State Citizenship Model

8/7/2019 State Citizenship Model

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I. AMERICAN CITIZENSHIP AND THE 14TH AMENDMENTA. The Constitutionally-protected principle ofjus soli grants citizenship to all

individuals born within the United States

Prior to the adoption of the 14th Amendment in 1868, U.S. citizenship was not defined bythe Constitution, but by the longstanding common law principle ofjus soli, which granted an

individual citizenship in a nation by virtue of his birth in that nation or its territorialpossessions.

1 U.S. courts rejected the alternative rulejus sanguinisin 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

The proposed statute attempts to eliminate citizenship by birth and resurrect citizenship

determined 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 countrys history

when citizenship depended on parentage as a matter of constitutional law was the eleven yearperiod following the notorious Dred Scottdecision, 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 first

section of the 14th Amendment (the Citizenship Clause) conclusively overturned the DredScottdecision and reaffirmed the jus soli principle, guaranteeing U.S. citizenship for the

descendants of slaves and for virtually everyone born in the United States, including the U.S.-born children of aliens.5 The 14th 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 not

subject 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 noted

that 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 14th Amendment, Senator Jacob Howard proposed

language 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 been

preserved, the 14th

Amendment did include every other class of persons.10

Congress ultimately

adopted Howards 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.


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By inventing a new concept of jurisdiction, the proposed statute aims to circumvent the

14th

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 the

Fourteenth Amendment to the United States Constitution, namely

that the person is a child of at least one parent who owes no

allegiance to any foreign sovereignty, or a child without

citizenship or nationality in any foreign country. For the purposes

of this statute, a person who owes no allegiance to any foreign

sovereignty 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 foreign

country.

The proposed statute claims to follow the 14th Amendment. However, these words have a

precise and universally accepted legal meaning, which does not allow for the strained

interpretation that proponents demand we adopt. Blacks Law Dictionary defines jurisdictionas [a] governments general power to exercise authority over all persons and things within itsterritory[.]

11This definition is confirmed by over one hundred years of Supreme Court rulings,

a plain reading of the Constitutions text, and common sense.

In 1898, the Supreme Court issued a seminal decision on the right of citizenship grantedby the 14th 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 ofpersons of theChinese race, especially Chinese laborers,

13could be applied to deny citizenship rights to their

U.S. born children. After a lengthy discussion of the history of the 14th

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 subject to thejurisdiction thereof was intended only to confirm the two pre-existing exceptions to jus soli for

the children of foreign diplomats and occupying enemy soldiers who are treated as if they are not

physically present in the country of their birth and thus are not subject to its laws or jurisdiction.

All other children aresubject to the countrys laws, however, and are necessarily subject to itsjurisdiction.

The statutes 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 individuals 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 Court

explained, allegiance was not restricted to natural-born subjects and naturalized subjects, or to

those who had taken an oath of allegiance.14

The Court has ruled definitively on this issue, stating, [t]he amendment, in clear words

and 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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subject of another country, while domiciled here, is within the allegiance and the protection, and

consequently subject to the jurisdiction, of the United States.15

The breadth of this languagedecidedly includes children born in the United States to parents who are not legally resident, a

fact consistently reinforced by the Supreme Court in later decisions.

In Plyler v. Doe, the Court examined the 14thAmendments Equal Protection Clause and

firmly rejected the notion that persons who have entered the United States illegally are not

within the jurisdiction of a State even if they are present within a States boundaries and subject

to its laws.16 In making this determination, the Court critically noted that no plausible

distinction with respect to Fourteenth Amendment jurisdiction can be drawn between resident

aliens based on the legality of their arrival.17

Three years later, in INS v. Rios-Pineda, anunanimous Court further declared that a child born in the United States to undocumented

immigrant parents was a United States citizen by the fact of her birth.18

Most recently, the Court

in Hamdi v. Rumsfeldnoted that a person born in Louisiana to parents of Saudi Arabian

nationality was undoubtedly an American citizen,19

despite objections that his parents werealiens on temporary work visas at the time of his birth.20

A plain reading of the 14th Amendmentand common sensetell us that there can be nodebate as to its meaning. As James Ho, former Solicitor General of Texas observed:

When we speak of a business that is subject to the jurisdiction of a

regulatory agency, it must follow the laws of that agency, whether

it likes it or not. When we speak of an individual who is subject tothe jurisdiction of a court, he must follow the judgments and orders

of that court, whether he likes it or not . . . . Likewise, aliens

cannot immunize themselves from U.S. law by entering our

country in violation of Title 8. Indeed, illegal aliens are suchbecause they are subject to U.S. law.21

II. THE STATE CITIZENSHIP PROPOSALA. The proposed statute unconstitutionally redefines state citizenship in

contradiction to both the plain language of the 14th

Amendment and settled

case law

The proposed state citizenship statute defines a person as a citizen of a state if: (1) theperson is born in the United States and subject to the jurisdiction thereof and (2) the person is a

resident of the state of [proposed state], as defined by [sta te code xyz]. While the first part of

the statute hews closely to the text of the 14th

Amendment, in the second part the statute

misstates the meaning of subject to the jurisdiction thereof by inappropriately equatingjurisdiction with sworn allegiance, as discussed above. Even though the proposed definition of

state citizenship purports to limit itself only to the purposes of this statute, the statute

nevertheless violates the 14th

Amendment.

1. The proposed statute attempts to revive the concept of primary statecitizenship, which the 14th Amendment firmly rejects.


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The 14th

Amendment clearly defines state citizenship, stating: All persons born or

naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the UnitedStates and of the State wherein they reside.

22 The Citizenship Clause, therefore, establishesunder the Constitutionnot only a complete definition of national citizenship but of state

citizenship as well.23

On a more fundamental level, the Clause also firmly establishes the

primacy of nationalcitizenship, rejecting the suggestion in Dred Scottthat state citizenship isprimary.24 With this understanding, state citizenship is nowand has consistently beendetermined by where a citizen of the United States chooses to reside.

25By definition, it is not

possible to be citizen of the United States without also being a citizen of the state in which oneresides.

The statute, with its more restrictive definition, contradicts the unmistakable language

and purpose of the 14th

Amendment and settled case law by uncoupling state citizenship from

residency and national citizenship. While the proposed statute claims to draw its interpretation

of citizenship from the meaning that it bears in Section 1 of the Fourteenth Amendment, thisinterpretation is fatally flawed and factually inaccurateand no jurisdiction within the United

States has chosen to adopt it. Such a statute would create a situation in which a person born in

the United States (i.e., a natural-born citizen of the United States) would be unable to become acitizen of the state where he or she resides. The proposed statute is, in effect, an attempt to

revive the concept of primary state citizenship in contravention of the 14 th Amendment.

2. States do not have the authority to amend the definition of state citizenshipbecause it is a matter of Constitutional and federal law.

The Supreme Court has unequivocally said that states cannot define citizenship. In the

seminal case, Saenz v. Roe, the Supreme Court held that California had violated the 14th

Amendment by withholding certain state benefits to newly arrived residents, thus creatingdifferent categories of state citizenry. The Court held that these durational residency

requirements impaired the fundamental right of U.S. citizens to travel interstate, noting that:Citizens of the United States . . . have the right to choose to be citizens of the State wherein

they reside. The States, however, do not have any right to select their citizens.26

The proposed statute, however, goes much further than simply subdividing citizenship; it

attempts to exclude an entire population ofConstitutionally mandated American citizens. The

separate identity of state citizenship does not, by itself, grant to states the authority to exclude

citizens based on parentageand certainly not in light of the 14th

Amendments plainlanguage.27

B. Even if the states had constitutional authority to amend state citizenship, theproposed statute would nevertheless violate the 14th Amendment by denyingU.S. citizens the privileges or immunities of U.S. citizenship.

Even if we assume that the states didhave the ability to redefine their citizenry, the

statute also violates the 14th

Amendment because it impinges upon the Privileges or Immunities

Clause, which states that No State shall make or enforce any law which shall abridge theprivileges or immunities of citizens of the United States . . . .

28 Today, this Clause is generally

interpreted to apply to only those rights and abilities that are derived from the federal nature of


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national citizenship.29

The Slaughter-House Cases explicitly included one such privilege in this

category: the privilege of a citizen of the United States [to] become a citizen ofany State of the

Union by a bonafide residence therein, with the same rights as other citizens of that state.30

Furthermore, the proposed statute is not saved from unconstitutionality by its assertion

that state citizenship shall not confer upon the holder thereof any right, privilege, immunity, or

benefit under law. Not only does this section hold no real meaning (since many rights and

abilities are tied to residency), but the statute remains unconstitutional since the right to become

a citizen in the state wherein you reside is the very privilege lost if the statute were passed.

III. PRACTICAL CONSEQUENCES AND COSTSBeyond the fatal constitutional infirmities of the proposed legislation, its adoption would

likely incur significant costs on the State of [ ]. Proponents of the statute have openly admitted

that they intend to provoke lawsuits in order to get their interpretation of the 14th Amendment infront of the Supreme Court. For the reasons outlined above, it is a near certainty that in

defending such lawsuits the state will lose.31 It is also a certainty that in the process of doing so,the state will have to spend millions of dollars mounting a legal defense during a period ofseverely limited state finances. In addition, the state attorney general will have to tie up scarce

staff resources at a time when numerous other pressing state issues demand attention.

Furthermore, in passing such a law the state will likely be exposing any state official who

implements the new statute to personal liability. 42 U.S.C. Sec. 1983, originally known as the

Ku Klux Klan Act of 1871, allows private individuals to recover compensatory damages(including for emotional distress) and even punitive damages from state officials for violating the

individuals constitutional rights.32

While state officials are personally liable for any damages,

many states indemnify their officials, so the state itself may end up footing the bill. Moreover,

because the constitutional right to citizenship by birth is clearly established, state officials can beheld personally liable even if they were obeying a contradictory state law.33

IV. CONCLUSIONAs evidenced by the discussion above, it is clear that the proposed statute is

unconstitutional in light of the intent of the framers of the 14th

Amendment, its plain language,and over a century of Supreme Court interpretations of its meaning. Moreover, the state may

incur unintended and devastating legal costs and liabilities in passing such legislation.


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1See James C. Ho, Defining American: Birthright Citizenship and the Original Understanding of the

14th Amendment, 9 Green Bag 367, 369 (2006).

2

Margaret Mikyung Lee, CONG.RESEARCH SERV., RL 33079, BIRTHRIGHT CITIZENSHIP UNDER THE14TH AMENDMENT OF PERSONS BORN IN THE UNITED STATES TO ALIEN PARENTS 1 (2010) (citing

BLACKS LAW DICTIONARY 775 (5th Ed. 1979)).

3See Legislation Denying Citizenship at Birth to Certain Children Born in the United States, 19 Op.

O.L.C. 340 (1995), 1995 OLC LEXIS 42, at *6; United States v. Wong Kim Ark, 169 U.S. 649, 693

(1898).

4See Scott v. Sandford, 60 U.S. 393 (1856); Ho, supra note 1, at 369.

5James C. Ho, Birthright Citizenship, the Fourteenth Amendment, and the Texas Legislature, 12 TEX.

REV.L.&POL.161, 162 (2007).

6Special treatment is reserved for Native Americans. Wong Kim Arkaddresses this directly, Indian

tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign states,but were alien nations, and thus not subject to the jurisdiction of the U.S. Wong Kim Ark,169 U.S. at

681.

7 The Civil Rights Act of 1866, ch. 31, 1, 14 Stat. 27, 27 (1866).

8 CONG.GLOBE, 39TH CONG.,1ST SESS. 498 (1866).

9 CONG.GLOBE, 39TH CONG.,1ST SESS. 2890 (1866) (emphasis added).

10Id.

11 BLACKS LAW DICTIONARY 927 (9th ed. 2009) (emphasis added).

12Wong Kim Ark, 169 U.S. 649.

13

Id. at 653.14Id. at 655. The common law treated children born to English parents living outside of England as being

born out of the kings allegiance, and out of his majestys realms and dominions, id. at 461, and as a

consequence such children had to gain English citizenship through naturalization. All children born

within the kings territory, by contrast, were considered within his allegiance and thus citizens by birth,

regardless of who their parents were, with the exceptions mentioned above of those born to diplomats oroccupying soldiers. See id.

15Id. at 474 (emphasis added). Although the Slaughter-House Cases and Elk v. Wilkins may be cited as

representing a contrary view, the Court in Wong Kim Arkspecifically disparaged the single statement

from the Slaughter-House Cases on this issue and noted that the Elk v. Wilkins decision was limited to the

situation of Native Americans. Id. at 678, 682; see generally The Slaughter-House Cases, 83 U.S. 36

(1872); Elk v. Wilkins, 112 U.S. 94 (1884).16

Plyler v. Doe, 457 U.S. 202, 211 (1982).

17Id. at 212 n.10 (italics omitted).

18 471 U.S. 444, 446 (1985).

19542 U.S. 507, 510 (2004).

20 Ho, supra note 1, at 376.


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21Id. at 368-369 (citations omitted).

22 U.S.CONST. amend. XIV, 1 (emphasis added).

23See The Slaughter-House Cases, 83 U.S. at 73; LAWRENCE TRIBE,AMERICAN CONSTITUTIONAL LAW,

72 (3d ed. 2000).

24See The Slaughter-House Cases, 83 U.S. at 73; see also Arver v. United States (Selective Draft LawCases), 245 U.S. 366, 389 (1918) ([The Fourteenth Amendment caused] the citizenship of the UnitedStates to be paramount and dominant instead of being subordinate and derivative.); Hague v. Comm. for

Indus. Org., 307 U.S. 496, 510 (1939) ([From the 14th amendment onward] citizenship of the UnitedStates became primary and citizenship of a State secondary.).

25Saenz v. Roe, 526 U.S. 489, 506 (1999) (The Citizenship Clause of the Fourteenth Amendment

expressly equates [state] citizenship with residence.); The Slaughter-House Cases, 83 U.S. at 74 ([acitizen of the United States] must reside within the State to make him a citizen of it.). Justice Harlan inhis dissent from Afroyim v. Rusknotes that the Citizenship Clause was specifically intended to both to

create a basis of federal citizenship which was indisputably independent of state citizenship, [and that

would] preclude any effort by state legislatures to circumvent the Amendment by denying freedmen state

citizenship. 387 U.S. 253, 284 (1967) (Harlan, J., dissenting). Though it is in a dissent, Harlansanalysis is on point regarding the historical source of the 14 th Amendment.

26Saenz, 526 U.S. at 510-11 (emphasis added) (internal citations omitted).

27See Madden v. Kentucky, 309 U.S. 83, 93 (1940) (noting that states possess the sovereignty to manage

their own affairs except where the Constitution provides otherwise, referencing the states power to taxstate citizens).

28 U.S.CONST. amend. XIV, 1 (emphasis added).

29See TRIBE, supra note 23, 73 (describing how the Court in the Slaughter-House Cases severelylimited the Privileges or Immunities Clause).

30The Slaughter-House Cases, 83 U.S. at 79-80 (emphasis added). See also McDonald v. City of

Chicago, 130 S. Ct. 3020, 3031 (2010) (declining to overhaul the understanding of the Privileges or

Immunities Clause derived from The Slaughter-House Cases).

31Legislative proposals repealing birthright citizenship have failed before in California and Texas as well

as multiple times in the House of Representative. In the 111th Congress alone four bills have been

introduced and none have progressed beyond introduction. See H.R. 126, 111th Cong. (2009); H.R. 994

301, 111th Cong. (2009); H.R. 1686, 111th Cong. (2009); H.R. 5002 7, 111th Cong. (2009). See Lee,

supra note 2, at 9.

32See Douglas Werner Huth and Frank J. Cavico, The Personal Liability of the Public Sector

Administrator Pursuant to 42 U.S.C. Section 1983,

http://www.huizenga.nova.edu/6240/Articles/Section1983LiabilityArticle.htm.

33

See F. Buddie Contracting v. Cuyahoga Cmty. Coll. Dist., 31 F. Supp. 2d 584, 589-90 (N.D. Ohio1998).

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