The U.S. Constitution's Fourteenth Amendment

The Fourteenth Amendment, ratified in 1868, is one of the most important — and one of the most controversial — parts of the Constitution. It’s a meaty amendment, dealing with some pretty weighty topics. These include:

  • The definition of citizenship

  • The obligation of the states to uphold the privileges and immunities of United States citizens

  • Due process

  • The obligation of the states not to deny “the equal protection of the laws”

  • How representation in Congress is calculated

  • Disqualification from holding office

  • Denial of any obligation to compensate former slave owners for the emancipation of their slaves

Defining Citizenship under the Fourteenth Amendment

The first clause of Section 1 of the Fourteenth Amendment defines citizenship:

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.

The definition looks pretty straightforward, but it isn’t. Here’s why:

  • United States citizenship is based on birthright rather than on the “right of blood.” Birthright citizenship means that citizenship depends on where a person is born rather than who his or her parents are.

    The birthright basis of U.S. citizenship was confirmed by the U.S. Supreme Court in 1898. This ruling was made in the case of Wong Kim Ark, who was born in the United States to Chinese noncitizen parents. The court decided that he was a U.S. citizen even though his parents were not.

    Chief Justice Melville Fuller in his dissenting opinion in Wong’s case put his finger on a problem with the birthright rule: “It is unreasonable to conclude that ‘natural born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country . . . were eligible to the presidency, while children of our citizens, born abroad, were not.”

  • The definition of citizenship in the Fourteenth Amendment is very different from what it would have been at the time when the Bill of Rights was ratified in 1791. Back then, not everybody who was born in the United States “and subject to the jurisdiction thereof” was a citizen, because slaves were not recognized as citizens even though most of them had been born in the United States.

This definition of citizenship contains a twofold test. To be a citizen you have to be “born or naturalized in the United States” and “subject to the jurisdiction thereof.” Let’s see how that pans out in practice:

  • The children of U.S. citizens are automatically citizens if they are born in the United States.

  • Laws passed by Congress have also given automatic U.S. citizenship to children born outside the United States, provided at least one of their parents is a U.S. citizen — even if they are born out of wedlock. (Precise conditions vary according to the dates of birth of the children concerned.)

  • Any child under 18 who has been adopted by a U.S. citizen gets citizenship immediately on arrival in the United States under the Child Citizenship Act of 2000.

  • The children of aliens who are lawfully in the United States are automatically U.S. citizens — provided the children are born in the United States.

  • What about the children of illegal aliens? The law is clear on this point. All children born in the United States are U.S. citizens, regardless of their parents’ legal status. But this law is not universally popular among Americans.

  • Where does “subject to the jurisdiction thereof” come in? This provision excludes the children of foreign diplomats from becoming U.S. citizens, even if they are born in the United States. Don’t foreign diplomats and their kids have to obey U.S. law while they’re in the United States? No. The best evidence of their privileged position is the mountain of parking and speeding tickets that diplomats and their families are allowed to ignore every year.

What about disloyal citizens? Can they be stripped of their citizenship on the ground that they have rejected the jurisdiction of the United States? No. In 2004, the U.S. Supreme Court heard a case involving Yaser Hamdi. Hamdi was allegedly fighting on the side of the Taliban when he was captured in Afghanistan in 2001.

Could the U.S. government hold him in Guantanamo Bay and deny him due process as an “illegal enemy combatant”? No, said the Supreme Court, because he was a U.S. citizen. He was born in the United States and raised in Saudi Arabia, of which he was also a citizen. Faced with a judicial brick wall, the U.S. government made a deal with Hamdi. In return for his release, Hamdi gave up his U.S. citizenship and promised to live permanently in Saudi Arabia.

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