The United States, like all sovereign states, makes distinctions between its citizens and noncitizens (aliens) living under its jurisdiction. Citizenship carries certain rights, liberties, and responsibilities that noncitizens do not possess. However, it has taken many years for the concept of American citizenship to evolve. The original provisions of the United States Constitution do not define citizenship. Other than the provision authorizing Congress “[t]o establish a uniform Rule of Naturalization” (Article I, Section 8, clause 4), the only references to citizenship prior to the passage of the Fourteenth Amendment ( 1868 ) concerned qualifications for holding national public office. The Constitution requires the president of the United States to be “a natural born Citizen” (Article II, Section 1, clause 1), members of the House of Representatives to be “seven Years a Citizen of the United States” (Article I, Section 2, clause 2), and Senators to be “nine Years a Citizen of the United States” (Article I, Section 3, clause 3). Even so, it is largely left to the individual American states to assess those qualifications.
The passage of the Fourteenth Amendment at the close of the Civil War marks a constitutional turning point in defining and delimiting US citizenship. This amendment was primarily intended to reverse the controversial Supreme Court ruling in Dred Scott v. Sandford, 60 U.S. 393 ( 1856 ), and protect newly freed slaves from invidious discrimination by state governments. Dred Scott was a slave living in Missouri, a slave state under the terms of the Missouri Compromise of 1820. He was taken to Illinois, a free state, and subsequently returned to Missouri. With help from abolitionists, Scott sued his owner, contending his forced journey to free territory made him free. However, in a 7–2 decision, written primarily by Chief Justice Roger B. Taney, the Supreme Court ruled that Scott had no standing to sue because slaves were considered “property” and not “citizens.” To overcome this adverse decision, the Fourteenth Amendment begins: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” This emphatic statement renders the Dred Scott decision null and void by declaring that all persons born in the United States are US citizens, and thus afforded due process, equal protection, and privileges and immunities.
The second pathway is by birth to US citizens, sometimes referred to as jus sanguinis (Latin for “right of blood” ). A person born on foreign soil can still become a US citizen if one parent is a US citizen. This, too, is often classified as a form of natural-born or birthright citizenship. And, like jus soli, Congress has frequently added restrictions regarding the conditions under which such citizenship can be conferred. For example, the law might require proof of parentage or preclude parents who voluntarily participate in foreign political systems.
It should be noted that the United States is one of the few nation-states that recognizes both jus soli and jus sanguinis as pathways to citizenship. Because laws vary around the globe, it is possible for a person to have “dual citizenship” (sometimes called “acquired citizenship” ). For example, a child born in the United States to Italian parents becomes an American citizen by jus soli and an Italian citizen by jus sanguinis. Similarly, a child born to American citizens in Argentina becomes a citizen of the United States by jus sanguinis and a citizen of Argentina by jus soli. Occasionally, a person acquires dual citizenship without knowing about it. Most legal systems, including the United States, require individuals to make a formal declaration of allegiance to one state upon their eighteenth birthday. This is done to avoid conflicts associated with taxes, military service, voting, and international travel.
The final pathway is through derivative citizenship. Foreign-born children under the age of eighteen cannot normally become naturalized American citizens. But they can become citizens if at least one of their parents completes the naturalization process. This is called “derivative citizenship.” Again, American immigration laws are quite complex, and eligibility may depend on the timing of the parent's application, the residency of the children, and state of origin.
Millions of undocumented aliens are living in the United States. No one knows the exact number, but estimates range from eight to thirty million. Many have entered the United States lawfully to attend college or to work and have simply overstayed their visas. Most, however, have crossed the border illegally to seek work and better living conditions or to avoid political persecution in their home country. Current federal immigration policies appear unworkable. The sheer number of undocumented immigrants makes it nearly impossible to locate, identify, and deport such persons. And a great number of these persons have lived many years on American soil and wish to become citizens. There have been many attempts to streamline citizenship for children of undocumented aliens, such as the DREAM Act (Development, Relief, and Education for Alien Minors), which was debated in the House and Senate but failed to win final passage. Some lawmakers have advocated “amnesty” —blanket naturalization for most undocumented aliens; others strongly opposed such action, noting that it would be unfair to immigrants pursuing the legal process. Although the president of the United States can enhance or inhibit the enforcement of current immigration laws through executive orders, the US Constitution ultimately places the responsibility on the Congress.
SEE ALSO Citizenship ; Citizenship, History of ; Federal Powers: Immigration and Naturalization ; Fourteenth Amendment ; Immigration and Nationality Act and Amendments ; Immigration Policy, History of .
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Richard J. Hardy
Western Illinois University