Filed: Dec. 13, 1995
Latest Update: Mar. 03, 2020
Summary: Legislation Denying Citizenship at Birth to Certain Children, Born in the United States, A bill that would deny citizenship to children bora in the United States to certain classes of alien, parents is unconstitutional on its face.of constitutional law.Senator Cowan . Wong Kim Ark, 169 U.S. at 676.
Legislation Denying Citizenship at Birth to Certain Children
Born in the United States
A bill that would deny citizenship to children bora in the United States to certain classes of alien
parents is unconstitutional on its face.
A constitutional amendm ent to restrict birthright citizenship, although not technically unlawful, would
flatly contradict the N ation’s constitutional history and constitutional traditions.
December 13, 1995
Sta tem en t B efore the S u b c o m m it t e e s
on I m m ig r a t io n and C l a im s
and
on the C o n s t it u t io n
o f the H o u s e C o m m it t e e on the J u d ic ia r y
Throughout this country’s history, the fundamental legal principle governing
citizenship has been that birth within the territorial limits o f the United States
confers United States citizenship. The Constitution itself rests on this principle
o f the common law.1 As Justice Noah Swayne wrote in one of the first judicial
decisions interpreting the Civil Rights Act of 1866,2 the word “ Citizens ‘under
our constitution and laws means free inhabitants bom within the United States
or naturalized under the laws o f Congress.’ We find no warrant for the opinion
that this great principle of the common law has ever been changed in the United
States.” 3 When Justice Swayne wrote these words, the nation was only beginning
to recover from a great Civil War sparked in no small part by the Supreme Court’s
tragically misguided decision in the D red Scott case.4 That decision sought to
modify the founders’ rule of citizenship by denying American citizenship to a
class of persons bom within the United States. In response to Dred Scott and
to the Civil War, Congress enacted the 1866 Act, and Congress and the States
adopted the Fourteenth Amendment in order to place the right to citizenship based
on birth within the jurisdiction o f the United States beyond question. Any restric
tion on that right contradicts both the Fourteenth Amendment and the underlying
principle that the amendment safeguards.
The several bills and resolutions now before Congress that would deny citizen
ship to children bom in the United States to certain classes o f alien parents raise
various issues of law and policy. My testimony today will address two points
1 Indeed, the com m on law 's inclusive rule o f citizenship by birth defined “ the People” who created the Constitu
tion. “ The C onstitution itself does not m ake the citizens; it is, in fact, made by them. It only . . . recognizes
such o f them as are natural — home-born.” Citizenship , 10 Op. A tt’y Gen. 382, 389 (1862).
2 A ct o f Apr. 9, 1866, ch. 31, 14 Stat. 27 ( “ 1866 Act” ).
3 United States v. Rhodes, 27 F. Cas. 785, 789 (C.C.D. Ky. 1866) (No. 16,151) (Swayne, J., on circuit) (quoting
2 James Kent, Commentaries on American Law 288 n.(a) (1 1th ed. 1866)).
4 Dred Scott v. Sandford, 60 U.S (19 How.) 393 (1857).
340
Legislation Denying Citizenship at Birth to Certain Children Born in the United States
of constitutional law. First, because the rule of citizenship acquired by birth within
the United States is the law of the Constitution, it cannot be changed through
legislation, but only by amending the Constitution. A bill such as H.R. 1363,
104th Cong. (1995), the “ Citizenship Reform Act o f 1995,” that purports to deny
citizenship by birth to persons bom within the jurisdiction of this country is
unconstitutional on its face. Second, the proposed constitutional amendments on
this topic conflict with basic constitutional principles. To adopt such an amend
ment would not be technically unlawful, but it would flatly contradict our constitu
tional history and our constitutional traditions. Affirming the citizenship of Afri
can-Americans that Dred Scott had denied, in 1862 President Lincoln’s Attorney
General wrote an opinion for the Secretary of the Treasury asserting “ [a]s far
as I know . . . you and I have no better title to the citizenship which we enjoy
than the ‘accident of birth’ — the fact that we happened to be bom in the United
States.” 5 Today, in 1995, we cannot and should not try to solve the difficult
problems illegal immigration poses by denying citizenship to persons whose claim
to be recognized as Americans rests on the same constitutional footing as that
of any natural-born citizen. Members of both of your Subcommittees have worked
vigorously, with the Department of Justice on an evenhanded bipartisan basis,
on legislation and oversight to address these problems.
I.
H.R. 1363, the “ Citizenship Reform Act of 1995,” exemplifies the various
legislative proposals before the committees. The stated purpose of the bill is “ to
deny automatic citizenship at birth to children bom in the United States to parents
who are not citizens or permanent resident aliens.” Section 3(a) of the bill amends
section 301(a) of the Immigration and Nationality Act, which grants U.S. citizen
ship “ at birth” to all persons “ bom in the United States, and subject to the juris
diction thereof.” Specifically, section 3(a) proposes to define the phrase “ subject
to the jurisdiction thereof” to include only children bom to U.S. citizens or perma
nent resident aliens.
My office grapples with many difficult and close issues o f constitutional law.
The lawfulness of this bill is not among them. This legislation is unquestionably
unconstitutional. The Fourteenth Amendment declares that “ [a]ll persons bom 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.” U.S. Const, amend.
XIV, § 1. The unmistakable purpose of this provision was to constitutionalize the
existing Anglo-American common law rule of jus soli or citizenship by place of
birth and especially to extend it to persons of African descent and their descend
ants.
5 10 Op. A tt'y Gen. at 394.
341
Opinions o f the Office o f Legal Counsel in Volume 19
The phrase “ subject to the jurisdiction thereof” was meant to reflect the
existing common law exception for discrete sets o f persons who were deemed
subject to a foreign sovereign and immune from U.S. laws, principally children
bom in the United States of foreign diplomats, with the single additional exception
o f children of members of Indian tribes. Apart from these extremely limited excep
tions, there can be no question that children bom in the United States of aliens
are subject to the full jurisdiction of the United States. And, as consistently recog
nized by courts and Attorneys General for over a century, most notably by the
Supreme Court in United States v. Wong Kim Ark,6 there is no question that they
possess constitutional citizenship under the Fourteenth Amendment.
A.
While the Constitution recognized citizenship of the United States in prescribing
the qualifications for President, Senators, and Representatives, it contained no defi
nition of citizenship until the adoption of the Fourteenth Amendment in 1868.
Prior to that time, citizenship by birth was regulated by common law. And the
common law conferred citizenship upon all persons7 bom within the territory of
the United States, whether children of citizens or aliens.8 The only common law
exceptions to this generally applicable rule of jus soli were children bom under
three circumstances — to foreign diplomats, on foreign ships, and to hostile occu
pying forces — which, under principles of international law, were deemed not to
be within the sovereignty of the territory.9
6 169 U.S. 649(1898).
7 Slaves, shamefully, not being considered persons at all for many legal purposes, were ignored by the common
law analysis.
s E.g., Murray v. The Schooner Charming Betsy , 6 U.S. (2 Cranch) 64, 119 (1804) (presuming that all persons
bom in the United States were citizens thereof); McCreery v. Somerville, 22 U.S. (9 W heat.) 354 (1824) (in deter
mining title to land in M aryland, Court assum ed that children bom in the state o f an alien were native-born citizens
o f the U nited States), Lynch v. Clarke,
1 Sand. Ch. 583 (N.Y. Ch. 1844) (in holding that child bom in New York
during temporary stay by alien parents w as a citizen o f the United States, Court, after thorough examination of
law, concluded that it entertained no doubt th at every person bom within the dominions and allegiance o f the United
States, whatever the situation o f his parents, w as a natural-bom citizen); Letter for Mr. Mason, United States Minister
to France, from Mr. M arcy, Secretary o f S tate (June 6, 1854), in 2 Francis Wharton, Digest o f the International
Law o f the United States 394 (2d ed. 1887) ( “ In reply to the inquiry which is made by you . . . whether ‘the
children o f foreign parents bom in the U nited States, but brought to the country o f which the father is a subject,
and continuing to reside within the jurisdiction o f their father’s country, are entitled to protection as citizens of
the United States,’ I have to observe that it is presumed that, according to the common law, any person bom in
the U nited States, unless he be bom in one o f the foreign legations therein, may be considered a citizen thereof
until he formally renounces his citizenship.” ); Citizenship o f Children Born in the United States o f Alien Parents,
10 Op. A tt’y Gen. 328 (1862) (child bom in the United States o f alien parents who have never been naturalized
is, by fact o f birth, a native-born citizen o f th e United States); 10 Op. A tt’y Gen. 382 (1862) (reaffirming general
principle o f citizenship by birth in the U nited States and rejecting the existence under law o f a class o f persons
intermediate between citizens and aliens); Frederick Van D yne, Citizenship o f the United States 6 -7 (1904) ( “ It
is beyond doubt that, before the enactment o f the civil rights act of 1866 . . . or the adoption of the constitutional
amendment, all white persons, at least, bom w ithin the sovereignty o f the U nited States, w hether children o f citizens
or foreigners, excepting only children o f ambassadors or public ministers of a foreign government, were native-
born citizens o f the United States.” ) (citations omitted).
9 United States v. Wong Kim Ark,
169 U.S. 649 (1898); 4 Charles Gordon et al., Immigration Law and Procedure
§ 92-03(3] (rev. ed. 1995). See infra note 13 fo r a discussion o f the status o f tribal Indians.
342
Legislation Denying Citizenship al Birth to Certain Children Born in the United States
B.
As the legislative history of the Civil Rights Act of 1866 and the Fourteenth
Amendment makes clear, the definitions of citizenship contained in both were
intended to codify the common law and overrule Dred Scott’s denial o f citizenship
to persons of African descent. Thus, with the three limited exceptions already
noted and the additional exception of tribal Indians, the Fourteenth Amendment
guaranteed citizenship to all persons bom in the United States, including children
bom to aliens.
The Civil Rights Act of 1866 provides that “ all persons bom 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.” 1866 Act, §1, 14 Stat. at
27. During the debates on the Act, the Chair of the House Judiciary Committee
stated that the provision defining citizenship is “ merely declaratory of what the
law now is,” and he cited, among other authorities, a quotation from William
Rawle, whose constitutional law treatise was one of the most widely respected
antebellum works: “ Every person bom within the United States, its Territories,
or districts, whether the parents are citizens or aliens, is a natural-born citizen
in the sense of the Constitution, and entitled to all the rights and privileges apper
taining to that capacity.” 10
The Fourteenth Amendment initially contained no definition of citizenship. Sen
ator Howard of Michigan proposed to insert the definition that became the opening
sentence of the Fourteenth Amendment:
This amendment which I have offered is simply declaratory of what
I regard as the law of the land already, that every person bom
within the limits o f the United States, and subject to their jurisdic
tion, is by virtue of natural law and national law a citizen o f the
United States.11
He explained that this was not meant to include those discrete classes of persons
excluded by the common law, “ but will include every other class of persons.”
The Framers intended the amendment to resolve not only the status o f African-
Americans and their descendants, but members of other alien groups as well. This
is reflected in the exchange between Senators Trumbell and Conness, supporters
of the Fourteenth Amendment and the Civil Rights Act, and Senator Cowan, a
strong opponent of both. Senator Cowan expressed his reluctance to amend the
The principal alternative system, jus sanguinis used in most civil law European countries, grants citizenship by
descent or blood— that is, according to the citizenship o f one’s parents. This system obviously could not have
operated in the United Stales at its inception, where, except for American Indians, the inhabitants were citizens
of other countries.
10Cong. Globe, 39th Cong., 1st Sess. 1115 (1866); id. at 1117 (quoting William Rawle, A View o f the Constitution
o f the United States o f America 80 (1829)).
■i Id. at 2890.
343
Opinions o f the Office o f Legal Counsel in Volume 19
Constitution in such a way as would “ tie the[] hands” of the Pacific states “ so
as to prevent them . . . from [later] dealing with [the Chinese] as in their wisdom
they see fit.” 12 The supporters of the citizenship clause responded by confirming
their intent to constitutionalize the U.S. citizenship of children bom in the United
States to alien parents.
Senator Cowan . . . . I am really desirous to have a legal definition
o f ‘citizenship of the United States.’ What does it mean? . . . Is
the child of the Chinese immigrant in California a citizen? Is the
child of a Gypsy bom in Pennsylvania a citizen?
Senator Conness . . . . The proposition before us . . . relates . . .
to the children begotten of Chinese parents in California, and it
is proposed to declare that they shall be citizens. We have declared
that by law; now it is proposed to incorporate the same provision
in the fundamental instrument of the nation. I am in favor of doing
so.13
C.
The constitutional guarantee o f citizenship to children bom in the United States
to alien parents has consistently been recognized by courts, including the Supreme
Court, and Attorneys General for over a century. Most notably, in United States
v. Wong Kim Ark,14 the Supreme Court held that a child bom in San Francisco
l2See, e.g., id. at 2891.
i*Id. at 2890-91.
A great deal o f attention was spent on h o w (not whether) to exclude unassimilated or tribal Indians. Ultimately,
any reference to “ excluding Indians not ta x e d ” — the phrase used in the Civil Rights Act of 1866— was omitted
as unnecessary, as they were not deemed to be “ subject to the jurisdiction” of the United States because of the
unique status o f Indian tribes within the U nited States. In Elk v. Wilkins,
112 U.S. 94, 99 (1884), the Court construed
the “ subject to jurisdiction” clause in a case brought by an Indian claiming citizenship who was bom a member
o f a tribe, but w ho had later taken up residence among the non-Indian citizens o f the state. The Court held he
was not a U nited States citizen, because he was not “ subject to the jurisdiction" o f the United States at the time
o f his birth. In construing the phrase “ subject to the jurisdiction” the Court noted that the Indian tribes, although
not, strictly speaking, foreign nations, were alien nations w ith distinct political communities with which the United
States entered into treaties.
Indians bom within the territorial limits o f the United States, m embers of, and owing immediate allegiance
to, one o f the Indian tribes (an alien, though dependent, power), although in a geographical sense bom
in the U nited States, are no more “ b o m in the U nited States and subject to the jurisdiction thereof,”
w ithin the meaning o f the first section o f the Fourteenth Amendment, than the children o f subjects of
any foreign government bom within the dom ain o f that government, or the children bom within the United
States, o r ambassadors o f other public m inisters o f foreign nations.
Id. at 102; see also David C. Williams, The Borders o f the Equal Protection Clause: Indians as Peoples, 38 UCLA
L. Rev. 759, 832-41 (1991) (reviewing the legislative history o f the citizenship clause to conclude that “ subject
to jurisdiction” was intended to exclude tribal Indians with separate laws and governments o f their own, and thus
w ere, “ in m odem international law parlance, a separate people” ). Wilkins cannot be interpreted to mean that children
bom in the U nited States o f aliens are not “ subject to the jurisdiction” o f the United States because their parents
may owe som e allegiance to their own country o f birth. Otherw ise, dual nationality would be prohibited.
The denial o f citizenship to American Indians was later corrected by statute. 8 U.S.C. § 1401(b).
14169 U.S. 6 49(1898).
344
Legislation Denying Citizenship al Birth to Certain Children Born in the United States
of Chinese parents (who, under the Chinese Exclusion laws then in effect, could
never themselves become U.S. citizens) became at the time of his birth in the
United States a citizen of the United States, by virtue of the Fourteenth Amend
ment.
The Court, in a detailed review of the Anglo-American common law of citizen
ship and the legislative history of the Fourteenth Amendment, established several
propositions. First, because the Constitution does not define United States citizen
ship, it must be interpreted in light of the common law. Under the common law
of England, which was adopted by the United States, every child bom within
the territory of alien parents was a natural-born subject, with the exception of
children bom of foreign ambassadors, of alien enemies during hostile occupation,
and of aliens on a foreign vessel.
Further, “ [a]s appears upon the face of the [Fourteenth] Amendment, as well
as from the history of the times, [the amendment] was not intended to impose
any new restrictions upon citizenship, or to prevent any persons from becoming
citizens by the fact o f birth within the United States, who would thereby have
become citizens according to the law existing before its adoption. It is declaratory
in form, and enabling and extending in effect.” Wong Kim Ark, 169 U.S. at 676.
Specifically, the Court explained, “ [t]he real object . . . in qualifying the words
‘[a]ll persons bom in the United States’, by the addition ‘and subject to the juris
diction thereof,’ would appear to have been to exclude, by the fewest and fittest
words (besides children of members of the Indian tribes, standing in a peculiar
relation to the National Government, unknown to the common law), the two
classes of cases — children bom of alien enemies in hostile occupation, and chil
dren of diplomatic representatives of a foreign state— both of which, . . . by
the law of England and by our own law, . . . had been recognized exceptions
to the fundamental rule of citizenship by birth within the country.”
Id. at 682.
In concluding its review of the relevant law, the Court summarized:
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 bom
of resident aliens, with the exceptions or qualifications (as old as
the rule itself) of children of foreign sovereigns or their ministers,
or bom 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 o f members of the Indian tribes
owing direct allegiance to their several tribes. The amendment, in
clear words and in manifest intent, includes the children bom within
the territory o f the United States, of all other persons, of whatever
race or color, domiciled within the United States. Every citizen or
345
Opinions o f the Office o f Legal Counsel in Volume 19
subject of another country, while domiciled here, is within the alle
giance and the protection, and consequently subject to the jurisdic
tion, o f the United States.
Id. at 693.
The Court then turned to the status o f Chinese persons in the United States
under the Constitution and the Chinese Exclusion Acts, which provided for exclu
sion and expulsion o f Chinese persons. After considering the effects of both
sources of law, the Court held that Wong Kim Ark had become a citizen at birth
by virtue o f the Fourteenth Amendment, reaffirming the constitutional principle
that “ [t]he fourteenth amendment, while it leaves the power, where it was before,
in congress, to regulate naturalization, has conferred no authority upon congress
to restrict the effect o f birth, declared by the constitution to constitute a sufficient
and complete right to citizenship.”
Id. at 703.
The principles set forth in Wong Kim Ark cannot be dismissed as having been
overtaken by contemporary judicial interpretation or current events. Both the
courts and commentators have consistently cited and followed the principles of
Wong Kim Ark. 15
I am aware o f only one statement of the contrary view that birthright citizenship
may be modified by a simple act of legislation. In their 1985 book, Professors
Peter Schuck and Rogers Smith argue for a novel “ reinterpretation” of the citizen
ship clause.16 Briefly, the authors recommend replacing the “ ascriptive” approach
to citizenship— which determines citizenship by an objective circumstance, such
as place o f birth or citizenship of parents— with a “ consensual” approach —
which makes political membership a product of mutual consent by the polity and
the individual. The authors argue that the Fourteenth Amendment may be reinter
preted to allow Congress to deny citizenship to children of illegal aliens by legisla
tion (as opposed to constitutional amendment). As support, the authors attempt
15 See INS v. Rios-Pineda, 471 U.S. 444, 4 4 6 (1985) (in habeas proceeding brought by deportable aliens, Court
noted that respondent had given birth to a ch ild , “ who, bom in the United States, was a citizen o f this country");
Plyler v. Doe,
437 U.S. 202, 211 n.10 (1982) (relying on Wong Kim Ark’s predominantly geographic inteipretation
o f the “ jurisd ictio n ” clause o f the Fourteenth Amendment); Rogers v. Bellei,
401 U.S. 815, 829-30 (1971) (citizen
ship clause is “ ‘declaratory o f existing rights, and affirmative o f existing law ,’ so far as the qualifications of being
bom in the U nited States, being naturalized in the United States, and being subject to its jurisdiction are concerned’ ’);
Kennedy v. Mendoza-Martinez,
372 U.S. 144, 159 n.10 (1963) (confirming that the citizenship clause “ is to be
interpreted in light o f pre-existing common-law principles governing citizenship” ); Morrison v. California,
291 U.S.
82, 85 (1934) (noting that although persons o f Japanese descent were not eligible to becom e citizens through natu
ralization, a person o f Japanese descent is a citizen o f the United States if he was bom within the United States,
citing Wong Kim Ark)-, 4 Charles Gordon et al.. Immigration Law and Procedure §92.03[2][e] (rev. ed. 1995) (noting
that any uncertainty regarding the applicability o f the ju s soli rule to children bom in this country was “ finally
resolved by the Fourteenth Amendment and the Supreme C ourt’s decision in U.S. v. Wong Kim Ark. There is now
no doubt that the constitutional rule of universal citizenship for all persons bom in the United States is unaffected
by the status o f their parents, except in minimal situations. Thus American citizenship is acquired by children bom
in the U nited States, even though their parents were always aliens, and even if the parents were themselves ineligible
to becom e citizens o f the U nited States. Nor has the acquisition o f citizenship been affected by the circumstance
that the ch ild ’s alien parents were in the United States temporarily o r even illegally at the time the child was bom .” )
(footnotes om itted).
16 Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity (1985).
346
Legislation Denying Citizenship at Birth to Certain Children Born in the United States
to show that the Framers of the Fourteenth Amendment intended the reference
to “ subject to the jurisdiction” of the United States to replace the existing
ascriptive common law principle with one of express mutual consent. As one
reviewer recommends, the authors’ proposals “ should be relegated to academic
debate.” 17
Schuck and Smith are proposing a change in the law, not a plausible reinter
pretation of the Constitution. Their theory would require repudiation of the lan
guage of the Constitution itself, the clear statements of the Framers’ intent, and
the universal understanding of 19th and 20th century courts. Indeed, the authors
themselves concede that there is no judicial precedent in support of their theory.
Moreover, as one review of the book notes on a more philosophical level, “ [t]he
examples [Schuck and Smith give in support of their consent theory] — the denial
of citizenship to Blacks, Indians and Chinese — are all deeply shameful for
contemporary Americans. This is not a history to build on.” 18
In short, the text and legislative history of the citizenship clause as well as
consistent judicial interpretation make clear that the amendment’s purpose was
to remove the right o f citizenship by birth from transitory political pressures. The
Supreme Court noted in Wong Kim Ark,19 “ [t]he same congress, shortly after
wards, evidently thinking it unwise, and perhaps unsafe, to leave so important
a declaration of rights to depend upon an ordinary act of legislation, which might
be repealed by any subsequent congress, framed the fourteenth amendment of the
constitution.” More recently, the Supreme Court noted in Afroyim v. Rusk20 that
the framers of the Fourteenth Amendment “ wanted to put citizenship beyond the
power of any governmental unit to destroy.” See also Rogers v. Bellei, 401 U.S.
at 835 (recognizing that “ Congress has no ‘power, express or implied, to take
away an American citizen’s citizenship without his assent,’ ” where that citizen
ship is attained by birth). By excluding certain categories of native-born persons
from U.S. citizenship, the proposed legislation impermissibly rescinds citizenship
rights that are guaranteed to those persons by the citizenship clause of the Four
teenth Amendment. Such a rescission of constitutionally protected rights is beyond
Congress’s authority.
17 Arthur C. Helton, Citizenship Without Consent, 19 N.Y.U. J. Int’l L. & Pol. 221, 226 (1986) (book review).
For incisive critiques o f Schuck and Sm ith's work, see also, David A. Martin, Membership and Consent: Abstract
or Organic?, 11 Yale J. Int’l L. 278 (1985) (book review); Gerald L. Neuman, Back to Dred Scott?, 24 San Diego
L. Rev. 485 (1987) (book review).
18 David Howarth, Citizenship Without Consent, 46 Cambridge L.J. 169, 170 (1987) (book review).
'» 169 U.S. at 675.
20
387 U.S. 253, 263(1967).
347
Opinions o f the Office o f Legal Counsel in Volume 19
II.
Congress is, of course, constitutionally free to propose, and the states to ratify,
any amendment to the Constitution.21 Such naked power undeniably exists. The
Constitution taken as a whole, however, stands for certain enduring principles.22
When Congress undertakes to tamper through the amendment process with the
most basic presuppositions of American constitutionalism, it should do so with
exceeding caution and utmost restraint. The proposition that all persons bom in
the United States and subject to its jurisdiction are citizens at birth is one of
those bedrock principles.
Academics may conceive of nation-states in which citizenship would not nec
essarily extend to those who lack the approval or mutual consent of existing citi
zens. But the country in question is not some theoretical conception, but our own
country with its real experience and its real history. It would be a grave mistake
to alter the opening sentence o f the Fourteenth Amendment without sober reflec
tion on how it came to be part o f our basic constitutional charter.
The constitutional principle with which these proposed amendments would
tamper flows from some of the deepest wellsprings of American history. From
the earliest days of our nation, with the tragic exception o f slaves and tribal
Indians, all those who were bom on its soil and subject to no foreign power
became its citizens. The simple fact of birth here in America was what mattered.
And then came D red Scott. In its most monumentally erroneous decision, the
Supreme Court created a monstrous exception to the common law rule that birth
on American soil to a free person was sufficient for American citizenship. The
Court held that no persons of African descent— mcluding free persons of African
descent— and none of their descendants for all time to come could ever be citi
zens of the United States regardless of their birth in America.
It was in the aftermath of this decision that one of our great political parties
was formed. In 1857, in the first of many speeches he was to give on the subject,
that party’s candidate for President in 1860 denounced Dred Scott's creation of
a class of persons bom on American soil and yet without rights and condemned
to pass their status on to future generations. Abraham Lincoln declared that the
defenders o f that decision had committed themselves to a principle that contra
dicted— and that made a “mere wreck — mangled ruin” — of the Declaration of
Independence.23
Afterwards, the nation plunged into the heart of darkness— a savage and brutal
civil war in which hundreds of thousands lost their lives on the battlefield. From
those ashes, a nation was reformed. It is no trivial matter that the Fourteenth
21 The only present exception to this rule is the proviso to Article V o f the Constitution that “ no State, without
its Consent, shall be deprived o f its equal Suffrage in the Senate.”
22 See W alter Dellinger, Constitutional Politics: A Rejoinder, 97 Harv. L. Rev. 446, 447 (1983).
23 Speech at Springfield, Illinois (June 26, 1857), in 2 The Collected Works o f Abraham Lincoln 406 (Roy P.
Baster, ed. 1953).
348
Legislation Denying Citizenship at Birth to Certain Children Born in the United States
Amendment opens with the principle that some would now change. From our
experience with D red Scott, we had learned that our country should never again
trust to judges or politicians the power to deprive from a class bom on our soil
the right of citizenship. We believe that no discretion should be exercised by
public officials on this question— there should be no inquiry into whether or not
one came from the right caste, or race, or lineage, or bloodline in establishing
American citizenship. Other nations may seek more consensual and perhaps more
changeable forms o f citizenship; for us, for our nation, the simple, objective,
bright-line fact of birth on American soil is fundamental.
Since the Civil War, America has thrived as a republic of free and equal citi
zens. This would no longer be true if we were to amend our Constitution in a
way that would create a permanent caste of aliens, generation after generation
after generation bom in America but never to be among its citizens. To have
citizenship in one’s own right, by birth upon this soil, is fundamental to our liberty
as we understand it. In America, a country that rejected monarchy, eich person
is bom equal, with no curse of infirmity, and with no exalted status, arising from
the circumstance o f his or her parentage. All who have the fortune to be bom
in this land inherit the right, save by their own renunciation of it, to its freedoms
and protections. Congress has the power to propose an amendment changing these
basic principles. But it should hesitate long before so fundamentally altering our
republic.
WALTER DELLINGER
Assistant Attorney General
Office o f Legal Counsel
349
