A recurring question in American constitutional law has been who is a citizen of the United States. One of the defining events in the years immediately prior to the beginning of the Civil War was the opinion (PDF, 261KB) of Chief Justice Roger Taney of the Supreme Court of the United States in Scott v. Sanford, 60 U.S. (19 How.) 393, 404-407 that African-Americans were not citizens of the United States.
After the conclusion of the Civil War the Congress took steps to address this ruling. In 1866 the Congress enacted, over the veto of President Andrew Johnson, the Civil Rights Act, 14 Stat. 27, ch. 31 (PDF, 97KB) which provided a definition of citizenship.
However, because there were concerns that the Civil Rights Act might be subsequently repealed or limited the Congress took steps to include similar language when it considered the draft of the Fourteenth Amendment.
Citizenship is defined in the first clause of the first section of the Fourteenth Amendment as:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.
The amendment's language was drafted by the Joint Committee on Reconstruction. The language defining citizenship was not in the introduced version of the amendment (H. J. Res. 127), but, was moved by Senator Howard of Michigan on May 30, 1866. It was adopted by the Senate that day and later adopted by the House. The Senate's consideration of the Howard language can be found in volume 36 of the Congressional Globe, pages 2890 to 2897. The debate is available through A Century of Lawmaking for a New Nation (PDF, 1.67MB).
The debate in the Senate was conducted in a somewhat acrimonious fashion and focused in part on the difference between the language in the definition of citizenship in the Civil Rights Act of 1866 and the proposed amendment. Specific discussion reviewed the need to address the problem created by the Dred Scott decision, but also the possibility that the language of the Howard amendment would apply in a broader fashion to almost all children born in the United States.
The specific meaning of the language of the clause was not immediately obvious. In 1884 the Supreme Court of the United States in Elk v. Wilson, 112 U.S. 94, held that children born to members of Indian tribes governed by tribal legal systems were not U.S. citizens. In 1924 the Congress extended citizenship to all Indians by passing the Indian Citizenship Act, 43 Stat. 253, ch. 233.
In 1898 the Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649, ruled that a child born in the United States to non-citizen parents was a United States citizen under the Fourteenth Amendment.
Last Updated: 01/12/2021