Citizenship

Citizenship in the United States

Definition of Citizenship

Citizenship means membership in a political community. Citizenship may pertain either to a state or to the United States or to both. Each status carries with it certain obligations of the citizen and also gives the citizen the enjoyment of full civil rights (in U.S. law) that are protected against encroachment by governmental power. (Revised by Ann De Vries)
One’s status as a person who owes allegiance to the United States and is entitled to all the rights and privileges guaranteed and protected by the Constitution.

Practical Information

Citizenship is usually obtained by birth on American soil. This is known as the rule of jus soli. This rule applies to anyone except children of foreign sovereigns or their ministers. There is also the rule of jus sanguinis or “law of blood,” which applies when children of Americans are born abroad. Aliens may also be admitted to citizenship under a process known as naturalization. Congress is empowered to establish all rules and qualifications for naturalization. Citizenship may also be conferred by federal courts as authorized by Congress. Since the Civil Rights Act of 1866, all persons born or naturalized in the United States are citizens of the United States. The Fourteenth Amendment reiterated that language in Section 1. The term dual citizenship refers to a person’s status as a citizen of the United States and the state in which he or she resides, or to the holding of citizenship in two countries. (1)

Analysis and Relevance

Citizenship is elaborated in two privileges and immunities clauses in the U.S. Constitution. The Constitution requires, for example, that citizens of a particular state have parity with citizens of all other states. The Slaughterhouse Cases (16 Wallace 36: 1873) emphasized the distinct character of federal and state citizenship. Slaughterhouse held that privileges and immunities conferred by state citizenship were outside federal reach through the Fourteenth Amendment. Such an interpretation took a very narrow view of the substance of federal citizenship. It covered only such things as interstate travel and voting. While subsequent decisions have extended the meaning of citizenship, Slaughterhouse is still controlling in that it precludes use of privileges and immunities language in protecting citizens by federal authority. Revocation of naturalized citizenship may occur following a formal denaturalization proceeding. The Court has imposed restrictions on the power of government to revoke citizenship, but there is a generally recognized right of expatriation that permits voluntary renunciation of citizenship. (2)

Citizenship (Theory) in the United States Constitution

According to the Encyclopedia of the American Constitution, the “power afforded Congress in this spare textual authorization (Citizenship) has long been interpreted as plenary, effectively insulating from constitutional challenge congressional”. In the Encyclopedia´ same title, but relating to Historical Development, this reference about the U.S. Constitution noted that the “concept of citizenship articulated during the american revolution and adjusted to the special circumstances of an ethnically diverse federal republic in the nineteenth century developed from English theories of allegiance and of the subject’s status.”

In fact, Article I, section B, of the Constitution authorizes Congress “to establish a uniform Rule of naturalization.” The Supreme Court has declared U.S. citizenship “a most precious right,” which is regarded by many as “the highest hope of civilized men.” The Supreme Courte recognized the relevance of U.S. citizenship, and therefore, in Afroyim v. Rusk (1967),  the Supreme Court stated that Congress may not deprive a person of the citizenship.

14th Amendment

In the U.S. Constitution, the phrase “Citizen of the United States” appears. Since this expression appears within a Constitution, not a statute, the interpretation of this phrase may be influenced by the meaning intended by the Constitution “fathers”.

After the Civil War, in drafting the 14th Amendment, the U.S. Congress was looking to make its federal laws (the Enforcement Act, the Freedman’s Bureau Act, and the Civil Rights Act of 1866) a part of the United States Constitution.

In United States v. Otherson, the Supreme Court held important to review the historical foundations of the Enforcement Act. In its approach to the Enforcement Act´s intent, the Court studied the Senator Stewart remarks, since he sponsored the bill, which included the following statements from the Senator:

(the bill) “simply extends to foreigners, not citizens, the protections of our laws”.

“This bill extends [the equal protection of laws] to aliens, so that all persons who are in the United States shall have the equal protection of our laws.”

In the case Van Valkenburg v. Brown, the Court held that “No white person born within the limits of the United States and subject to their jurisdiction…owes his status of Citizenship to the recent amendments to the Federal Constitution.”

In Hurd v. Hodge (1948), the court stated, in relation to the Civil Rights Act of 1866, that “reference must be made to the scope and purpose of the 14th Amendment; for that statute and the Amendment were closely related both in inception and in objectives which Congress sought to achieve”. The Court further held that the aim of the 14th Amendment, “was to incorporate the guaranties of the Civil Rights Act of 1866 in the organic law of the land”.

Justice Thurgood Marshall observed that, “the Congress that passed the 14th Amendment is the same Congress that passed the 1866 Freedman’s Bureau Act”.

In 1987, Justice William Brennan, regarding the 14th Amendment, noted that the “main target of the Civil Rights Act of 1866 were the ‘black codes’ enacted in the Southern States…”

Case Law

  • “The persons declared to be citizens are, “All persons born or naturalized in the United States and subject to the jurisdiction thereof.” The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject…” (Elk v. Wilkins (1884))
  • “The privileges and immunities clause of the 14th Amendment protects very few rights because it neither incorporates the Bill of Rights nor protects all rights of individual citizens. (See Slaughter House cases (1873)). Instead this provision protects only those rights peculiar to being a citizen of the federal government; it does not protect those rights which relate to state citizenship.” (Jones v. Temmer)
  • “…the first eight amendments have uniformly been held not to be protected from state action by the privilege and immunities clause [of the 14th Amendment].” (Hague v. CIO)
  • “The right to trial by jury in civil cases, guaranteed by the 7th Amendment…and the right to bear arms guaranteed by the 2nd Amendment … have been distinctly held not to be privileges and immunities of citizens of the United States guaranteed by the 14th Amendment … and in effect the same decision was made in respect of the guarantee against prosecution, except by indictment of a grand jury, contained in the 5th Amendment … and in respect of the right to be confronted with witnesses, contained in the 6th Amendment … it was held that the indictment, made indispensable by the 5th Amendment, and trial by jury guaranteed by the 6th Amendment, were not privileges and immunities of citizens of the United States, as those words were used in the 14th Amendment. We conclude, therefore, that the exemption from compulsory self-incrimination is not a privilege or immunity of National citizenship guaranteed by this clause of the 14th Amendment.” (Twining v. New Jersey)
  • “There are, then, under our republican form of government, two classes of citizens, one of the United States and one of the state”. (Gardina v. Board of Registrars of Jefferson County (1909))
  • “The governments of the United States and of each state of the several states are distinct from one another. The rights of a citizen under one may be quite different from those which he has under the other” (Colgate v. Harvey (1935))
  • “…rights of national citizenship as distinct from the fundamental or natural rights inherent in state citizenship” (Madden v. Kentucky (1940))
  • “There is a difference between privileges and immunities belonging to the citizens of the United States as such, and those belonging to the citizens of each state as such” (Ruhstrat v. People (1900))
  • “We have in our political system a government of the United States and a government of each of the several States. Each one of these governments is distinct from the others, and each has citizens of it’s own…” (United States v. Cruikshank (1875))
  • “It is quite clear, then, that there is a citizenship of the United States, and a citizenship of a state, which are distinct from each other and which depend upon different characteristics or circumstances in the individual” (Slaughter-House Cases (1873))

Legal Materials

It can be very hard to find out if someone is a U.S. citizen unless they show you their birth certificate, passport or naturalization papers. As far as I can tell, there is no central list of citizens – the states keep birth records and the INS has naturalization records, but these aren’t available to the public. If necessary, check news databases for a clue as to where the person was born (people born in the U.S. generally have U.S. citizenship) or whether they’ve been naturalized.

For someone in the naturalization process, you can check their progress with the USCIS Check Case Status database, provided you have the Receipt Number.

De-Naturalization: As of about 1997 or 1998, the names of people who give up their U.S. citizenship are published quarterly in the Federal Register.

Evidence of Claim to U.S. Citizenship Under Sections 301 and 309 of the Immigration and Nationality Act (INA)

The evidence to establish citizenship claims is described briefly in 22 CFR 50.2-50.5 and in more detail in 22 CFR 51.42 and 22 CFR 51.43. 22 CFR 51.45 specifies that an applicant may be required “to submit other evidence deemed necessary to establish his or her U.S. citizenship or nationality.”

Evidence in support of a claim to U.S. citizenship through birth abroad to one or both U.S. citizen parents under the provisions of sections 301 and/or 309 INA includes but is not limited to:

  • A birth certificate or other proof of the child’s birth to a U.S. citizen mother, father, or both;
  • The parents’ marriage certificate, if the child was born in wedlock or if the child claims legitimation through the marriage of the parent;
  • Form DS-5507 or other evidence of the child’s legitimacy or legitimation, if the child was born out of wedlock (unless the claim is through the mother under section 309(c));
  • Evidence that at least one parent was a U.S. citizen at the time of the child’s birth; and
  • Evidence of that parent’s physical presence in the United States, in qualifying employment abroad, or as the dependent unmarried son or daughter and a member of the household of a person so employed, prior to the child’s birth for the length of time required by the section of law under which the child is claiming U.S. citizenship.

Those persons born before October 10, 1952, who acquired U.S. citizenship pursuant to section 301(a)(7), as made applicable by the Act of March 16, 1956, must also prove that they complied with or were exempted from the applicable retention requirements.

Adults wishing to have their citizenship status adjudicated should complete Form DS-11 and Form DS-4079, Questionnaire Information for Determining Possible Loss of U.S. Citizenship. Citizenship claims of a person under the age of 18 may be adjudicated on the basis of a passport/registration application signed, as appropriate, by the applicant, a parent, legal guardian, or person acting in loco parentis or on the basis of an application for a Report of Birth completed by a parent or legal guardian.

Concept of Citizenship

In the U.S., in the context of Democracy and Citizenship, Citizenship has the following meaning: Membership in a political community (either by being native-born to the community or being “naturalized”) giving one the rights, privileges, and immunities of affiliation with the community, along with duties of membership. (Source of this definition of Citizenship : University of Texas)

Citizenship

Eligibility of Citizenship requirements in relation to Public Officers

Find out in this American legal Encyclopedia the information on Eligibility of Citizenship requirements in relation to Public Officers (and in the context of local government law).

Concept of USCIS

In relation to immigration and citizenship, USCIS is defined as: An abbreviation (see more United States law abbreviations in the legal abbreviations platform of this Project) for U.S. Citizenship and Immigration Services, an agency of the Department of Homeland Security.

Naturalization and Citizenship in Constitutional Law

A list of entries related to Naturalization and Citizenship may be found, under the Naturalization and Citizenship category, in the United States constitutional law platform of this legal Encyclopedia.

Citizenship (Diversity Jurisdiction)

This section introduces, discusses and describes the basics of citizenship. Then, cross references and a brief overview about Diversity Jurisdiction is provided. Finally, the subject of Jurisdiction in relation with citizenship is examined. Note that a list of cross references, bibliography and other resources appears at the end of this entry.

Resources

See Also

  • Democracy
  • Citizenship

Eligibility of Citizenship requirements in relation to Public Officers

Find out in this American legal Encyclopedia the information on Eligibility of Citizenship requirements in relation to Public Officers (and in the context of local government law).

Concept of USCIS

In relation to immigration and citizenship, USCIS is defined as: An abbreviation (see more United States law abbreviations in the legal abbreviations platform of this Project) for U.S. Citizenship and Immigration Services, an agency of the Department of Homeland Security.

Naturalization and Citizenship in Constitutional Law

A list of entries related to Naturalization and Citizenship may be found, under the Naturalization and Citizenship category, in the United States constitutional law platform of this legal Encyclopedia.

Resources

Notes and References

  1. Definition of Citizenship from the American Law Dictionary, 1991, California
  2. Id.

See Also

  • Privileges and Immunities (Judicial Function)
  • Federal Register
  • Corporate Citizenship
  • Bill Of Rights Interpretation
  • Civil Rights And Civil Liberties
  • Citizenship Act Of 1907
  • Civil Rights Act of 1866
  • Birthright Citizenship
  • Cable Act (Naturalization And Citizenship Of Married Women)
  • Civil Rights Act of 1875
  • Rights Protected
  • Constitution Amendments
  • Married Women’s Citizenship Act
  • Civil Rights Cases
  • Civil Rights Removal
  • Rights Protected Summary
  • Civil Rights For Hispanics And Asian Americans
  • Constitutional Protection Of Personal Rights
  • Rights Of Women

Further Reading

Citizenship: Open and Free Legal Research of US Law

Federal Primary Materials

The U.S. federal government system consists of executive, legislative, and judicial branches, each of which creates information that can be the subject of legal research about Citizenship. This part provides references, in relation to Citizenship, to the legislative process, the federal judiciary, and the primary sources of federal law (cases, statutes, and regulations).

Federal primary materials about Citizenship by content types:

Laws and Regulations

US Constitution
Federal Statutory Codes and Legislation

Federal Case Law and Court Materials

U.S. Courts of Appeals
United States courts of appeals, inclouding bankruptcy courts and bankcruptcy appellate panels:

Federal Administrative Materials and Resources

Presidential Materials

Materials that emanate from the President’s lawmaking function include executive orders for officers in departments and agencies and proclamations for announcing ceremonial or commemorative policies. Presidential materials available include:

Executive Materials

Federal Legislative History Materials

Legislative history traces the legislative process of a particular bill (about Citizenship and other subjects) for the main purpose of determining the legislators’ intent behind the enactment of a law to explain or clarify ambiguities in the language or the perceived meaning of that law (about Citizenship or other topics), or locating the current status of a bill and monitoring its progress.

State Administrative Materials and Resources

State regulations are rules and procedures promulgated by state agencies (which may apply to Citizenship and other topics); they are a binding source of law. In addition to promulgating regulations, state administrative boards and agencies often have judicial or quasi-judicial authority and may issue administrative decisions affecting Citizenship. Finding these decisions can be challenging. In many cases, researchers about Citizenship should check state agency web sites for their regulations, decisions, forms, and other information of interest.

State rules and regulations are found in codes of regulations and administrative codes (official compilation of all rules and regulations, organized by subject matter). Search here:

State opinions of the Attorney General (official written advisory opinions on issues of state law related to Citizenship when formerly requested by a designated government officer):

Tools and Forms

Law in Other Regions

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