Constitution 101: Naturalization Clause

I know it seemed like we would never finish with the Commerce Clause, but we finally did. It is amazing how much litigation can come from just one sentence in our Constitution; however, the next clause is just as contentious, and even more timely, as we are expecting the U.S. Supreme Court to rule on birthright citizenship sometime soon.

Article I, Section VIII, Clause IV of the Constitution reads: “To establish an uniform Rule of Naturalization, and uniform Laws on the subject of Bankruptcies throughout the United States.” In this article, I will focus only on the first part: naturalization.

At face value, this clause seems very straightforward. It states that Congress — and only Congress — can make laws regarding who may be naturalized or the rules foreigners must follow to become citizens. This principle was reinforced in 1964 when a German immigrant who had come to the United States with her parents and became a citizen. When she later moved back to Germany as an adult, the State Department stripped away her citizenship, arguing that anyone who returned to their home country for more than three years lost their citizenship. However, the Supreme Court disagreed in Schneider v. Rusk (1964), ruling that the State Department did not have that authority. Only Congress can make such rules.

Furthermore, the Court ruled in United States v. Wong Kim Ark (1898), and later in Takahashi v. Fish & Game Commission (1948), that states cannot impose their own laws regarding citizenship. Again, only Congress.

From the very beginning of the nation, Congress has passed naturalization laws, and it is important to examine them, especially as the Supreme Court is currently doing the same thing.

During the Articles of Confederation (1781-1789), states were allowed to impose their own citizenship laws, which led many delegates at the Constitutional Convention to support the Naturalization Clause in order to create uniformity and allow citizens to move freely between states without jeopardizing their citizenship.

The very first Naturalization Act, passed by Congress in 1790, stated that any free white person of good character who had lived in the United States for two years could become a citizen. At the time of naturalization, their children under the age of 21 also became citizens. As the nation debates citizenship rules today, it is important to recognize that, from the very beginning, naturalization laws imposed waiting periods before citizenship could be granted.

Interestingly, if a father was a citizen and had a child born outside the United States, that child was considered a citizen, but the same was not true if only the mother was a citizen. If the father was not a citizen, then he was considered subject to another jurisdiction, and therefore his child was as well. This point will become important later.

In 1795, Congress changed the rules so that immigrants now had to wait five years and demonstrate good character before becoming citizens, while also requiring them to apply three years in advance. Then, in 1798, Congress passed the famous Alien and Sedition Acts, which extended the waiting period to 14 years and barred immigrants from countries with which the United States was quarreling, primarily France at the time. Those laws were repealed in 1802, reducing the waiting period back to five years.

One case worth examining is Rogers v. Bellei (1971). The Equal Nationality Act of 1934 allowed children born abroad to gain U.S. citizenship through their American mothers as well as their fathers; however, the law also stated that a child born to one citizen parent and one non-citizen parent had to live continuously in the United States for five years between the ages of 14 and 28 in order to retain citizenship.

Aldo Mario Bellei was born in Italy to an American mother and an Italian father. He was granted citizenship through his mother but lived most of his life in Italy and therefore lost his citizenship under the law.

Bellei sued, arguing that his constitutional rights under the Fifth and Fourteenth Amendments had been violated. The Fifth Amendment guarantees due process, while the Fourteenth Amendment states that “[a]ll 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.” Bellei’s lawyers cited two similar cases in which citizens had left the country and even voted in foreign elections, yet the Court ruled that they had not relinquished their citizenship.

In Bellei, although a federal court sided with him, the Supreme Court rejected his argument. In the earlier cases, the individuals had been born in the United States, while Bellei had neither been born nor naturalized in the United States and had barely lived here at all. Therefore, the Court ruled that he had never truly been “subject to the jurisdiction thereof.” Because Congress is authorized to make laws regarding naturalization, the Court upheld the loss of his citizenship.

I bring up this case because the Court currently is considering the meaning of the phrase “subject to the jurisdiction thereof” in relation to birthright citizenship. Some argue that a person who is in the United States illegally is not fully subject to U.S. jurisdiction and therefore their children born here should not automatically receive citizenship. While Bellei does not directly apply, the fact that he was born to a non-citizen father who was not subject to U.S. jurisdiction allowed Congress and the Court to deny him citizenship.

The biggest takeaway from the Naturalization Clause is that Congress bears complete responsibility for making laws dealing with naturalization. Maybe it is time for Congress to take that responsibility more seriously and pass meaningful immigration reform. However, without a constitutional amendment, any law they pass may still be subject to whatever decision the Court ultimately releases.

James Finck is a professor of American history at the University of Science and Arts of Oklahoma. He can be reached at james.finck@swoknews.com. Thanks to the Southwest Ledger and the Lawton Constitution for sharing his column.