Constitutional Topic: Citizenship
The Constitutional Topics pages at the USConstitution.net site are presented
to delve deeper into topics than can be provided on the Glossary Page or in the FAQ
pages. This Topic Page concerns Citizenship. Citizenship is mentioned in
Article 1, Section 2, Article 1, Section 3, Article 1, Section 8, Article 2, Section 1, and in the 14th Amendment and several subsequent
amendments.
If you’re going to be involved in government in the United States,
citizenship is a must. To be a Senator or Representative, you must be a citizen
of the United States. To be President, not only must you be a citizen, but you
must also be natural-born. Aside from participation in government, citizenship
is an honor bestowed upon people by the citizenry of the United States when a
non-citizen passes the required tests and submits to an oath.
Natural-born citizen
Who is a natural-born citizen? Who, in other words, is a citizen at birth,
such that that person can be a President someday?
The 14th Amendment defines citizenship this
way: “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.” But even this does not get specific enough. As usual, the
Constitution provides the framework for the law, but it is the law that fills
in the gaps. The Constitution authorizes the Congress to do create clarifying
legislation in Section 5 of the 14th Amendment; the Constitution, in Article 1, Section 8, Clause 4, also allows
the Congress to create law regarding naturalization, which includes
citizenship.
Currently, Title 8 of the U.S. Code fills in the gaps left by the
Constitution. Section
1401 defines the following as people who are “citizens of the United States
at birth:”
- Anyone born inside the United States *
- Any Indian or Eskimo born in the United States, provided being a citizen
of the U.S. does not impair the person’s status as a citizen of the
tribe - Any one born outside the United States, both of whose parents are citizens
of the U.S., as long as one parent has lived in the U.S. - Any one born outside the United States, if one parent is a citizen and
lived in the U.S. for at least one year and the other parent is a U.S.
national - Any one born in a U.S. possession, if one parent is a citizen and lived in
the U.S. for at least one year - Any one found in the U.S. under the age of five, whose parentage cannot be
determined, as long as proof of non-citizenship is not provided by age
21 - Any one born outside the United States, if one parent is an alien and as
long as the other parent is a citizen of the U.S. who lived in the U.S. for
at least five years (with military and diplomatic service included in this
time) - A final, historical condition: a person born before 5/24/1934 of an alien
father and a U.S. citizen mother who has lived in the U.S.
* There is an exception in the law — the person must be “subject
to the jurisdiction” of the United States. This would exempt the child of a
diplomat, for example, from this provision.
Anyone falling into these categories is considered natural-born, and is
eligible to run for President or Vice President. These provisions allow the
children of military families to be considered natural-born, for example.
Separate sections handle territories that the United States has acquired over
time, such as Puerto Rico (8
USC 1402), Alaska (8
USC 1404), Hawaii (8
USC 1405), the U.S. Virgin Islands (8
USC 1406), and Guam (8
USC 1407). Each of these sections confer citizenship on persons living in
these territories as of a certain date, and usually confer natural-born status
on persons born in those territories after that date. For example, for Puerto
Rico, all persons born in Puerto Rico between April 11, 1899, and January 12,
1941, are automatically conferred citizenship as of the date the law was signed
by the President (June 27, 1952). Additionally, all persons born in Puerto Rico
on or after January 13, 1941, are natural-born citizens of the United States.
Note that because of when the law was passed, for some, the natural-born status
was retroactive.
The law contains one other section of historical note, concerning the
Panama Canal Zone and the nation of Panama. In 8
USC 1403, the law states that anyone born in the Canal Zone or in Panama
itself, on or after February 26, 1904, to a mother and/or father who is a
United States citizen, was “declared” to be a United States citizen. Note that
the terms “natural-born” or “citizen at birth” are missing from this
section.
In 2008, when Arizona Senator John McCain ran for president on the
Republican ticket, some theorized that because McCain was born in the Canal
Zone, he was not actually qualified to be president. However, it should be
noted that section 1403 was written to apply to a small group of people to whom
section 1401 did not apply. McCain is a natural-born citizen under 8 USC
1401(c): “a person born outside of the United States and its outlying
possessions of parents both of whom are citizens of the United States and one
of whom has had a residence in the United States or one of its outlying
possessions, prior to the birth of such person.” Not everyone
agrees that this section includes McCain — but absent a court ruling
either way, we must presume citizenship.
U.S. Nationals
A “national” is a person who is considered under the legal protection of a
country, while not necessarily a citizen. National status is generally
conferred on persons who lived in places acquired by the U.S. before the date
of acquisition. A person can be a national-at-birth under a similar set of
rules for a natural-born citizen. U.S. nationals must go through the same
processes as an immigrant to become a full citizen. U.S. nationals who become
citizens are not considered natural-born.
Becoming a citizen
A non-citizen may apply to become a citizen of the United States. At no time
will such a person ever be considered natural-born (unless the U.S. Code is
changed in some way). The process to become a citizen involves several steps,
including applying to become and becoming a permanent resident (previously
known as a resident alien), applying to become and becoming naturalized, and
finally taking the Oath of Allegiance to the United States. Children of
naturalized U.S. citizens generally become citizens automatically, though they
will also not be considered natural-born. There is a time constraint before a
permanent resident can apply for naturalization, generally either 3 or 5 years.
The other requirements are that there be a minimum length of time in a specific
state or district, successful completion of a citizenship exam, ability to
read, write, and speak English, and good moral character.
The Oath of Allegiance to the United States
The following is the text of the Oath of Allegiance:
I hereby declare, on oath, that I absolutely and entirely renounce and
abjure all allegiance and fidelity to any foreign prince, potentate, state, or
sovereignty, of whom or which I have heretofore been a subject or citizen;
that I will support and defend the Constitution and the laws of the United
States of America against all enemies, foreign and domestic;
that I will bear true faith and allegiance to the same;
that I will bear arms on behalf of the United States when required by the
law;
that I will perform noncombatant service in the Armed Forces of the United
States when required by the law;
that I will perform work of national importance under civilian direction when
required by the law; and
that I take this obligation freely, without any mental reservation or purpose
of evasion; so help me God.
Losing your citizenship
For a natural-born citizen, losing your citizenship is actually quite
difficult. The law prohibits the taking of your citizenship against your will,
but there are certain actions a citizen can take which are assumed to be a
free-will decision that constitutes a voluntary renunciation of the
citizenship.
Moving to another country for an extended period of time does not constitute
an act that presumes renunciation. Neither does taking a routine-level job with
a foreign government. This stand is quite different from U.S. policy of the
past, where even being naturalized in another nation could be seen as
renunciation. The sections of the law that pertained to losing ones nationality
for many of these cases was found at 8 USC 1482 and related sections.
The U.S. Code does, however, see some acts as creating the possibility of a
loss of nationality. When you lose your U.S. nationality, you are no longer
under the protection or jurisdiction of the United States. When the United
States considers you to no longer be of U.S. nationality, it in effect
considers you to no longer be a citizen. Note that these are things you can do
that may force you to lose your citizenship. The law also says that
these acts must be voluntary and with the intent of losing U.S. citizenship.
The ways to lose citizenship are detailed in 8 USC 1481: