these national rights of citizenship, how are they described? As citizens of each State. It is to them these national rights are secured. The qualification for them is not to be looked for in any provision of the Constitution or laws of the United States. They are to be citizens of the several States, and as such, the privileges and immunities of general citizenship, derived from and guarantied by the Constitution, are to be enjoyed by them. It would seem that, if it had been intended to constitute a class of native-born persons within the States who should derive their citizenship of the United States from the action of the Federal Government, this was an occasion for referring to them. It cannot be supposed that it was the purpose of this article to confer the privileges and immunities of citizens in all the States upon persons not citizens of the United States.
And if it was intended to secure these rights only to citizens of the United States, how has the Constitution here described such persons? Simply as citizens of each State.
But, further: though, as I shall presently more fully state, I do not think the enjoyment of the elective franchise essential to citizenship, there can be no doubt it is one of the chiefest attributes of citizenship under the American Constitutions, and the just and constitutional possession of this right is decisive evidence of citizenship. The provisions made by a Constitution on this subject must therefore be looked to as bearing directly on the question what persons are citizens under that Constitution, and as being decisive, to this extent -- that all such persons as are allowed by the Constitution to exercise the elective franchise, and thus to participate in the Government of the United States, must be deemed citizens of the United States.
Here, again, the consideration presses itself upon us that, if there was designed to be a particular class of native-born persons within the States, deriving their citizenship from the Constitution and laws of the United States, they should at least have been referred to as those by whom the President and House of Representatives were to be elected, and to whom they should be responsible.
One may confine the right of suffrage to white male citizens; another may extend it to colored persons and females; one may allow all persons above a prescribed age to convey property and transact business; another may exclude married women. But whether native-born women, or persons under age, or under guardianship because insane or spendthrifts, be excluded from voting or holding office, or allowed to do so, I apprehend no one will deny that they are citizens of the United States. Besides, this clause of the Constitution does not confer on the citizens of one State, in all other States, specific and enumerated privileges and immunities. They are entitled to such as belong to citizenship, but not to such as belong to particular citizens attended by other qualifications. Privileges and immunities which belong to certain citizens of a State by reason of the operation of causes other than mere citizenship are not conferred. Thus, if the laws of a State require, in addition to citizenship of the State, some qualification for office or the exercise of the elective franchise, citizens of all other States coming thither to reside and not possessing those qualifications cannot enjoy those privileges, not because they are not to be deemed entitled to the privileges of citizens of the State in which they reside, but because they, in common with the native-born citizens of that State, must have the qualifications prescribed by law for the enjoyment of such privileges under its Constitution and laws. It rests with the States themselves so to frame their Constitutions and laws as not to attach a particular privilege or immunity to mere naked citizenship. If one of the States will not deny to any of its own citizens a particular privilege or immunity -- if it confer it on all of them by reason of mere naked citizenship -- then it may be claimed by every citizen of each State by force of the Constitution, and it must be borne in mind that the difficulties which attend the allowance of the claims of colored persons to be citizens of the United States are not avoided by saying that, though each State may make them its citizens, they are not thereby made citizens of the United States, because the privileges of general citizenship are secured to the citizens of each State. The language of the Constitution is "The citizens of each State shall be entitled to all privileges and immunities of citizens in the several States." If each State may make such persons its citizens, they became, as such, entitled to the benefits of this article if there be a native-born citizenship of the United States distinct from a native-born citizenship of the several States.
It may be further objected that, if free colored persons may be citizens of the United States, it depends only on the will of a master whether he will emancipate his slave and thereby make him a citizen. Not so. The master is subject to the will of the State. Whether he shall be allowed to emancipate his slave at all; if so, on what conditions; and what is to be the political status of the freed man depend, not on the will of the master, but on the will of the State, upon which the political status of all its native-born inhabitants depends. Under the Constitution of the United States, each State has retained this power of determining the political status of its native-born inhabitants, and no exception thereto can be found in the Constitution. And if a master in a slaveholding State should carry his slave into a free State, and there emancipate him, he would not thereby make him a native-born citizen of that State, and consequently no privileges could be claimed by such emancipated salve as a citizen of the United States. For whatever powers the States may exercise to confer privileges of citizenship on persons not born on their soil, the Constitution of the United States does not recognise such citizens. As has already been said, it recognises the great principle of public law that allegiance and citizenship spring from the place of birth. It leaves to the States the application of that principle to individual cases. It secured to the citizens of each State the privileges and immunities of citizens in every other State. But it does not allow to the States the power to make aliens citizens, or permit one State to take persons born on the soil of another State, and contrary to the laws and policy of the State where they were born, make them its citizens, and so citizens of the United States. No such deviation from the great rule of public law was contemplated by the Constitution, and when any such attempt shall be actually made, it is to be met by applying to it those rules of law and those principles of good faith which will be sufficient to decide it, and not, in my judgment, by denying that all the free native-born inhabitants of a State who are its citizens under its Constitution and laws are also citizens of the United States.
The conclusions at which I have arrived on this part of the case are:
First. That the free native-born citizens of each State are citizens of the United States.
Second. That, as free colored persons born within some of the States are citizens of those States, such persons are also citizens of the United States.
Third. That every such citizen, residing in any State, has the right to sue and is liable to be sued in the Federal courts, as a citizen of that State in which he resides.
Fourth. That, as the plea to the jurisdiction in this case shows no facts, except that the plaintiff was of African descent, and his ancestors were sold as slaves, and as these facts are not inconsistent with his citizenship of the United States and his residence in the State of Missouri, the plea to the jurisdiction was bad, and the judgment of the Circuit Court overruling it was correct.
|Minor v. Happersett, 88 U.S. 21 Wall. 162 (1874)|
Context: Issue was whether, "since the adoption of the Fourteenth Amendment, a woman who is a citizen of the United States and of the State of Missouri is a voter in that state notwithstanding the provision of the constitution and laws of the state which confine the right of suffrage to men alone."
Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that
"No person except a natural-born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of President,
and that Congress shall have power "to establish a uniform rule of naturalization." Thus, new citizens may be born or they may be created by naturalization.
The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words "all children" are certainly as comprehensive, when used in this connection, as "all persons," and if females are included in the last, they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea.
Note: In this case, the Court clearly equates "native-born" with "natural born" citizen, in the general citizenship context, referencing Article II's use of the term "natural born." It notes varying authority as to whether a person born in the US to noncitizen parents may be a "natural born citizen" - but does not address that issue. What is clear, however, is that the Court recognizes two - and only two - types of citizenship: natural born and naturalized.
|Elk v. Wilkins, 112 U.S. 94 (1884)|
Context: Issue was whether a Native American, born a member of a tribe within the US, who voluntarily separated himself from his tribe and resided off the tribe's land, but was never naturalized was a citizen of the US within the meaning of the 14th Amendment. The Supreme Court held that he was not.
"But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.
The distinction between citizenship by birth and citizenship by naturalization is clearly marked in the provisions of the Constitution, by which
"No person, except a natural born citizen or a citizen of the United States at the time of the adoption of this Constitution shall be eligible to the office of President,"
and "The Congress shall have power to establish an uniform rule of naturalization." Constitution, Article II, Section 1; Article I, Section 8. By the Thirteenth Amendment of the Constitution, slavery was prohibited. The main object of the opening sentence of the Fourteenth Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this Court, as to the citizenship of free negroes (60 U.S. 73; Strauder v. West Virginia, 100 U.S. 303, 306.
This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.
Indians born within the territorial limits of the United States, members of and owing immediate allegiance to one of the Indiana tribes (an alien though dependent power), although in a geographical sense born in the United States, are no more "born in the United States and subject to the jurisdiction thereof," within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations. ..."
Note: Court expressly states that there are two sources of citizenship - "and two sources only" - birth and naturalization. (Note also that aspect of opinion relating to "subject to the jurisdiction thereof" was distinguished in Wong Kim Ark. Additionally, in 1924, all Native Americans were granted US citizenship status by federal statute.
|Boyd v. Nebraska ex Rel. Thayer, 143 U.S. 135 (1892)|
Context: James Boyd was elected as governor of Nebraska and took his oath of office. His qualifications for governorship were challenged on the grounds that he was not a US citizen.
Thayer, the then-current governor retained his position and challenged Boyd's citizenship on the grounds that he was born in Ireland, of non-US citizen parents, and brought to the US (Ohio) as a minor. When he was 15, his father declared his intention to become a US citizen and to renounce allegience to Great Britain and Ireland. However, his father never actually applied to became a citizen until after Boyd had turned 21. (Thayer argued further that the father's naturalization papers could not be found and, thus, he had not been naturalized.) Thayer argued that becasue Boyd had never declared his intention to become a US citizen or applied to become US citizen, he remained a British Subject - and a non-US citizen. Thus, Thayer argued, his election to office was null and void, but he had "usurped and invaded the office of Governor of Nebraska unlawfully, and ha[d] unlawfully undertaken to perform the duties of said office..." (See quotes below for Boyd's response, as described by the Supreme Court.)
The Nebraska Supreme Court held that Boyd was ineligible and reinstated Thayer as governor. The US Supreme Court reversed.
"In United States v. Cruikshank, 92 US 542, 549, Mr. Chief Justice Waite, delivering the opinion of the Court, said:
"Citizens are the members of the political community to which they belong. They are the people who compose the community, and who, in their associated capacity, have established or submitted themselves to the dominion of a government for the promotion of their general welfare and the protection of their individual as well as their collective rights."
There is no attempt in this definition -- which was entirely sufficient for the argument -- to exclude those members of the state who are citizens in the sense of participation of civil rights, though not in the exercise of political functions.
The Constitution provides that no person shall be a representative who has not been "seven years a citizen of the United States," Art. I, Section 2, par. 2; that no person shall be a senator who has not been "nine years a citizen of the United States," Art. I, Section 3, par. 3; that no person shall be eligible to the office of President of the United States "except a natural-born citizen or a citizen of the United States at the time of the adoption of this Constitution," Art. II, Section 1, par. 4; and that "the citizens of each state shall be entitled to all privileges and immunities of citizens in the several states," Art. IV, Section 2, par. 1; and Congress is empowered "to establish an uniform rule of naturalization," Art. I, Section 8, par. 4. But prior to the adoption of the Fourteenth Amendment, there was no definition of citizenship of the United States in the instrument.
Mr. Justice Story, in his Commentaries on the Constitution, says: "Every citizen of a state is ipso facto a citizen of the United States." Sect. 1693. And this is the view expressed by Mr. Rawle in his work on the Constitution, c. 9, pp. 85-86. Mr. Justice Curtis, in [Scott v. Sandford, 60 U.S. at 576 (1856)], expressed the opinion that under the Constitution of the United States "every free person, born on the soil of a state, who is a citizen of that state by force of its Constitution or laws, is also a citizen of the United States." And Mr. Justice Swayne, in [Slaughterhouse Cases, 83 U.S. 126 (1872)] declared that "a citizen of a state is ipso facto a citizen of the United States."...
Manifestly the nationality of the inhabitants of territory acquired by conquest or cession becomes that of the government under whose dominion they pass, subject to the right of election on their part to retain their former nationality by removal or otherwise, as may be provided.
All white persons or persons of European descent who were born in any of the colonies or resided or had been adopted there before 1776 and had adhered to the cause of independence up to July 4, 1776, were by the declaration invested with the privileges of citizenship. [United States v. Ritchie, 58 U.S. 539 (1854)]; Inglis v. Trustees of Sailors' Snug Harbor, 3 Pet. 99. In McIlvaine v. Coxe's Lessee, 4 Cranch 209, it was held that Mr. Coxe had lost the right of election by remaining in New Jersey after she had declared herself a state, and had passed laws pronouncing him to be a member of the new government, but the right itself was not denied. Shanks v. Dupont, 3 Pet. 242.
At the second session of the Twenty-seventh Congress, in the case of David Levy, who had been elected a delegate from the Territory of Florida, where it was alleged that he was not a citizen of the United States, it was held by the House Committee on Elections that "it matters nothing whether the naturalization be effected by act of Congress, by treaty, or by the admission of new states, the provision is alike applicable."
The question turned on whether Mr. Levy's father was an inhabitant of Florida at the time of its transfer to the United States, as the son admitted that he was not a native-born citizen of the United States, but claimed citizenship through that of his father, effected by the treaty while he was a minor. The argument of the report in support of the position that
"no principle has been more repeatedly announced by the judicial tribunals of the country and more constantly acted upon than that the leaning, in questions of citizenship, should always be in favor of the claimant of it,"
and that liberality of interpretation should be applied to such a treaty, is well worthy of perusal. Contested Elections, 1834-35, 2d Sess. 38th Cong. 41.
James E. Boyd was born in Ireland, of Irish parents, in 1834, and brought to this country in 1844 by his father, Joseph Boyd, who settled at Zanesville, Muskingum County, Ohio, and on March 5, 1849, declared his intention to become a citizen of the United States. In 1855, James E. Boyd, who had grown up in the full belief of his father's citizenship, and had been assured by him that he had completed his naturalization by taking out his second papers in 1854, voted in Ohio as a citizen. In August, 1856, he removed to the Territory of Nebraska. In 1857 he was elected and served as County Clerk of Douglas County; in 1864 he was sworn into the military service, and served as a soldier of the federal government to defend the frontier from an attack of Indians; in 1866 he was elected a member of the Nebraska Legislature, and served one session; in 1871 he was elected a member of the convention to frame a state constitution, and served as such; in 1985 he was again elected and served as a member of the convention which framed the present state constitution; in 1880 he was elected and acted as president of the city council of Omaha, and in 1881 and 1885, respectively, was elected mayor of that city, serving in all four years. From 1856 until the state was admitted, and from thence to this election, he had voted at every election, territorial, state, municipal, and national. He had taken, prior to the admission of the state, the oath required by law in entering upon the duties of the offices he had filled, and sworn to support the Constitution of the United States and the provisions of the organic act under which the Territory of Nebraska was created. For over thirty years prior to his election as governor, he has enjoyed all the rights, privileges, and immunities of a citizen of the United States, and of the territory and state, as being in law, as he was in fact, such citizen.
We are of opinion that James E. Boyd is entitled to claim that, if his father did not complete his naturalization before his son had attained majority, the son cannot be held to have lost the inchoate status he had acquired by the declaration of intention, and to have elected to become the subject of a foreign power, but, on the contrary, that the oaths he took and his action as a citizen entitled him to insist upon the benefit of his father's act, and placed him in the same category as his father would have occupied if he had emigrated to the Territory of Nebraska; that in short he was within the intent and meaning, effect and operation, of the acts of Congress in relation to citizens of the territory, and was made a citizen of the United States and of the State of Nebraska under the organic and Enabling Acts and the act of admission.
Note: Case included for completeness (it contains "natural born citizen" term).
|Roff v. Burney, 168 U.S. 218 (1897)|
Context: Case involved issues of Chickasaw Nation citizenship and the interaction between those laws and the US Constitution. The Court uses the term "natural born citizen" only in reciting the facts:
This case comes from the United States Court for the Indian Territory on a certificate as to jurisdiction. The amended complaint filed in that court, November 6, 1893, besides stating a cause of action in favor of the plaintiff against the defendant, alleges the following facts bearing on the question of jurisdiction: that the plaintiff is a natural born citizen of the United States of America; has never renounced his allegiance to said government, and has never taken an oath of allegiance to any foreign government of any kind whatever; that he has ever been and is yet a citizen of the United States; that the Legislature of the Chickasaw Nation, on October 7, 1876, passed the following act ....
The validity of the act withdrawing citizenship from the wife of plaintiff, and the consequent withdrawal from plaintiff of all the rights and privileges of citizenship in the Chickasaw Nation, have been practically determined by the authorities of that nation, and that determination is not subject to correction by any direct appeal from the judgment of the Chickasaw courts. It follows, therefore, that his right as a citizen of the United States to appeal to the federal courts to take jurisdiction of his claims against one of the Chickasaw Nation must be sustained, for it cannot be that a citizen of the United States residing in the Chickasaw Nation can be wronged without an opportunity of redress in some judicial tribunal. We are of opinion, therefore, that the plea to the jurisdiction was wrongfully "
Note: Case is included for completeness (i.e., it contains the words "natural born citizen" in relation to general citizenship issues).
|United States v. Wong Kim Ark, 169 U.S. 649 (1898)|
Context: Plaintiff, born in San Franscisco to Chinese parents, sued after being denied reentry into the US, claiming that he was a "native-born citizen of the United States."
Special Note: The Wong Kim Ark case uses the term "native born" and "natural" born well over a dozen times. It discusses/uses the phrases citizenship by birth, born citizen, foreign birth, and the like dozens more times. We have excerpted most, but not all of the direct use of the term "natural born" or "native born" citizenship here, to provide a representative sampling. Please read the full case to find all references. To find all references to natural born, do CTRL-F and type "natural born" - these two words will be highlighted throughout the opinion for easy reference.
"The question presented by the record is whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution...
The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States."
The Constitution nowhere defines the meaning of these words, either by way of inclusion or of exclusion, except insofar as this is done by the affirmative declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States." In this as in other respects, it must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution. ...
In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that." And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall.88 U.S. 167.
II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
In Udny v. Udny, (1869) L.R. 1 H.L. Sc. 441, the point decided was one of inheritance, depending upon the question whether the domicil of the father was in England or in Scotland, he being in either alternative a British subject. Lord Chancellor Hatherley *** evidently used the word "citizen" not as equivalent to "subject," but rather to "inhabitant," and had no thought of impeaching the established rule that all persons born under British dominion are natural-born subjects.
Mr. Dicey, in his careful and thoughtful Digest of the Law of England with reference to the Conflict of Laws, published in 1896, states the following propositions, his principal rules being printed below in italics:
"'British subject' means any person who owes permanent allegiance to the Crown. 'Permanent' allegiance is used to distinguish the allegiance of a British subject from the allegiance of an alien who, because he is within the British dominions, owes 'temporary' allegiance to the Crown. 'Natural-born British subject' means a British subject who has become a British subject at the moment of his birth.' 'Subject to the exceptions hereinafter mentioned, any person who (whatever the nationality of his parents) is born within the British dominions is a natural-born British subject.
This rule contains the leading principle of English law on the subject of British nationality."
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore 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.
In Inglis v. Sailors' Snug Harbor (1833), 3 Pet. 99,....Mr. Justice Thompson, speaking for the majority of the court, said:
"It is universally admitted, both in the English courts and in those of our own country, that all persons born within the Colonies of North America, whilst subject to the Crown of Great Britain, are natural-born British subjects."
The English statute of 11 & 12 Will. III (1700). c. 6, entitled "An act to enable His Majesty's natural-born subjects to inherit the estate of their ancestors, either lineal or collateral, notwithstanding their father or mother were aliens," enacted that "all and every person or persons, being the King's natural-born subject or subjects, within any of the King's realms or dominions," might and should thereafter lawfully inherit and make their titles by descent to any lands
"from any of their ancestors, lineal or collateral, although the father and mother, or father or mother, or other ancestor, of such person or persons, by, from, through or under whom"
title should be made or derived, had been or should be "born out of the King's allegiance, and out of is Majesty's realms and dominions," as fully and effectually, as if such parents or ancestors "had been naturalized or natural-born subject or subjects within the King's dominions." 7 Statutes of the Realm, 90. It may be observed that, throughout that statute, persons born within the realm, although children of alien parents, were called "natural-born subjects." As that statute included persons born "within any of the King's realms or dominions," it, of course, extended to the Colonies, and, not having been repealed in Maryland, was in force there. In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were "native-born citizens of the United States," and, without such assumption, the case would not have presented the question decided by the court ...
Again, in [Lessee of Levy v. McCartee, 31 U.S. 6 Pet. 102 102 (1832)], which concerned a descent cast since the American Revolution, in the State of New York, ...this court, speaking by Mr. Justice Story, held that the case must rest for its decision exclusively upon the principles of the common law, and treated it as unquestionable that, by that law, a child born in England of alien parents was a natural-born subject, quoting the statement of Lord Coke ... and saying that such a child "was a native-born subject, according to the principles of the common law stated by this court in McCreery v. Somervlle, 9 Wheat. 354."
In Dred Scott v. Sandford, (1857) 19 How. 393, Mr. Justice Curtis said:
"The first section of the second article of the Constitution uses the language, 'a natural-born citizen.' It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth."
In United States v. Rhodes (1866), Mr. Justice Swayne, sitting in the Circuit Court, said:
"All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution."
And [Kent] elsewhere says:
"And if, at common law, all human beings born within the ligeance of the King, and under the King's obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land."
Mr. Binney, in the second edition of a paper on the Alienigenae of the United States, printed in pamphlet at Philadelphia, with a preface bearing his signature and the date of December 1, 1853, said:
"The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens o the United States are, with the exceptions before mentioned,"
(namely, foreign-born children of citizens, under statutes to be presently referred to)
"such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States."
"The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle."
IV. It was contended by one of the learned counsel for the United States that the rule of the Roman law, by which the citizenship of the child followed that of the parent, was the true rule of international law, as now recognized in most civilized countries, and had superseded the rule of the common law, depending on birth within the realm, originally founded on feudal considerations.
But at the time of the adoption of the Constitution of the United States in 1789, and long before, it would seem to have been the rule in Europe generally, as it certainly was in France, that, as said by Pothier, "citizens, true and native-born citizens, are those who are born within the extent of the dominion of France," and
"mere birth within the realm gives the rights of a native-born citizen, independently of the origin of the father or mother, and of their domicil;"
The later modifications of the rule in Europe rest upon the constitutions, laws or ordinances of the various countries, and have no important bearing upon the interpretation and effect o the Constitution of the United States. The English Naturalization Act of 33 Vict. (1870) c. 14, and the Commissioners' Report of 1869, out of which it grew, both bear date since the adoption of the Fourteenth Amendment of the Constitution; and, as observed by Mr. Dicey, that act has not affected the principle by which any person who, whatever the nationality of his parents, is born within the British dominions, acquires British nationality at birth and is a natural-born British subject. Dicey, Conflict of Laws 41. At the time of the passage of that act, although the tendency on the continent of Europe was to make parentage, rather than birthplace, the criterion of nationality, and citizenship was denied to the native-born children of foreign parents in Germany, Switzerland, Sweden and Norway, yet it appears still to have been conferred upon such children in Holland, Denmark and Portugal, and, when claimed under certain specified conditions, in France, Belgium, Spain, Italy, Greece and Russia. Cockburn on Nationality, 14-21.
There is, therefore, little ground for the theory that, at the time of the adoption of the Fourteenth Amendment of the Constitution of the United States, there as any settled and definite rule of international law, generally recognized by civilized nations, inconsistent with the ancient rule of citizenship by birth within the dominion.
It has been pertinently observed that, if the statute of Edward III had only been declaratory of the common law, the subsequent legislation on the subject would have been wholly unnecessary. Cockburn on Nationality 9. By .... "An act for the naturalization of children of His Majesty's subjects born in foreign countries during the late troubles," all persons who, at any time between June 14, 1641, and March 24, 1660, "were born out of His Majesty's dominions, and whose fathers or mothers were natural-born subjects of this realm" were declared to be natural-born subjects. By the statute of 7 Anne, (1708) c. 5, § 3, "the children of all natural-born subjects, born out of the ligeance of Her Majesty, her heirs and successors" -- explained by the statute of 4 Geo. II, (1731) c. 21, to mean all children born out of the ligeance of the Crown of England
"whose fathers were or shall be natural-born subjects of the Crown of England, or of Great Britain, at the time of the birth of such children respectively . . . . shall be deemed, adjudged and taken to be natural-born subjects of this kingdom, to all intents, constructions and purposes whatsoever."
That statute was limited to foreign-born children of natural-born subjects,....
In the appendix to their report are collected many such cases in which the British Government declined to interpose, the reasons being most clearly brought out in a dispatch of March 13, 1858, from Lord Malmesbury, the Foreign Secretary, to the British Ambassador at Paris, saying:
"It is competent to any country to confer by general or special legislation the privileges of nationality upon those who are born out of its on territory; but it cannot confer such privileges upon such persons as against the country of their birth, when they voluntarily return to and reside therein. Those born in the territory of a nation are (as a general principle) liable when actually therein to the obligations incident to their status by birth. Great Britain considers and treats such persons as natural-born subjects, and cannot therefore deny the right of other nations to do the same. But Great Britain cannot permit the nationality of the children of foreign parents born within her territory to be questioned.".
In the act of 1790, the provision as to foreign-born children of American citizens was as follows:
"The children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural-born citizens: Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States."
That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: "Allegiance and protection are, in this connection" (that is, in relation to citizenship),
"reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens."
[Minor v. Happersett, 88 U.S. 166-68]. The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.
The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin's Case, 7 Rep. 6a, "strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;" and his child, as said by Mr. Binney in his essay before quoted, "if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle." It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides .....
DISSENT: MR. CHIEF JUSTICE FULLER, with whom concurred MR. JUSTICE HARLAN dissenting.
And it is this rule, pure and simple, which it is asserted determined citizenship of the United States during the entire period prior to the passage of the act of April 9, 1866, and the ratification of the Fourteenth Amendment, and governed the meaning of the words "citizen of the United States" and "natural-born citizen" used in the Constitution as originally framed and adopted. I submit that no such rule obtained during the period referred to, and that those words bore no such construction; that the act of April 9, 1866, expressed the contrary rule; that the Fourteenth Amendment prescribed the same rule as the act, and that, if that amendment bears the construction now put upon it, it imposed the English common law rule on this country for the first time, and made it "absolute and unbending" just as Great Britain was being relieved from its inconveniences.
Before the Revolution, the view of the publicists had been thus put by Vattel:
"The natives, or natural-born citizens, are those born in the country of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this in consequence of what it owes to its own preservation, and it is presumed as matter of course that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children, and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country."
Book I, c.19, § 212.
The Royal Commission to inquire into the Laws of Naturalization and Allegiance was created May 21, 1868, and, in their report, the Commissioners, among other things, say:
"The allegiance of a natural-born British subject is regarded by the Common Law as indelible. We are of opinion that this doctrine of the Common Law is neither reasonable nor convenient. It is at variance with those principles on which the rights and duties of a subject should be deemed to rest; it conflicts with that freedom of action which is now recognized as most conducive to the general good, as well as to individual happiness and prosperity, and it is especially inconsistent with the practice of a State which allows to its subjects absolute freedom of emigration.
However, the Commission, by a majority, declined to recommend the abandonment of the rule altogether, though "clearly of opinion that it ought not to be, as it now is, absolute and unbending;" but recommended certain modifications which were carried out in subsequent legislation.
The language of the statute of 7 Anne, c. 5, is quite different in providing that
"the children of all natural-born subjects born out of the ligeance of Her Majesty, her heirs and successors, shall be deemed, adjudged and taken to be natural-born subjects of this kingdom to all intents, constructions and purposes whatsoever."
In my judgment, the children of our citizens born abroad were always natural-born citizens from the standpoint of this Government. If not, and if the correct view is that they were aliens but collectively naturalized under the act of Congress which recognized them as natural-born, then those born since the Fourteenth Amendment are not citizens at all, unless they have become such by individual compliance with the general laws for the naturalization of aliens, because they are not naturalized "in the United States."
By the fifth clause of the first section of article two of the Constitution, it is provided that:
"No person except a natural-born citizen, or a citizen of the United States, at the time of the adoption of the Constitution, shall be eligible to the office of President; neither shall any person be eligible to that office who shall not have attained to the age of thirty-five years, and been fourteen years a resident within the United States."
In the convention, it was, says Mr. Bancroft,
"objected that no number of years could properly prepare a foreigner for that place; but as men of other lands had spilled their blood in the cause of the United States, and had assisted at every stage of the formation of their institutions, on the seventh of September, it was unanimously settled that foreign-born residents of fourteen years who should be citizens at the time of the formation of the Constitution are eligible to the office of President."
2 Bancroft Hist. U.S. Const. 193.
Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.
Mr. Justice Curtis, in [Dred Scott v. Sanford, 60 U.S. 576], expressed the opinion that, under the Constitution of the United States
"every free person born on the soil of a State, who is a citizen of that State by force of its Constitution or laws, is also a citizen of the United States."
And he said:
"Among the powers unquestionably possessed by the several States was that of determining what persons should and what persons should not be citizens. It was practicable to confer on the Government of the Union this entire power. It embraced what may, well enough for the purpose now in view, be divided into three parts. First: The power to remove the disabilities of alienage, either by special acts in reference to each individual case or by establishing a rule of naturalization to be administered and applied by the courts. Second: Determining what persons should enjoy the privileges of citizenship, in respect to the internal affairs of the several States. Third: What native-born persons should be citizens of the United States."
Note: Here, again, the Court clearly equates a "born US citizen" with a "natural born American citizen," - many times throughout the opinion, finding ultimately that a child born in the US - even if to Chinese subjects - is a US citizen. Given the context of the full opinion, and the repeated references to the two types of citizenship - natural born and naturalized - the conclusion that Wong Kim Ark was, per the court, a "natural born" US citizen is inescapable.
|Maxwell v. Dow, 176 U.S. 581 (1900)|
Context: This was a habeas case, brought by a defendant claiming denial of constittuional rights because, among other things, he was not indicted by a grand jury and was tried/convicted by a jury of eight people. In describing the facts of the case, the Supreme Court said:
"In September, 1898, [defendant] was tried before a jury composed of but eight jurors, and convicted and sentenced to imprisonment in the state prison for eighteen years, and, since that time, has been confined in prison undergoing the sentence of the state court.
In May, 1899, he applied to the Supreme Court of the State for a writ of habeas corpus, and alleged in his sworn petition that he was a natural-born citizen of the United States, and that his imprisonment was unlawful because he was prosecuted under an information instead of by indictment by a grand jury, and was tried by a jury composed of eight instead of twelve jurors. ..."
Note: Case is included for completeness (case uses term "natural born citizen")
|Swafford v. Templeton, 185 U.S. 487 (1902)|
Context: Case involved election officials refusal to permit plaintiff to vote in general election. The Court uses the term "natural born citizen" only in reciting the facts:
The declaration expressly charged that the plaintiff was a white man, a natural-born citizen of the United States, and was such on November 6, 1900, and had been for many years prior thereto a resident and duly qualified voter in the County of Rhea, State of Tennessee, and, as such, entitled, under the Constitution and laws of the United States and of the state, to vote for members of Congress, and that he had been illegally deprived of such right by the defendants, when serving as election officers at an election held on November 6, 1900, in the district of the residence of the plaintiff, in said County of Rhea.
Note: Case is included for completeness (i.e., it contains the words "natural born citizen").
|Kwock Jan Fat v. White, 253 U.S. 454 (1920)|
Context: Case involved a person who claimed to be born in America to Chinese parents - but whom Immigration Officials believed was actually another person, who had moved to the US as a child. Although Immigration pre-approved citizenship status before Jan Fat took a trip to China, they revoked that decision while he was gone, and he was denied reentry as a citizen under the Chinese Exclusion Laws. Their decision was upheld in the courts, until the Supreme Court reversed the decision because the immigration officials failed to properly record alleged testimony from witnesses disputing his identity.
"It is not disputed that if petitioner is the son of Kwock Tuck Lee [Chinese] and his wife, Tom Ying Shee [also Chinese], he was born to them when they were permanently domiciled in the United States, is a citizen thereof, and is entitled to admission to the country. United States v. Wong Kim Ark, 169 U.S. 649. But, while it is conceded that he is certainly the same person who, upon full investigation, was found, in March, 1915, by the then Commissioner of Immigration, to be a natural born American citizen, the claim is that that Commissioner was deceived, and that petitioner is really Lew Suey Chong, who was admitted to this country in 1909 as a son of a Chinese merchant, Lew Wing Tong, of Oakland, California.
For failure to preserve such a record for the information not less of the Commissioner of Immigration and of the Secretary of Labor than for the courts, the judgment in this case must be reversed. It is better that many Chinese immigrants should be improperly admitted than that one natural born citizen of the United States should be permanently excluded from his country."
Note: Here, again, the Court clearly equates a "born US citizen" with a "natural born American citizen," and notes that it is undisputed, pursuant to Wong Kim Ark, that a child born in the US - even if to Chinese subjects - is a natural born citizen.
|Perkins v. Elg, 307 U.S. 325 (1939)|
Context: Issue was whether "The question is whether the plaintiff, who was born in the US to Swedish parents, then naturalized, lost her citizenship because she returned ot Sweden as a child and her parents resumed their citizenship there, even though she returned to the US upon attaining majority, intendeng to remain in the US and maintain her US citizenship.
"Miss Elg was born in Brooklyn, New York, on October 2, 1907. Her parents, who were natives of Sweden, emigrated to the United States sometime prior to 1906, and her father was naturalized here in that year. In 1911, her mother took her to Sweden, where she continued to reside until September 7, 1929. Her father went to Sweden in 1922, and has not since returned to the United States. In November, 1934, he made a statement before an American consul in Sweden that he had voluntarily expatriated himself for the reason that he did not desire to retain the status of an American citizen and wished to preserve his allegiance to Sweden.
First. On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866, 14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U. S. 649. In a comprehensive review of the principles and authorities governing the decision in that case -- that a child born here of alien parentage becomes a citizen of the United States -- the Court adverted to the
"inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship."
United States v. Wong Kim Ark, supra, p. 668. As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality. ...And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law on the resumption of that citizenship by her parents does not compel the conclusion that she has lost her own citizenship acquired under our law. As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles.
Second. It has long been a recognized principle in this country that, if a child born here is taken during minority to the country of his parents' origin, where his parents resume their former allegiance, he does not thereby lose his citizenship in the United States provided that, on attaining majority he elects to retain that citizenship and to return to the United States to assume its duties.
This principle was clearly stated by Attorney General Edwards Pierrepont in his letter of advice to the Secretary of State Hamilton Fish, in Steinkauler's Case, 15 Op.Atty.Gen. 15. The facts were these: [Prussian father had child in St. Louis/USA. Four years later, father returned to Germany with child. When child turned 21, he was drafted. Father requested US intervention on ground that "son was a native citizen of the United States," but declined to have son return to US.] On reviewing the pertinent points in the case, including the Naturalization Treaty of 1868 with North Germany, 15 Stat. 615, the Attorney General reached the following conclusion:
"Young Steinkauler is a native-born American citizen. There is no law of the United States under which his father or any other person can deprive him of his birthright. He can return to America at the age of twenty-one, and in due time, if the people elect, he can become President of the United States; .... "
The court below, properly recognizing the existence of an actual controversy with the defendants (Aetna Life Ins. Co. v. Haworth, 300 U. S. 227), declared Miss Elg "to be a natural born citizen of the United States," and we think that the decree should include the Secretary of State as well as the other defendants. The decree in that sense would in no way interfere with the exercise of the Secretary's discretion with respect to the issue of a passport, but would simply preclude the denial of a passport on the sole ground that Miss Elg had lost her American citizenship."
Note: Here, again, the Court clearly equates a "born US citizen" with "native born" and "natural born" citizenship.
|Baumgartner v. United States, 322 U.S. 665 (1944)|
Context: Case involved situation where US sought to revoke naturalized citizenship status to a person, on grounds of fraud and illegal procurement - i.e., the US claimed that Baumgartner did not truly renounce his foreign allegience.
"And so we conclude that the evidence as to Baumgartner's attitude after 1932 affords insufficient proof that, in 1932, he had knowing reservations in forswearing his allegiance to the Weimar Republic and embracing allegiance to this country so as to warrant the infliction of the grave consequences involved in making an alien out of a man ten years after he was admitted to citizenship. The evidence in the record before us is not sufficiently compelling to require that we penalize a naturalized citizen for the expression of silly or even sinister-sounding views which native-born citizens utter with impunity. The judgment must accordingly be reversed, and the case remanded "
"American citizenship is not a right granted on a condition subsequent that the naturalized citizen refrain in the future from uttering any remark or adopting an attitude favorable to his original homeland or those there in power, no matter how distasteful such conduct may be to most of us. He is not required to imprison himself in an intellectual or spiritual straightjacket, nor is he obliged to retain a static mental attitude. Moreover, he does not lose the precious right of citizenship because he subsequently dares to criticize his adopted government in vituperative or defamatory terms. It obviously is more difficult to conform to the standard set forth in the Schneiderman case by mere proof of a state of mind subsequent to naturalization than by proof of facts existing prior to or at the time of naturalization. But that does not excuse a failure to meet that standard. The naturalized citizen has as much right as the natural born citizen to exercise the cherished freedoms of speech, press, and religion, and, without "clear, unequivocal, and convincing" proof that he did not bear or swear true allegiance to the United States at the time of naturalization, he cannot be denaturalized. Proper realization of that principle makes clear the error of setting aside petitioner's naturalization certificate on the basis of the facts adduced in this proceeding."
Note: Here, again, the Court recognizes two (and only two) types of citizenship - naturalized and natural born - and uses the term "natural born" in the general citizenship context, not particular to Article II.
|Oyama v. California, 332 U.S. 633 (1948)|
Context: This case involved the California Alien Land Law, under which the California Supreme Court held that land recorded in the name of a minor US citizen would escheat to the state because the land had been paid for by his father, a Japanese subject ineligible for naturalization. The Supreme Court held that law unconstitutional in this case: discrimination against a US citizen (the son) on the basis of his racial descent (his father), was not justified.
Concurring Opinion: MR. JUSTICE MURPHY, with whom MR. JUSTICE RUTLEDGE joins, concurring.
"Second. It is said that eligibility for American citizenship is inherently related to loyal allegiance and desire to work for the success and welfare of the state, which has a vital interest in the farm lands within its borders. Hence, it may limit the ownership and use of farms to those who are or who may become citizens.
Such a claim is outlawed by reality. In 1940, there were 4,741,971 aliens residing in the continental United States, of whom 48,158 were ineligible for naturalization. ... Many of these ineligible aliens have long been domiciled in this country. They have gone into various businesses and professions. They have established homes and reared children, who have the status of American citizens by virtue of their birth in this country. And they have entered into the social and religious fabrics of their communities. Such ineligible aliens thus have a vital interest in the economic, social and political wellbeing of the states in which they reside, and their loyalty has been proved many times. ... The fact that they are ineligible for citizenship does not, by itself, make them incapable of forming these ties and interests. Nor does their ineligibility necessarily preclude them from possessing the loyalty and allegiance which the state rightly desires.
Loyalty and the desire to work for the welfare of the state, in short, are individual, rather than group, characteristics. An ineligible alien may or may not be loyal; he may or may not wish to work for the success and welfare of the state or nation. But the same can be said of an eligible alien or a natural born citizen. It is the essence of naivete to insist that these desirable characteristics are always lacking in a racially ineligible alien, whose ineligibility may be remedied tomorrow by Congress. ... These are matters which depend upon factors far more subtle and penetrating than the prevailing naturalization standards. As this Court has said, "Loyalty is a matter of the heart and mind, not of race, creed, or color." Ex parte Endo, 323 U.S. 283, 302. And so racial eligibility for citizenship is an irrational basis for determining who is loyal or who desires to work for the welfare of the state.
MR. JUSTICE REED, with whom MR. JUSTICE BURTON joins, dissenting.
The Court's opinion assumes arguendo that the California Alien Land Laws are constitutional. As we read the opinion, it holds that the Alien Land Laws of California, as here applied, discriminate in an unconstitutional manner against an American citizen -- a son born in the United States to resident parents of Japanese nationality. From this holding we dissent.
Note: Included for completeness (case uses term "natural born citizen"; and interchanges "natural born" with "citizens by birth").
|Klapprott v. United States, 335 U.S. 601 (1949)|
Context: Plaintiff was naturalized US citizen. Nine years after naturalization, goverment sought to revoke citizenship on grounds that citizenship was fraudulently obtained because plaintiff remained loyal to Germany. The lower court entered a default judgment against him (he was in prison at the time). Four years later, while still a prisoner, he sought to have the default judgement set aside. The lower courts denied the request, but the Supreme Court reversed, ordering the district court to grant a hearing on the issue.
Concuring Opinion: MR. JUSTICE RUTLEDGE, with whom MR. JUSTICE MURPHY agrees, concurring in the result.
"To treat a denaturalization proceeding, whether procedurally or otherwise, as if it were nothing more than a suit for damages for breach of contract or one to recover overtime pay ignores, in my view, every consideration of justice and of reality concerning the substance of the suit and what is at stake.
To take away a man's citizenship deprives him of a right no less precious than life or liberty -- indeed of one which today comprehends those rights and almost all others. [FN1 To lay upon the citizen the punishment of exile for committing murder, or even treason, is a penalty thus far unknown to our law and, at most, but doubtfully within Congress' power. U.S.Const., Amend. VIII. Yet, by the device or label of a civil suit, carried forward with none of the safeguards of criminal procedure provided by the Bill of Rights, this most comprehensive and basic right of all, so it has been held, can be taken away, and in its wake may follow the most cruel penalty of banishment.
No such procedures could strip a natural-born citizen of his birthright or lay him open to such a penalty. I have stated heretofore the reasons why I think the Constitution does not countenance either that deprivation or the ensuing liability to such a punishment for naturalized citizens. Schneiderman v. United States, 320 U.S. 118, concurring opinion 320 U.S. 165; Knauer v. United States, 328 U.S. 654, dissenting opinion 328 U.S. 675.
This case, however, presents squarely the issue whether, beyond any question of burden or weight of proof, the ordinary civil procedures can suffice to take away the naturalized citizen's status and lay him open to permanent exile, with all the fateful consequences following for himself and his family, often, as in this case, native-born Americans. The question in its narrower aspect is indeed whether those consequences can be inflicted without any proof whatever.
If, in deference to the Court's rulings, we are to continue to have two classes of citizens in this country, one secure in their status and the other subject at every moment to its loss by proceedings not applicable to the other class, cf. Schneiderman v. United States, supra, concurring opinion at 320 U.S. 167, Knauer v. United States, supra, dissenting opinion at 328 U.S. 678, I cannot assent to the idea that the ordinary rules of procedure in civil causes afford any standard sufficient to safeguard the status given to naturalized citizens. If citizenship is to be defeasible for naturalized citizens other than by voluntary renunciation or other causes applicable to native-born citizens, [FN4] the defeasance, it seems to me, should be surrounded by no lesser protections than those securing all citizens against conviction for crime. Regardless of the name given it, the denaturalization proceeding, when it is successful, has all the consequences and effects of a penal or criminal conviction except that the ensuing liability to deportation is a greater penalty than is generally inflicted for crime. ***"
Note: Here, again, the concurring Justices recognize recognize two (and only two) types of citizenship - naturalized and natural born - and uses the term "natural born" in the general citizenship context, not particular to Article II.
|McGrath v. Kristensen, 340 U.S. 162 (1950)|
Context: Danish citizen came to the US on a temporary visa. The outbreak of WWII prevented him from returning, and he obtained successive extentions of his visa. In 1942, still in the US, he applied for an exemption from military service under the STSA. Issue was whether such application made him thereafter ineligible for natrualization or deportation suspension.
"[In Perkins v. Elg, we] and reversed the Court of Appeals on this point, saying,
"The court below, properly recognizing the existence of an actual controversy with the defendants (Aetna Life Ins. Co. of Hartford v. Haworth, 300 U. S. 227), declared Miss Elg 'to be a natural born citizen of the United States,' and we think that the decree should include the Secretary of State, as well as the other defendants. The decree in that sense would in no way interfere with the exercise of the Secretary's discretion with respect to the issue of a passport, but would simply preclude the denial of a passport on the sole ground that Miss Elg had lost her American citizenship."
Note: Case is included for completeness (i.e., it contains the words "natural born citizen" although only in quoting prior case).
|Schneider v. Rusk, 377 U.S. 163 (1964)|
Context: Case involved person born in Germany, who came to the US and "acquired derivative American citizenship." She went to college abroad, married a German, and lived in Germany. The State Department denied her a passport, certifying that she had lost her American citizenship due to her her continuous residence for more than three years in her country of origin, under the Immigration and Nationality Act of 1952. The lower court affirmed the State Department's ruling, but the Supreme Court reversed the decisin, finding that the applicable law was discriminatory and violated due process under the Fifth Amendment, given that no similar restriction applied to native-born citizens.
"We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity, and are coextensive. The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II, § 1.
While the rights of citizenship of the native born derive from § 1 of the Fourteenth Amendment and the rights of the naturalized citizen derive from satisfying, free of fraud, the requirements set by Congress, the latter, apart from the exception noted,
"becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it so far as respects the individual."
This statute proceeds on the impermissible assumption that naturalized citizens as a class are less reliable, and bear less allegiance to this country than do the native born. This is an assumption that is impossible for us to make. Moreover, while the Fifth Amendment contains no equal protection clause, it does forbid discrimination that is "so unjustifiable as to be violative of due process." Bolling v. Sharpe, 347 U.S. 497. A native-born citizen is free to reside abroad indefinitely without suffering loss of citizenship. The discrimination aimed at naturalized citizens drastically limits their rights to live and work abroad in a way that other citizens may. It creates indeed a second-class citizenship. Living abroad, whether the citizen be naturalized or native born, is no badge of lack of allegiance, and in no way evidences a voluntary renunciation of nationality and allegiance. It may indeed be compelled by family, business, or other legitimate reasons."
Note: Here, again, the Court clearly equates a "native born" citizen with a "natural born" citizen under Article II - and, again, recognizes only two types of citizenship: natural/native-born, and naturalized.
|Rogers v. Bellei, 401 U.S. 815 (1971)|
Context: Plaintiff challenged constitutionality of immigration law providing that person who acquires US citizenship by virtue of having been born abroad to at least one US parent and who meets certain residency requirements loses US citizenship unless s/he resides in the US for five years between the age of 14 and 28. Lower court held the law unconstitutional.
The Supreme Court, in a 5-4 decision reversed, finding that persons born abroad to US parents do not come within the Fourteenth Amendment's definition of citizens as those "born or naturalized in the United States," and, therefore, are not entitled to 14th Amendment protections. In other words, over a strong dissent, the Supreme Court created a third "type" of non-constitutional citizenship - applicable to children born abroad to US citizen parents.
"The statutes culminating in § 301 merit review:
1. The very first Congress, at its Second Session, proceeded to implement its power, under the Constitution's Art. I, § 8, cl. 4, to "establish an uniform Rule of Naturalization" by producing the Act of March 26, 1790, 1 Stat. 103. That statute, among other things, stated,
"And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States. . . ."
***continued discussion of subsequent statutes, but none use "natural born citizen" term***
"The central fact in our weighing of the plaintiff's claim to continuing and therefore current United States citizenship is that he was born abroad. He was not born in the United States. He was not naturalized in the United States. And he has not been subject to the jurisdiction of the United States. All this being so, it seems indisputable that the first sentence of the Fourteenth Amendment has no application to plaintiff Bellei. He simply is not a "Fourteenth Amendment first sentence" citizen. His posture contrasts with that of Mr. Afroyim, who was naturalized in the United States, and with that of Mrs. Schneider, whose citizenship was derivative by her presence here and by her mother's naturalization here.
The plaintiff's claim thus must center in the statutory power of Congress and in the appropriate exercise of that power within the restrictions of any pertinent constitutional provisions other than the Fourteenth Amendment's first sentence.
The reach of congressional power in this area is readily apparent:
1. Over 70 years ago, the Court, in an opinion by Mr. Justice Gray, reviewed and discussed early English statutes relating to rights of inheritance and of citizenship of persons born abroad of parents who were British subjects. United States v. Won Kim Ark, [169 U.S. 649 ] (1898). The Court concluded that "naturalization by descent" was not a common law concept, but was dependent, instead, upon statutory enactment. .... Later, Mr. Chief Justice Taft, speaking for a unanimous Court, referred to this "very learned and useful opinion of Mr. Justice Gray," and observed
"that birth within the limits of the jurisdiction of the Crown, and of the United States, as the successor of the Crown, fixed nationality, and that there could be no change in this rule of law except by statute. . . ."
Weedin v. Chin Bow, 274 U.S. at . He referred to the cited English statutes, and stated, "These statutes applied to the colonies before the War of Independence."
We thus have an acknowledgment that our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.
2. The Constitution as originally adopted contained no definition of United States citizenship. ....
In any event, although one might have expected a definition of citizenship in constitutional terms, none was embraced in the original document, or, indeed, in any of the amendments adopted prior to the War Between the States.
3. Apart from the passing reference to the "natural born Citizen" in the Constitution's Art. II, § 1, cl. 5, we have, in the Civil Rights Act of April 9, 1866, 14 Stat. 27, the first statutory recognition and concomitant formal definition of the citizenship status of the native born:
"[A]ll 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. . . ."
This, of course, found immediate expression in the Fourteenth Amendment, adopted in 1868, with expansion to "[a]ll persons born or naturalized in the United States. . . ." As has been noted above, the amendment's "undeniable purpose" was "to make citizenship of Negroes permanent and secure," and not subject to change by mere statute. Afroyim v. Rusk, 387 U.S. at . See H. Flack, Adoption of the Fourteenth Amendment 88-94 (1908).
Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was "declaratory of existing rights, and affirmative of existing law," so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U.S. at . Then follows a most significant sentence:
"But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization."
Thus, at long last, there emerged an express constitutional definition of citizenship. But it was one restricted to the combination of three factors, each and all significant: birth in the United States, naturalization in the United States, and subjection to the jurisdiction of the United States. The definition obviously did not apply to any acquisition of citizenship by being born abroad of an American parent. That type, and any other not covered by the Fourteenth Amendment, was necessarily left to proper congressional action."
MR. JUSTICE BLACK, with whom MR. JUSTICE DOUGLAS and MR. JUSTICE MARSHALL join, dissenting.
"The Court today holds that the Citizenship Clause of the Fourteenth Amendment has no application to Bellei. The Court first notes that Afroyim was essentially a case construing the Citizenship Clause of the Fourteenth Amendment. Since the Citizenship Clause declares that: "All persons born or naturalized in the United States . . . are citizens of the United States...," the Court reasons that the protections against involuntary expatriation declared in Afroyim do not protect all American citizens, but only those "born or naturalized in the United States." Afroyim, the argument runs, was naturalized in this country, so he was protected by the Citizenship Clause, but Bellei, since he acquired his American citizenship at birth in Italy as a foreign-born child of an American citizen, was neither born nor naturalized in the United States, and, hence, falls outside the scope of the Fourteenth Amendment guarantees declared in Afroyim. One could hardly call this a generous reading of the great purposes the Fourteenth Amendment was adopted to bring about.
While conceding that Bellei is an American citizen, the majority states: "He simply is not a Fourteenth Amendment first sentence' citizen." Therefore, the majority reasons, the congressional revocation of his citizenship is not barred by the Constitution. I cannot accept the Court's conclusion that the Fourteenth Amendment protects the citizenship of some Americans, and not others.
Indeed, the concept of a hierarchy of citizenship, suggested by the majority opinion, was flatly rejected in Schneider v. Rusk, 377 U.S. 163 (1964):
"We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive."
Id. at . The Court there held that Congress could not deprive Mrs. Schneider of her citizenship, which she, like Mr. Bellei in the present case, acquired derivatively through her citizen mother. Consequently, the majority, in its rush to overrule Afroyim, must also, in effect, overrule Schneider as well.
Under the view adopted by the majority today, all children born to Americans while abroad would be excluded from the protections of the Citizenship Clause, and would instead be relegated to the permanent status of second-class citizenship, subject to revocation at the will of Congress. The Court rejected such narrow, restrictive, and super-technical interpretations of the Citizenship Clause when it held in Afroyim that that Clause "was designed to, and does, protect every citizen of this Nation. . . ." 387 U.S. at .
Afroyim's broad interpretation of the scope of the Citizenship Clause finds ample support in the language and history of the Fourteenth Amendment. Bellei was not "born . . . in the United States," but he was, constitutionally speaking, "naturalized in the United States." Although those Americans who acquire their citizenship under statutes conferring citizenship on the foreign-born children of citizens are not popularly thought of as naturalized citizens, the use of the word "naturalize" in this way has a considerable constitutional history. Congress is empowered by the Constitution to "establish an uniform Rule of Naturalization," Art. I, § 8. Anyone acquiring citizenship solely under the exercise of this power is, constitutionally speaking, a naturalized citizen. The first congressional exercise of this power, entitled "An Act to establish an uniform Rule of Naturalization," was passed in 1790 at the Second Session of the First Congress. It provided in part:
"And the children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States."
1 Stat. 103, 104. This provision is the earliest form of the statute under which Bellei acquired his citizenship. Its enactment as part of a "Rule of Naturalization" shows, I think, that the First Congress conceived of this and most likely all other purely statutory grants of citizenship as forms or varieties of naturalization. However, the clearest expression of the idea that Bellei and others similarly situated should for constitutional purposes be considered as naturalized citizens is to be found in United States v. Wong Kim Ark, 169 U.S. 649 (1898):
"The Fourteenth Amendment of the Constitution . . . contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."
169 U.S. at [702-03]. The Court in Wong Kim Ark thus stated a broad and comprehensive definition of naturalization. As shown in Wong Kim Ark, naturalization, when used in its constitutional sense, is a generic term describing and including within its meaning all those modes of acquiring American citizenship other than birth in this country. All means of obtaining American citizenship which are dependent upon a congressional enactment are forms of naturalization. This inclusive definition has been adopted in several opinions of this Court besides United States v. Wong Kim Ark, supra. Thus, in [Minor v. Happersett] 88 U.S. 167 (1875), the Court said:
"Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. . . . [N]ew citizens may be born, or they may be created by naturalization."
And in Elk v. Wilkins, 112 U.S. 94 (1884), the Court took the position that the Fourteenth Amendment
"contemplates two sources of citizenship, and two sources only: birth and naturalization. . . . Persons not . . . subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired."
112 U.S. at 101-102. Moreover, this concept of naturalization is the only one permitted by this Court's consistent adoption of the view that the Fourteenth Amendment was intended to supply a comprehensive definition of American citizenship. In an opinion written shortly after the Fourteenth Amendment was ratified, the Court stated that one of the primary purposes of the Citizenship Clause was
"to establish a clear and comprehensive definition of citizenship which should declare what should constitute citizenship of the United States, and also citizenship of a State."
83 U. S. 73 (1873). In his study, The Adoption of the Fourteenth Amendment, Professor Flack similarly concluded that the Citizenship Clause "put beyond doubt and cavil in the original law, who were citizens of the United States." H. Flack, The Adoption of the Fourteenth Amendment 89 (1908). And in Afroyim, both majority and dissenting Justices appear to have agreed on the basic proposition that the scope of the Citizenship Clause, whatever its effect, did reach all citizens. The opinion of the Court in Afroyim described the Citizenship Clause as "calculated completely to control the status of citizenship." 387 U.S. at 262. And the dissenting Justices agreed with this proposition to the extent of holding that the Citizenship Clause was a "declaration of the classes of individuals to whom citizenship initially attaches." Id. at 292.
The majority opinion appears at times to rely on the argument that Bellei, while he concededly might have been a naturalized citizen, was not naturalized "in the United States." This interpretation obviously imposes a limitation on the scope of the Citizenship Clause which is inconsistent with the conclusion expressed above that the Fourteenth Amendment provides a comprehensive definition of American citizenship, for the majority's view would exclude from the protection of that Clause all those who acquired American citizenship while abroad. I cannot accept the narrow and extraordinarily technical reading of the Fourteenth Amendment employed by the Court today. If, for example, Congress should decide to vest the authority to naturalize aliens in American embassy officials abroad, rather than having the ceremony performed in this country, I have no doubt that those so naturalized would be just as fully protected by the Fourteenth Amendment as are those who go through our present naturalization procedures. Rather than the technical reading adopted by the majority, it is my view that the word "in," as it appears in the phrase "in the United States," was surely meant to be understood in two somewhat different senses: one can become a citizen of this country by being born within it or by being naturalized into it. This interpretation is supported by the legislative history of the Citizenship Clause. That clause was added in the Senate rather late in the debates on the Fourteenth Amendment, and, as originally introduced, its reference was to all those "born in the United States or naturalized by the laws thereof." Cong.Globe, 39th Cong., 1st Sess., 2768. (Emphasis added.) The final version of the Citizenship Clause was undoubtedly intended to have this same scope. See Flack, supra, at 88-89.
MR. JUSTICE BRENNAN, with whom MR. JUSTICE DOUGLAS joins, dissenting.
Since the Court this Term has already downgraded citizens receiving public welfare, Wyman v. James, 400 U.S. 309 (1971), and citizens having the misfortune to be illegitimate, Labine v. Vincent, ante, p. 532, I suppose today's decision downgrading citizens born outside the United States should have been expected. Once again, as in James and Labine, the Court's opinion makes evident that its holding is contrary to earlier decisions. Concededly, petitioner was a citizen at birth, not by constitutional right, but only through operation of a federal statute. In the light of the complete lack of rational basis for distinguishing among citizens whose naturalization was carried out within the physical bounds of the United States, and those, like Bellei, who may be naturalized overseas, the conclusion is compelled that the reference in the Fourteenth Amendment to persons "born or naturalized in the United States" includes those naturalized through operation of an Act of Congress, wherever they may be at the time. Congress was therefore powerless to strip Bellei of his citizenship; he could lose it only if he voluntarily renounced or relinquished it. Afroyim v. Rusk, 387 U.S. 253 (1967). I dissent.
Note: Here, again, the Court clearly equates a "native born" or "born" citizen with "natural born" citizen status. It is worth noting, however, that the Supreme Court did create a third "type" citizenship - applicable to children born abroad to US citizen parents and that the Supreme Court held that such citizenship was not "constitutional citizenship" protected by the 14th Amendment.
|Mathews v. Diaz, 426 U.S. 67 (1976)|
Context: Issue in case was, generally, whether law denying Medicare benefits to non-citizens who were not admitted for permanent residenece and residents for at least five years, was constittutional.
"The fact that all persons, aliens and citizens alike, are protected by the Due Process Clause does not lead to the further conclusion that all aliens are entitled to enjoy all the advantages of citizenship or, indeed, to the conclusion that all aliens must be placed in a single homogeneous legal classification. For a host of constitutional and statutory provisions rest on the premise that a legitimate distinction between citizens and aliens may justify attributes and benefits for one class not accorded to the other; [Footnote 12] and the class of aliens is itself a heterogeneous multitude of persons with a wide-ranging variety of ties to this country."
Footnote 12: "The Constitution protects the privileges and immunities only of citizens, Amdt. 14, § 1; see Art. IV, § 2, cl. 1, and the right to vote only of citizens. Amdts. 15, 19, 24, 26. It requires that Representatives have been citizens for seven years, Art. I, § 2, cl. 2, and Senators citizens for nine, Art. I, § 3, cl. 3, and that the President be a "natural born Citizen." Art. II, § 1, cl. 5.***
Note: Included for completeness (case uses term "natural born citizen").
|Kungys v. United States, 485 U.S. 759 (1988)|
Context: US sought denaturalization of a person who came to the US in 1948 and was naturalized as a US citizen in 1954, under three different theories. The District Court rejected the government's request. The Court of Appeals reversed the District Court's order with respect to one of the theories. The Supreme Court reversed the Court of Appeals and remanded to the District Court.
Concurring Opinion: JUSTICE STEVENS, with whom JUSTICE MARSHALL and JUSTICE BLACKMUN join, concurring in the judgment.
"American citizenship is "a right no less precious than life or liberty." Klapprott v. United States, 335 U. S. 601, 335 U. S. 616-617 (1949) (Rutledge, J., concurring in result). For the native-born citizen, it is a right that is truly inalienable. For the naturalized citizen, however, Congress has authorized a special procedure that may result in the revocation of citizenship. That statute provides that a certificate of naturalization may be canceled, and an order granting citizenship revoked, if the Government proves that
"such order and certificate of naturalization were illegally procured or were procured by concealment of a material fact or by willful misrepresentation."
8 U.S.C. § 1451(a)....
In his concurrence explaining why special procedural safeguards are appropriate in denaturalization proceedings, Justice Rutledge advanced an argument that further demonstrates the importance of the requirement that the Government prove the existence of a disqualifying fact. He wrote:
"To take away a man's citizenship deprives him of a right no less precious than life or liberty, indeed of one which today comprehends those rights and almost all others. To lay upon the citizen the punishment of exile for committing murder, or even treason, is a penalty thus far unknown to our law and at most but doubtfully within Congress' power. U.S.Const., Amend. VIII. Yet by the device or label or a civil suit, carried forward with none of the safeguards of criminal procedure provided by the Bill of Rights, this most comprehensive and basic right of all, so it has been held, can be taken away and in its wake may follow the most cruel penalty of banishment."
"No such procedures could strip a natural-born citizen of his birthright or lay him open to such a penalty."
Note: Included for completeness (case uses term "natural born citizen" - and equate "natural born" with "native born").