U.S. Constitution

The Law: Foundation document for all legal authority in the United States

Date: Became effective on March 4, 1789

Significance: As the fundamental law of the United States, the U.S. Constitution empowers the U.S. Congress to pass federal immigration and citizenship laws providing such laws do not violate the provisions of the Constitution itself, particularly those included in the Bill of Rights and the Fourteenth Amendment.

The U.S. Constitution, which became effective on March 4, 1789, replaced the Articles of Confederation, which had been the governing charter of the United States as a confederation of thirteen independent states since 1781. The people of the newly independent United States had found their confederation of former British colonies was too weak a structure to govern the nation. The new Constitution established the basic institutions of the national government and granted various powers to the legislative, executive, and judicial branches it created. As long as those institutions acted within the scope of their constitutionally granted powers, their enactments were, according to Article VI of the Constitution, the “supreme law of the Land.”

One of the areas in which the Articles of Confederation had proven weak and disorganized was the field of immigration and naturalization. Thus, the constitutional Framers authorized Congress, in Article I, section 8, to establish a uniformstandard for naturalization and citizenship, subject always to limits placed on Congress by the Constitution itself. Most notably, Congress was not authorized to prohibit the importation of slaves until 1808.

The Framers also limited the office of the president to those who were “natural born” citizens if they were born after the establishment of the United States. By this provision, the Framers generally chose the international legal principle of jus soli (law of the soil) instead of jus sanguinis (law of the blood) as the basis of citizenship in the United States. While this concept of jus soli may seem a natural basis for citizenship to modern Americans, other developed nations, such as Germany and Japan, have continued to grant citizenship only to persons whose parents are ethnic Germans or Japanese respectively. Consequently, immigrants are allowed to reside in Germany and Japan for certain periods, but they can never become citizens of those countries. Children of immigrants who are born in Germany do not automatically become Germancitizens; they may naturalize, but only by following a very complicated process when they are between the ages of sixteen and twenty-three. In Japan, children of immigrants may not become citizens no matter how many generations of their ancestors may have resided in Japan.

The U.S. Constitution was first printed in the Pennsylvania Packet
The U.S. Constitution was first printed in the Pennsylvania Packet, a daily newspaper, on September 19, 1787. (Library of Congress)

That the United States was—from the beginning— willing to allow immigrants and their children to become citizens was an almost inevitable outcome of the wide diversity of ethnic groups that settled Great Britain’s North American colonies. This decision also affected patterns of immigration repeatedly in American history. Throughout most of the twentieth century, the United States accepted more immigrants than all other nations on earth combined.

Before the U.S. Civil War (1861-1865), the federal government gave a great deal of leeway to the individual states to control naturalization of immigrants, despite the authority that the U.S. Congress had been granted in Article I, section 8 of the Constitution. Members of one class of “immigrants”— African American slaves—were never granted citizenship in the states that permitted slavery. Moreover, many other states that had not permitted slavery also restricted citizenship for African Americans. Because no slaves were legally imported after 1808, all African Americans born in the United States after that date were secondary immigrants. Those African Americans were denied citizenship based on the principle of jus sanguinis, while most other categories of primary and secondary immigrants were governed by the principle of jus soli.

Fourteenth Amendment

The Union victory in the U.S. Civil War, preceded by President Abraham Lincoln’s 1863 Emancipation Proclamation, changed the status of African Americans forever. On December 6, 1865, the requisite number of states ratified the Thirteenth Amendment ending slavery throughout the United States. However, this change left African Americans in an ambiguous status: They were no longer slaves but were also not yet citizens. The Fourteenth Amendment, which was ratified in 1868, was designed to change that. Its sweeping language also forever changed immigration, naturalization, and citizenship law in the United States.

In an attempt to guarantee first-class citizenship to African Americans wherever they lived in the United States, the Fourteenth Amendment’s first section stated:

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 Fourteenth Amendment not only ended jus sanguinis as a basis for excluding African Americans fromcitizenship, it also clearly established jus soli as the basis for citizenship for all African Americans. This language also had sweeping implications for all immigrants, for it meant that all children born in the United States were automatically citizens of the United States regardless of the circumstances of their birth and ethnicity and citizenship of their parents. The Fourteenth Amendment provided one of the broadest and clearest definitions of citizenship granted by any country in the world, but it continues to have curious results.

An al-Qaeda Member and the Fourteenth Amendment

In 2003, American forces in Afghanistan captured a Saudi Arabian citizen who was a member of the terrorist organization al-Qaeda against whom they were fighting. Initially, the Americans treated the man as they would any other al-Qaeda combatant. However, his status changed radically after they discovered that their captive was also a natural-born American citizen. He had been born in New Orleans, Louisiana, while his Saudi parents were serving as diplomats in the Saudi consulate there. The man himself had no memory of having lived in the United States because his family had returned to Saudi Arabia when he was one year old. Moreover, he had never even returned to the United States, even though he could have entered the country without any legal difficulty because of his American citizenship by right of jus soli.

The language of the Fourteenth Amendment has occasionally prompted individuals to behave in ways that some others find objectionable. For example, children born in the United States are American citizens and cannot be deported, even if they are the children of immigrant parents who may be subject to deportation. Because deporting parents of American citizens is nearly impossible to do, some noncitizens illegally in the United States have made concerted efforts to bear children while in the country to prevent their own deportation. However, while immigrant parents may not be citizens automatically, their children can seek to have them granted citizenship over time. Anti-immigrant advocates occasionally call for a change in U.S. immigration law without realizing that what they are actually asking is that the U.S. Constitution be amended—a process far more difficult than passing or amending an ordinary law in Congress.

The first section of the Fourteenth Amendment also goes far beyond providing a sweeping definition of citizenship by adding,

No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This part of the constitutional amendment protects not only citizens, but also “any person within [a state’s] jurisdiction” from arbitrary government action through either the “due process” clause or the “equal protection” clause. This has had profound implications for protecting the status of all immigrants to the United States, especially as interpreted in the latter half of the twentieth century.

Interpreting the Fourteenth Amendment

The first test of Fourteenth Amendment protections of immigrants came as Congress attempted to restrict immigration of Chinese immigrants to the United States during the late nineteenth century. Initially, the U.S. Supreme Court interpreted the amendment in a way that protected Chinese immigrants. Such decisions provoked an outcry against the Court and may have contributed to a revision in the Court’s interpretation of the Fourteenth Amendment.

In its 1883 decision in the Slaughterhouse Cases, the Supreme Court ruled that the Fourteenth Amendment sought only to make African American citizens equal to white citizens and did not affect the rights of aliens in the United States. Consequently, the Court’s earlier decisions favoring Chinese immigrants were effectively reversed and Chinese immigration to the United States was drastically curtailed by congressional legislation.

In 1896, the Supreme Court rendered a decision in another case, which seems even more curious in view of the Court’s contention in the Slaughterhouse Cases that the Fourteenth Amendment protected only the rights of African Americans. In the 1896 case of Plessy v. Ferguson, a man named Plessy, who was only one-eighth part African American, was denied the opportunity to ride in a segregated first-class car on a Louisiana train. Plessy sued on grounds that segregated public transportation denied him “equal protection of the laws” under the Fourteenth Amendment. However, the Supreme Court ruled that Plessy would be provided equal protection under the laws so long as the state provided him with transportation facilities equal to those of white passengers, even if those facilities were separate. Together, these two Supreme Court rulings seemed to establish the principle that the Fourteenth Amendment protected the rights of only African Americans.

The Slaughterhouse and Plessy rulings stood for decades. Gradually, the Supreme Court reversed itself by adopting a doctrine known as selective incorporation. Under this doctrine, selective provisions of the U.S. Bill of Rights were ruled to be so basic to the nature of “due process” that they were incorporated in the language of the Fourteenth Amendment. From the early 1920’s and continuing through the 1970’s, almost all the most important provisions of the Bill of Rights were selectively incorporated through the Fourteenth Amendment and applied to the states and their subdivisions.

By the early twenty-first century, the first section of the Fourteenth Amendment served as the basis for a broad range of protections extended to both citizens and immigrants in the United States. For example, many states had imposed antimiscegenation laws prohibiting intermarriage between members of different racial groups that had the effect of restricting the right of immigrants to marry whom they chose. These laws persisted until the U.S. Supreme Court used the equal protection clause of the Fourteenth Amendment to void such laws during the 1967 decision in Loving v. Virginia. In other states, anti-immigrant groups have sometimes persuaded their state legislatures and governors to enact statutes denying various benefits to immigrants. The federal courts have often voided these state laws as violations of the Fourteenth Amendment. Still other examples of the impact of the U.S. Constitution on the lives of immigrants can be found.

Richard L. Wilson

Further Reading

  • Abraham, Henry J., and Barbara A. Perry. Freedom and the Court: Civil Rights and Liberties in the United States. 8th ed. Lawrence: University Press of Kansas, 2004. Classic treatment of American constitutional law that considers immigration issues as civil rights issues under the Fourteenth Amendment. 
  • Craig, Barbara Hinkson. Chadha: The Story of an Epic Constitutional Struggle. Berkeley: University of California Press, 1988. This award-winning account of the Supreme Court case Immigration and Naturalization Service v. Chadha is a broad look at immigration law in the context of congressional legislation, executive authority, and bureaucratic practice. 
  • Epstein, Lee, and Thomas G. Walker. Constitutional Law for a Changing America: Rights, Liberties, and Justice. 6th ed.Washington, D.C.:CQPress, 2007. Places immigration in the context of constitutional limitations. 
  • Ivers, Gregg. American Constitutional Law: Power and Politics. Boston: Houghton Mifflin, 2001. Treats immigration issues among other civil rights issues and provides excerpts from U.S. Supreme Court cases to support the arguments that are discussed. 
  • Kommers, Donald P., John E. Finn, and Gary Jacobsohn. American Constitutional Law. Lanham, Md.: Rowman & Littlefield, 2004. Textbook that treats immigration and other constitutional issues from a comparative constitutional perspective, while providing important examples from other countries, most notably Germany. 
  • LeMay, Michael C., and Elliott Robert Barkin, eds. U.S. Immigration and Naturalization Laws and Issues: A Documentary History. Westport, Conn.: Greenwood Press, 1999. Exceptionally useful compilation of more than one hundred primary source documents on immigration issues, including U.S. Supreme Court cases, statues, and commentaries, providing a readily accessible source for student research. 
  • Randall, Richard S. American Constitutional Development: The Powers of Government. New York: Longman, 2002. Contemporary look at the constitutional issues bearing on immigration. 

See also: Censuses, U.S.; Citizenship; Congress, U.S.; History of immigration, 1620-1783; History of immigration, 1783-1891; History of immigration after 1891; Immigration and Naturalization Service, U.S.; Immigration law; Naturalization; Supreme Court, U.S.

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