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State Citizenship Model

State Citizenship Model

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Prior to the adoption of the 14th
Amendment in 1868, U.S. citizenship was not defined by
the Constitution, but by the longstanding common law principle of jus soli, which granted an
individual ―citizenship in a nation by virtue of his birth in that nation or its territorial
possessions.‖
1
U.S. courts rejected the alternative rule—jus sanguinis—in which ―a person
acquires the citizenship of his parents.‖
2
Under jus soli, all children born on U.S. soil were U.S.
citizens, with only two narrow exceptions: the children of foreign diplomats and the children of
occupying enemy soldiers.
3
Prior to the adoption of the 14th
Amendment in 1868, U.S. citizenship was not defined by
the Constitution, but by the longstanding common law principle of jus soli, which granted an
individual ―citizenship in a nation by virtue of his birth in that nation or its territorial
possessions.‖
1
U.S. courts rejected the alternative rule—jus sanguinis—in which ―a person
acquires the citizenship of his parents.‖
2
Under jus soli, all children born on U.S. soil were U.S.
citizens, with only two narrow exceptions: the children of foreign diplomats and the children of
occupying enemy soldiers.
3

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Categories:Types, Business/Law
Published by: The Leadership Conference on Mar 31, 2011
Copyright:Attribution Non-commercial

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12/18/2013

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 EXECUTIVE SUMMARY
“All persons born or naturalized in the United States, and
subject to thejurisdiction thereof, are citizens of the United States and the state wherein
they reside.”
 
T
HE
C
ITIZENSHIP
C
LAUSE OF THE
14
TH
A
MENDMENT TO THE
U
NITED
S
TATES
C
ONSTITUTION
,
 
S
ECTION
1
The proposed legislation attempts to change the nature of citizenship. Its interpretation of the Citizenship Clause contradicts the plain language and the intent of the framers of the 14
th
 Amendment. Moreover, this proposed statute cl
early violates the Supreme Court‘s long
established jurisprudence on citizenship for individuals born within the United States. If enacted, the proposed legislation would likely be challenged, resulting in the State of [ ]spending large sums of money in a failed effort to defend the legislation and possibly exposingthe State of [ ] to liability to private plaintiffs under federal civil rights legislation if the Statesought to enforce the statute.Additionally, the proposed statute is attempting to revive the long-abandoned concept of primary state citizenship, which suggests that states can define their own citizenry withoutoffending the right to United States citizenship. However, the Constitution clearly states thatstate citizenship is derivative of national citizenship. Pursuant to the 14
th
Amendment, a citizenof the United States is a citizen of the state in which he or she resides; a state is not legallypermitted to choose its citizens. Further, the right to be a citizen of the state is enshrined as oneof the privileges or immunities of 
national
citizenship. Denying state citizenship to a populationof 
American
citizens therefore violates both the Citizenship Clause and the Privileges orImmunities Clause of the 14
th
Amendment.
 
1
I.
 
AMERICAN CITIZENSHIP AND THE 14
TH
AMENDMENTA.
 
The Constitutionally-protected principle of 
jus soli
grants citizenship to allindividuals born within the United States
Prior to the adoption of the 14
th
Amendment in 1868, U.S. citizenship was not defined bythe Constitution, but by the longstanding common law principle of 
jus soli,
which granted anindividual
―citizenship in a nation by virtue of his birth in that nation
or its territorialpossessions.
1
U.S. courts rejected the alternative rule
— 
jus sanguinis
— 
in which
―a personacquires the citizenship of his parents.‖
2
Under
jus soli,
all children born on U.S. soil were U.S.citizens, with only two narrow exceptions: the children of foreign diplomats and the children of occupying enemy soldiers.
3
 The proposed statute attempts to eliminate citizenship by birth and resurrect citizenshipdetermined by parentage, violating the fundamental constitutional principle that all children bornon U.S. soil begin life on equal footing under the law. The only time in our country
‘s history
when citizenship depended on parentage as a matter of constitutional law was the eleven yearperiod following the notorious
Dred Scott 
decision, in which the U.S. Supreme Court deniedcitizenship by birth to African-American slaves and their descendants.
4
 The Civil Rights Act of 1866
(the ―
Civil Rights
Act‖)
and the first sentence of the firstsection of the 14
th
Amendment
(the ―Citizenship Clause‖)
conclusively overturned the
Dred Scott 
decision and reaffirmed the
jus soli
principle, guaranteeing U.S. citizenship for thedescendants of slaves
and for ―virtually everyone born in the United States,‖ including the U.S.
-born children of aliens.
5
The 14
th
Amendment preserves two common law exceptions through
the phrase, ―and subject to the jurisdiction thereof,‖ since diplomats and foreign soldiers were
not subject to U.S. law.
6
 Congress clearly intended to grant citizenship to all children born in the United States,regardless of the immigration status of their parents, as the legislative history of the Civil RightsAct demonstrates. The Civil Rights Act states
that ―
all persons born in the United States and notsubject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of 
the United States.‖
7
Congress understood that this would include children born to aliens, asshown by the Senate debates concerning the children of Chinese immigrants, when it was notedthat under the Act
―the child of an Asiatic is just as much a citizen as the child of a European
.
8
 During the Senate debates about the 14
th
Amendment, Senator Jacob Howard proposedlanguage making the grant of citizenship by birth unequivocally universal and inclusive of children born to foreigners. Howard declared,
―[
t]his amendment . . . is simply declaratory of what I regard as the law of the land already, that
every
person born within the limits of theUnited States, and subject to their jurisdiction, is by virtue of natural law and national law a
citizen of the United States.‖
9
He noted that while the common law exceptions had beenpreserved, the 14
th
Amendment did
―include every other class of persons.‖
10
Congress ultimately
adopted Howard‘s language, enshrining the right to citizenship by birth
as a constitutional right.
B.
 
The Constitution ensures citizenship to all children born in the United States,
regardless of their parents’ immigration status.
 
 
2
By inventing a new concept of ―jurisdiction,‖ the proposed statute aims to circumvent the
14
th
Amendment. Part (b) of the statute reads:
(b) For the purposed of this statute, subject to the jurisdiction of the United States has the meaning that it bears in Section 1 of theFourteenth Amendment to the United States Constitution, namelythat the person is a child of at least one parent who owes noallegiance to any foreign sovereignty, or a child without citizenship or nationality in any foreign country. For the purposesof this statute, a person who owes no allegiance to any foreignsovereignty is a United States citizen or national, or an immigrant accorded the privilege of residing permanently in the United States, or a person without citizenship or nationality in any foreigncountry.
The proposed statute claims to follow the 14
th
Amendment. However, these words have aprecise and universally accepted legal meaning, which does not allow for the strainedinterpretation that proponents demand we adopt.
Black‘s Law Dictionary defines ―jurisdiction‖as ―[a] government‘s general power to exercise authority
over
all persons and things within itsterritory
[.]
11
This definition is confirmed by over one hundred years of Supreme Court rulings,
a plain reading of the Constitution‘s text, and common sense.
 In 1898, the Supreme Court issued a seminal decision on the right of citizenship grantedby the 14
th
Amendment in
United States v. Wong Kim Ark 
.
12
The case addressed the question of whether the Chinese Exclusion Act, which barred entry into the United States of 
―persons of the
Chinese race, especially Chinese laborers,
13
could be applied to deny citizenship rights to theirU.S. born children. After a lengthy discussion of the history of the 14
th
Amendment and therules of citizenship under the common law, the Court held that the Constitution means what it
says, namely, that ―all persons‖ born within the
territory of the United States are citizens,regardless of the nationality of their parents. The Court explained that the phrase
―subj
ect to thejurisdiction thereof 
‖ was intended
only to confirm the two pre-existing exceptions to
jus soli
forthe children of foreign diplomats and occupying enemy soldiers who are treated as if they are notphysically present in the country of their birth and thus are not subject to its laws or jurisdiction.All other children
are
 
subject to the country‘s laws,
however, and are necessarily subject to itsjurisdiction.
The statute‘s proponents claim that the Framers, in saying, ―jurisdiction,‖ actually meant,―allegiance.‖ In doing so, the proponents are misapplying a modern day definition to an ancient
common law term
. Today, we understand ―allegiance‖ to refer to an individual‘s pledge of 
loyalty to the government. Under the common law, however, the term simply referred to thestate of being within the territory of the king and under his power. As the Supreme Courtexplained, allegiance was
―not restricted to natural
-born subjects and naturalized subjects, or tothose who had taken an oath of allegiance.
14
 The Court has ruled definit
ively on this issue, stating, ―[t]
he amendment, in clear wordsand manifest intent, includes the children born within the territory of the United States of allother persons, of whatever race or color, domiciled within the United States. Every citizen
or 

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