Being and Becoming an American: Citizenship in the Usa

• Publication year: 1987
• Pages: 1563
• Citation: Vol. 09 No. 1987 Pg. 1563

16 Colo.Law. 1563 Colorado Lawyer 1987.

1987, September, Pg. 1563. Being and Becoming an American: Citizenship in the USA

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Being and Becoming an American: Citizenship in the USA

by Lorna Rogers Burgess

This article provides an introduction to United States citizenship from a historical perspective. Current awareness of the impact upon this country of individuals who are not citizens creates an opportune occasion to examine being and becoming an American. The article discusses who is a citizen according to the Constitution, the courts and Congress. It also discusses early nationality statutes and citizenship under current law.

WHO IS A CITIZEN

Prior to the Declaration of Independence, inhabitants of the thirteen American colonies were citizens or subjects of Great Britain. The Declaration resolved that citizens of the colonies were citizens of the states in which they resided. The Articles of Confederation did not address the subject of federal citizenship.(fn1)

United States citizenship by birth and through naturalization are assumed in the Constitution. Articles I and II, which address eligibility for the Presidency and membership in the House and Senate refer to United States citizenship. Eligibility for the Presidency requires citizenship at the time of the adoption of the Constitution or that the candidate be a "natural born citizen." Membership in the House and Senate is limited to United States citizens who have fulfilled a specified residency period in the United States.(fn2) Naturalization is specifically referenced in Article I, § 8.(fn3) One of the powers vested in Congress by the Constitution is the power to establish a uniform rule of naturalization.

United States citizenship was a critical concern at the time of the Constitution. "[T]he Constitution itself recognizes a basic difference between citizens and aliens. That distinction is constitutionally important in no less than eleven instances in a political document noted for its brevity."(fn4) Nevertheless, the language of the Constitution, as ratified, suggests that there was considerable tension over whether the source of United States citizenship would be defined by the federal Congress or the states. Without defining citizenship, along with the provisions which address federal citizenship, the Constitution recognizes state citizenship. There are several references in the Constitution to "Citizenship in a State."(fn5)

During the first hundred years of this nation's existence under the Constitution, the issue of citizenship was not probed too deeply by the U.S. Supreme Court or Congress. It is generally assumed that the first courts of the country adopted the English common law doctrine of Jus Soli. That principle determined a person's nationality by the place of his birth.(fn6) In contrast, the civil law doctrine of Jus Sanguinis based the nationality of the child on the nationality of the parents. This principle was recognized by Congress in the first nationality act, passed in 1790.(fn7)

The Fourteenth Amendment

In 1857, the Supreme Court rendered its interpretation of citizenship in the historic decision in the Dred Scott case. In Scott v. Sanford,(fn8) Chief Justice Taney, joined by six members of the U.S. Supreme Court, held that no American of African descent, whether free man or slave, could be a U.S. citizen by birth.

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The Court found that the framers of the Constitution had intended that only individuals who were state citizens at the time of the original Constitution could transmit that status to their descendants. Through an analysis of the political organization of the original states, the Court also found that neither slaves nor free blacks could be state citizens This interpretation, therefore, rendered federal citizenship entirely dependent upon the state conception of citizenship. This issue, debated in Dred Scott, was not resolved until after the Civil War.

Following the Civil War, the critical concern was the guarantee of equality to blacks. This guarantee required not only equal civil rights, but acknowledgment that the Negro population of the nation had full citizenship. The Civil Rights Act of 1866 overruled Dred Scott with the following definition of citizenship: "[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."(fn9)

Not satisfied with solely a legislative resolution of an issue of such significance, Congress drafted the citizenship clause of the Fourteenth Amendment to the Constitution. Ratified in July 1868, the Fourteenth Amendment was the first provision of the Constitution which declared who were citizens of the United States:

All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.(fn10)

The Fourteenth Amendment explicitly repudiated the notion that national citizenship is contingent upon state citizenship. In its first opinion to address this Fourteenth Amendment issue, the Court stated:

The distinction between citizenship of the United States and citizenship of a State is clearly recognized and established. Not only may a man be a citizen of the United States without being a citizen of a State, but an important element is necessary to convert the former to the latter. He must reside within the State to make him a citizen of it, but it is only necessary that he should be born or naturalized in the United States to be a citizen of the Union.(fn11)

Although the Fourteenth Amendment was adopted with the specific intent to declare citizenship for American Negroes, its impact has been far broader. It provided a Constitutional basis for citizenship. It founded American citizenship upon birth within the jurisdictional limits of the nation.

NATIONALITY STATUTES

Following the Civil War, the nation acquired vast territories from other countries. In addition, significant numbers of people began to immigrate into the country. Incorporation of the immigrating population and the residents of acquired territories provoked questions over their nationality. Starting at the end of the nineteenth century, a series of nationality acts were passed to determine the nationality of the new population.(fn12)

Generally, when land was acquired by treaty, the treaty provided for the citizenship status of the inhabitants. For example, portions of Colorado were acquired from Mexico by the Treaty of Guadulupe-Hidalgo.(fn13) Pursuant to that treaty, Mexicans who remained in the ceded territory became citizens of the United States, unless within one year of the treaty, they declared their intention to remain Mexican citizens.(fn14)

Other residents of Colorado became citizens by collective naturalization upon admission of the state into the Union on equal footing with the first thirteen states. Citizens of the first thirteen colonies acquired United States citizenship upon ratification of the Constitution. Louisiana Purchase states, such as Indiana and IIlinois, were granted citizenship according to the terms of the enabling acts which admitted those states to the Union. In the enabling acts of many western states, specific citizenship provisions were not included with respect to the residents of these states. To resolve this issue, in 1892, the Supreme Court applied the equal footing doctrine to allow for acquisition of citizenship by collective naturalization to certain residents of these states upon admission to statehood.

The issue arose in Colorado's neighboring state, Nebraska, which was admitted to the Union in 1867. (fn15) In Boyd v. Thayer,(fn16) the Court held that Boyd, Nebraska's governor-elect who was born in Ireland to Irish parents, was a United States citizen by virtue of the collective naturalization of the people of the territory upon admission of the state into the Union on equal footing.

Congress having the power to deal with the people of the Territories in view of the future States to be formed from them, there can be no doubt that in the admission of the State a collective naturalization may be effected in accordance with the intention of Congress and the people applying for admission. Admission on an equal footing with the original States, in all respects whatever, involves equality of constitutional right and power, which cannot thereafter-wards be controlled, and it also involves the adoption as citizens of the United States of those whom Congress makes members of the political community, and who are recognized as such in the formation of the new State with the consent of Congress.(fn17)

Analysis of territorial regulations indicated that citizens of the United States and aliens who had declared their intention to become citizens(fn18) were considered citizens of the territory. Boyd was neither. Nevertheless, he had taken consistent action which expressed his intention to become a citizen and had actively participated in the territorial government. Accordingly, upon admission of Nebraska on equal footing, he, along with all the citizens of the territory, became a citizen of the United States.

Colorado was admitted into the Union nine years after Nebraska under an enabling act similar to Nebraska's.(fn19) By application of the Boyd case, upon Colorado's admission in 1876, aliens who had formally declared their intention to be citizens were collectively naturalized.(fn20)

American Indians

The Civil Rights Act of 1866 specifically excluded Indians not taxed,(fn21) but that language was not incorporated into the Fourteenth Amendment. The issue of whether American Indians were included in the Fourteenth Amendment was resolved in 1884 in Elk v. Wilkins.(fn22) In that decision, Justice Gray found that American Indians were not...