United States District Court, D. Utah
MEMORANDUM DECISION AND ORDER GRANTING
PLAINTIFFS' MOTION FOR SUMMARY JUDGMENT; DENYING
DEFENDANTS' MOTION TO DISMISS; AND DENYING
INTERVENORS' MOTION TO DISMISS
Waddoups United States District Judge
the court are three motions-Plaintiffs' Motion for
Summary Judgment, (ECF No. 30), Defendant United States of
America's (the Government) Motion to Dismiss, (ECF No.
66), and Intervenors American Samoa Government and the
Honorable Aumua Amata's (the Intervenors) Motion to
Dismiss, (ECF No. 89). As explained below, the court GRANTS
Plaintiff's Motion for Summary Judgment and DENIES the
Government's and the Intervenors' Motions.
are three individuals born in American Samoa and a nonprofit
corporation based in St. George, Utah. The three individual
plaintiffs are John Fitisemanu, Pale Tuli, and Rosavita Tuli.
The nonprofit corporation is the Southern Utah Pacific Island
those born in the United States' other current
territorial possessions, who are statutorily deemed American
citizens at birth, 8 U.S.C. § 1408(1) designates the
individual plaintiffs as non-citizen nationals. Plaintiffs
argue that their designation as nationals, and not citizens,
violates the Fourteenth Amendment. Their position is that
because American Samoa is “in the United States,
” and “subject to the jurisdiction thereof,
” they are entitled to birthright citizenship under
Section 1 of the Fourteenth Amendment.
explained below, resolution of this case requires the court
to choose between two Supreme Court cases and their
respective lines of precedent-Wong Kim Ark and
Downes v. Bidwell.
first Supreme Court case is United States v. Wong Kim
Ark, 169 U.S. 649 (1898). In Wong Kim Ark, the
Supreme Court held that a man of Chinese descent, who was
born in the state of California to parents who were never
employed in any diplomatic capacity by the Chinese
government, and who had never renounced his allegiance to the
United States, became a citizen at the time of his birth in
the United States-by virtue of the Citizenship Clause of the
Fourteenth Amendment. In reaching this conclusion, the
Supreme Court discussed at length the importance of the
English common law rule of citizenship by birth in
determining the meaning of the Citizenship Clause. The Court
traced the United States' reliance on the common law rule
from its origins in Calvin's Case.
Case, decided in 1608, established a two part rule for
acquisition of subject status at birth-(1) birth within the
King's dominion and (2) allegiance to the King. The
Supreme Court in Wong Kim Ark ultimately concluded
that “[t]he fourteenth amendment affirms [this] ancient
and fundamental rule of citizenship . . . .” Wong
Kim Ark, 169 U.S. at 693. Plaintiffs argue that Wong
Kim Ark requires this court to hold that because
American Samoa is within the territory of the United States,
it is “in the United States” under Section 1 of
the Fourteenth Amendment.
second Supreme Court case, and its line of precedent, which
may also provide this court with an answer to the question
presented, is Downes v. Bidwell, 182 U.S. 244
(1901). The line of cases following Downes are known
as the Insular Cases.
did not concern the Fourteenth Amendment. The question in
Downes was whether-for purposes of the Tax
Uniformity Clause of Article I, Section 8 of the
Constitution- Puerto Rico is part of the United States. A
splintered majority of the Court ultimately held that Puerto
Rico is not part of the United States within the meaning of
that provision of the Constitution.
from its holding, Downes is relevant here because it
represents the origin of the doctrine of “territorial
incorporation, ” “under which the Constitution
applies in full in incorporated Territories surely destined
for statehood but only in part in unincorporated
Territories.” See Boumediene v. Bush, 553 U.S.
723, 757 (2008) (citation omitted). The Government argues
that “the Citizenship Clause confers citizenship on
those born ‘in the United States, '” and
argues that the Supreme Court's “decision in
Downes confirms that the language ‘in the
United States' excludes unincorporated
territories”-like American Samoa. (See ECF No.
66 at 22.)
explained below, this court holds that Downes, and
the Insular Cases more generally, do not control the
outcome of this case. Wong Kim Ark is binding on
this court, however.
Supreme Court in Wong Kim Ark held that the
Fourteenth Amendment follows the “established”
and “ancient rule of citizenship”-birth within
the dominion and allegiance of the sovereign. Because the
Supreme Court adopted this rule, and because it has never
abrogated it, vertical stare decisis requires this court to
apply the rule in this case. As explained below, application
of this rule requires the court to hold that American Samoa
is “in the United States” for purposes of the
Background and Relief Sought
filed their Motion for Summary Judgment on March 30, 2018.
(ECF No. 30.) They seek summary judgment on all five claims
for relief asserted in their Complaint. (ECF No. 30 at 17.)
they seek “[a] declaratory judgment that persons born
in American Samoa are citizens of the United States by virtue
of the Citizenship Clause of the Fourteenth Amendment, and
that 8 U.S.C. § 1408(1) is unconstitutional both on its
face and as applied to Plaintiffs.” (ECF No. 30 at 17.)
they seek “[a]n order enjoining Defendants from
enforcing 8 U.S.C. § 1408(1), including enjoining
Defendants from imprinting Endorsement Code 09 in
Plaintiffs' passports and requiring that Defendants issue
new passports to Plaintiffs that do not disclaim their U.S.
citizenship.” (ECF No. 30 at 17-18.)
they seek a “declaratory judgment that the State
Department's policy that ‘the citizenship
provisions of the Constitution do not apply to persons born
[in American Samoa],' as reflected in 7 F.A.M. §
1125.1(b) and (d) violates the Fourteenth Amendment . . .
.” (ECF No. 30 at 18.)
they seek “[a]n order enjoining Defendants from
enforcing 7 F.A.M. § 1125.1(b) and (d).” (ECF No.
30 at 18.)
they seek “[a]n order declaring that Defendants'
practice and policy of enforcing 8 U.S.C. § 1408(1) and
7 F.A.M. § 1125.1(b) and (d) through imprinting
Endorsement Code 09 in the passports of persons born in
American Samoa is contrary to constitutional right and is not
in accordance with law . . . .” (ECF No. 30 at 18.)
8, 2018, the Government filed its Motion to Dismiss, arguing
that “this action should be dismissed in its entirety
for failure to state a claim upon which relief can be
granted.” (ECF No. 66.)
same day, Intervenors filed their Motion to Intervene. (ECF
No. 61.) On September 6, 2018, the court held oral argument
on the Motion to Intervene. (ECF No. 86). On September 13,
2018, the court entered an order denying intervention of
right, but granting permissive intervention. (ECF No. 92.)
their Motion to Dismiss, Intervenors concurred with the
Government's Motion to Dismiss. (ECF No. 89 at 2 n. 1.)
They also argued that the court should dismiss the
Plaintiff's complaint for two additional reasons. (ECF
No. 89 at 7.) First, they argued that it would be impractical
and anomalous for the court to impose citizenship “upon
American Samoa against its will.” (ECF No. 89 at 7.)
They also argued that “whether birthright citizenship
should extend to the people of American Samoa is a question
for the people of America Samoa and its elected
representatives, and not for this Court to decide.”
(ECF No. 89 at 7.)
court heard argument on the parties' motions on November
14, 2018. (ECF No. 100.)
United States exercises exclusive sovereignty over the U.S.
territory of American Samoa.
U.S. Department of State is an executive department of the
State Department, through its Bureau of Consular Affairs, is
responsible for the issuance of United States passports.
Pompeo is the current Secretary of State.
Secretary of State or his designee is directly responsible
for the execution and administration of the statutes and
regulations governing the issuance of U.S. passports.
C. Risch is the Assistant Secretary of State for Consular
Assistant Secretary Risch is responsible for the State
Department's Bureau of Consular Affairs and the creation
of policies and procedures relating to the issuance of
passports. In that capacity, he is Secretary Pompeo's
designee as to the execution and administration of the
statutes and regulations governing the issuance of U.S.
is the State Department's policy that the Fourteenth
Amendment's Citizenship Clause does not apply to persons
born in American Samoa. Most individuals born in American
Samoa are designated as non-citizen nationals.
Generally, U.S. non-citizen nationals are entitled to U.S.
Nationals of the United States who are not citizens are
entitled only to U.S. passports with appropriate
Passports issued by the State Department to those born in
American Samoa of non-citizen parents contain Endorsement
endorsement states “THE BEARER IS A UNITED STATES
NATIONAL AND NOT A UNITED STATES CITIZEN.”
U.S. passport is the only federal document for which a member
of the general public may apply in order to obtain official
federal recognition of U.S. citizenship by virtue of birth in
the United States.
Plaintiff John Fitisemanu was born in American Samoa in 1965.
The Government does not recognize Mr. Fitisemanu as a citizen
of the United States. The Government has issued a U.S.
passport to Mr. Fitisemanu that is imprinted with Endorsement
Plaintiff Pale Tuli was born in American Samoa in 1993. The
Government does not recognize Mr. Tuli as a citizen of the
Plaintiff Rosavita Tuli was born in American Samoa in 1985.
The Government does not recognize Ms. Tuli as a citizen of
the United States. The Government has issued a U.S. passport
to Ms. Tuli that is imprinted with Endorsement Code 09.
individual plaintiffs are members of Plaintiff Southern Utah
Pacific Island Coalition.
Plaintiffs owe permanent allegiance to the United States.
Plaintiffs are residents of Utah.
Plaintiffs, as non-citizen nationals, are currently denied
the right to vote, the right to run for elective federal of
state office, and the right to serve on federal and state
judgment is proper when the moving party demonstrates that
there is no genuine issue of material fact and that it is
entitled to judgment as a matter of law. Fed.R.Civ.P. 56(a).
The court must “view the evidence and draw reasonable
inferences therefrom in a light most favorable to the
nonmoving party.” Commercial Union Ins. Co. v. Sea
Harvest Seafood Co., 251 F.3d 1294, 1298 (10th Cir.
addressing the arguments presented in this case, it is
necessary to examine the historical evidence about the
common-law underpinnings of the Citizenship Clause of the
Fourteenth Amendment. The fundamental principle of the common
law with regard to English nationality was birth within the
allegiance. United States v. Wong Kim Ark, 169 U.S.
649, 655 (1898). This fundamental principle was clearly
stated in the leading case known as Calvin's
Case, decided in 1608. Id. at 655-56.
the end of the Tudor dynasty following the death of Elizabeth
in 1603, James VI of Scotland inherited the throne of England
as James I, thereby uniting the two kingdoms . . . .”
Polly J. Price, Natural Law and Birthright Citizenship in
Calvin's Case (1608), 9 Yale J.L. & Human. 73,
80 (1997). “The most pressing question of political
debate soon became the legal status of James's Scottish
subjects in England. According to English law, were Scots
aliens or were they subjects, capable of possessing and
asserting at least some of the rights of English subjects,
including holding land and suing in English courts?”
Id. at 81.
question was answered “[i]n June 1608” when
“fourteen justices, ” id. at 82,
“four lawyers, ” “and the lord chancellor
participated in Calvin's Case.” James H.
Kettner, The Development of American Citizenship,
1608-1870, at 17 (1978). “Formally, the litigation
involved a dispute over land titles.” Id. at
16. “Two suits were introduced in the name of Robert
Calvin, an infant born in Scotland in 1606 after the
accession [of King James], (a postnatus).”
Id. Persons born in Scotland after the accession of
King James were referred to as the “postnati.”
See Price, 9 Yale J.L. & Human. at 82. The
question presented was whether Calvin-as a postnatus
born in Scotland-was a subject of England or an alien.
“All but two of the justices determined that” the
postnati “were to be regarded not as aliens in England
but as natural-born subjects, qualified to inherit English
fourteen justices participated in the case, the
“opinion of Lord Coke, chief justice of Common Pleas,
emerged as the definitive statement of the law.”
Kettner at 17. “Coke's attention focused on the
status of the natural-born subject-the individual who was
born into the community of Englishmen.” Id.
“Broadly defined, this allegiance was the ‘true
and faithful obedience of the subject due to his sovereign.
This ligeance and obedience is an incident inseparable to
every subject: for as soon as he is born, he oweth by
birth-right ligeance and obedience to his
sovereign.'” Id. at 17-18 (quoting
Calvin's Case, 4b.) Ultimately,
“Calvin's Case established a
territorial rule for acquisition of subject status at
Every one born within the dominions of the King of England,
whether here or in his colonies or dependencies, being under
the protection of-therefore, according to our common law,
owes allegiance to-the King and is subject to all the duties
and entitled to enjoy all the rights and liberties of an
9 Yale J.L. & Human. at 83 (quoting Herbert Broom,
Constitutional Law Viewed in Relation to Common
Law 31 (London, W. Maxwell & Son, 2d ed. 1885)).
Case “would exert a strong influence over the
development of attitudes and doctrines concerning the
constitutional character of the new imperial community in the
eighteenth century.” Kettner at 28. “Americans in
particular would seize upon elements of Calvin's
Case to explain and legitimize their special
relationship with [England].” Id.
Calvin's Case's “maxims and
definitions would survive as guiding imperatives, serving as
the source and inspiration for the ideas of future
who left their native country to settle on the far shores of
the Atlantic remained subjects of the king.” Kettner at
65. “The same common law principles that made subjects
of the Scottish postnati applied equally well to
persons in America.” Id. “English
emigrants lost neither their allegiance nor their status when
they left their mother country, and all children born under
the king's protection were nautral-born subjects in all
the dominions.” Id; see also Inglis v.
Trustees of Sailor's Snug Harbor, 28 U.S. 99,
120-21, 7 L.Ed. 617 (1830) (“It is universally
admitted, both in the English courts and in those of our own
country, that all persons born within the colonies of North
America, whilst subject to the crown of Great Britain, were
natural born British subjects, and it must necessarily
follow, that that character was changed by the separation of
the colonies from the parent state, and the acknowledgement
of their independence.”). Indeed, that “same rule
was in force in all the English colonies upon this continent
down to the time of the Declaration of Independence, and in
the United States afterwards, and continued to prevail under
the constitution as originally established.” Wong
Kim Ark, 169 U.S. at 658.
Declaration of Independence
repudiated the authority of Great Britain not as individuals,
but as organized societies.” Kettner at 175.
“They withdrew their allegiance from George III and
severed the connection with England in formal, public, and
communal acts passed by representative bodies purporting to
speak for a united people.” Id.
4, 1776, the Continental Congress voted to adopt the
Declaration of Independence. The Declaration stated, in part,
that “the Representatives of the United States of
America . . . in the Name, and by the Authority of the good
People of these Colonies, ” declared those colonies
“Absolved from all Allegiance to the British Crown . .
. .” The Declaration of Independence para. 32 (U.S.
1776). It also famously provided that “all men are
created equal, that they are endowed by their Creator with
certain unalienable Rights, that among these are Life,
Liberty, and the pursuit of Happiness.” Id.
the American Revolution, a “perplexing”
“question” remained. See Kettner at 209.
Did the Revolution create “one community of allegiance
or many?” Id. During the Revolution
“[i]t was enough to decide that one was a subject or a
citizen.” Id. “To consider whether
[‘citizen'] meant membership in a state or in a
nation of states seemed unnecessary” at the time.
See id. “The question would become a critical
one in the years after the Revolution.” Id.
“It would appear in many different contexts and in many
different guises, ” including “the status of
inhabitants of the American territories, in conflicts between
nationalists and advocates of states' rights, and
ultimately in the soul-searing crisis of slavery.”
first constitution, the Articles of Confederation, was
ratified in 1781. At that time, the nation was a loose
confederation of states, each operating like independent
countries. On September 3, 1783, Great Britain formally
recognized the independence of the United States in the
Treaty of Paris. Soon after America won its independence, it
became increasingly evident that the young republic needed a
stronger central government to remain stable. In 1786,
Alexander Hamilton called for a constitutional convention to
discuss the matter. The Confederation Congress, which in
February 1787 endorsed the idea, invited all 13 states to
send delegates to a meeting in Philadelphia. The
Constitutional Convention took place from May 25 to September
framers of the Constitution failed to grapple with the
relationship of state and national citizenship, but they did
concern themselves with problems involving citizenship status
that had become apparent since independence.” Kettner
at 224. The framers had “debates over the citizenship
qualifications for office . . . .” See id. at
224-30. “The delegates assumed that citizenship was a
prerequisite for high political office and closely contested
the length of time that one had to be a citizen, but at no
time did they discuss the relationship between state and
national citizenship.” Id. at 230.
United States Constitution (1789)
United States Constitution was signed on September 17, 1787,
by delegates to the Constitutional Convention. On June 21,
1788, New Hampshire became the ninth and last necessary state
to ratify the Constitution. It came into effect on March 4,
1789, by agreement of the Confederation Congress.
term “citizen” is used in the Constitution. For
example, Article IV of the Constitution provided that
“[t]he Citizens of each State stall be entitled to all
Privileges and Immunities of Citizens in the several
States.” U.S. Const. art. IV, § 2, cl. 1. Article
III gave the federal judiciary jurisdiction in disputes
“between a State and Citizens of another State;-between
Citizens of different States; -between Citizens of the same
State claiming Lands under Grants of different States, and
between a State, or the Citizens thereof, and foreign States,
Citizens or Subjects.” U.S. Const. art. III, § 2,
cl. 1. Article I of the Constitution imposed a citizenship
requirement for House of Representative Members. U.S. Const.
art. I, § 2, cl. 2 (“No Person shall be a
Representative who shall not have attained to the Age of
twenty five Years, and been seven Years a Citizen of the
United States . . . .”). And it imposed a citizenship
requirement for all senators. U.S. Const. art. I, § 3,
cl. 3 (“No Person shall be a Senator who shall not have
attained to the Age of thirty Years, and been nine Years a
Citizen of the United States . . . .”). Article II of
the Constitution imposed a citizenship requirement for the
presidency. U.S. Const. art. II, § 1, cl. 4 (“No
Person except a natural born Citizen, or a Citizen of the
United States, at the time of the Adoption of this
Constitution, shall be eligible to the Office of President .
. . .”).
Constitution did not define “citizen.”
See William Rawle, A View of the Constitution of
the United States of America 85 (2d ed. 1829) (“It
cannot escape notice, that no definition of the nature and
rights of citizens appears in the Constitution.”).
Indeed, “the Constitution in its final form left
critical questions relating to citizenship unanswered.”
Kettner at 231. “There was an implicit assumption that
birth within the United States conferred citizenship-the
president was to be a ‘natural born citizen'
resident in the United States-but did this encompass all
persons born within the states and territories of the new
nation, or could the states or federal governments
distinguish among natives, accepting some as birthright
citizens while rejecting others?” Id.
Questions regarding “the exact relations among the
states and between the states and the nation as a whole would
remain problematical until the ultimate question of the
nature of individual citizenship was confronted
directly.” Id. at 232. “The framers
dealt with the question tangentially, and, in consequence,
the constitutional provisions involving citizenship contained
profound ambiguities that would become apparent only long
after the new government went into operation.”
rulings on the meaning of the privileges and immunities and
of the diversity jurisdiction clauses helped clarify the
peculiarly dualistic character of American
citizenship.” Kettner at 264. “However, they by
no means fully determined the political questions that might
arise from the definition of that status.” Id.
“Considerable ambiguity thus remained at the heart of
[the] notion of dual citizenship.” Id.
“Perhaps the most crucial unresolved question was
whether the individual citizen owed his primary loyalty to
his state or to the United States as a whole, and this
determination involved the issue of whether the state
citizenship flowed from national citizenship or vice
versa.” Id. at 264-65.
Supreme Court issued its notorious Dred Scott
decision on March 6, 1857. “The opinion of the Court by
Chief Justice Taney took the occasion to rule that free
blacks could never become citizens of the United States, that
Congress lacked the power to limit slavery in the
territories, and that federal legislation limiting slavery
anywhere would violate the Due Process Clause.” Daniel
A. Farber, A Fatal Loss of Balance: Dred Scott
Revisited, 39 Pepp. L. Rev. 13, 14 (2011); see
also Kettner at 326 (“Taney's majority opinion
denied that Scott or any other black man could be a citizen
of the United States within the meaning of the
key issue in Dred Scott-or at least an issue that Taney chose
to confront-is the relationship between state and federal
citizenship.” Farber, 39 Pepp. L. Rev. at 22.
“The predominant Southern theory-although not the
theory that Southerners found convenient in the context of
Dred Scott-was that citizenship stemmed from the
states.” Id. at 23. This result would have
been “unpalatable” for Southerners because
“the status of blacks as citizens in Northern
states” meant that they “would have been entitled
to recognition [as citizens] in Southern states.”
Id. at 24. Justice Taney sought to avoid this
to Taney, “‘every person and every class and
description of persons who were at the time of the
Constitution recognized as citizens in the several
states,' became national citizens with the creation of
the Union; but those locally admitted after 1789 enjoyed no
national status.” Kettner at 326 (quoting Dred
Scott v. Sandford, 60 U.S. 393, 406, 15 L.Ed. 691
(1857)). In other words, according to Taney, those who were
citizens of a state prior to the constitution coming into
effect in 1789 became national citizens after that date. But
for Taney, free blacks were not state citizens before the
ratification of the Constitution, so, according to him, they
were not entitled to any national status as citizens
thereafter. See Kettner at 326-27; see
also Dred Scott, 60 U.S. at 423 (“these rights are
of a character and would lead to consequences which make it
absolutely certain that the African race were not included
under the name of citizens of a State, and were not in the
contemplation of the framers of the Constitution when these
privileges and immunities were provided for the protection of
the citizen in other States.”). According to Taney,
“[a]s purely local citizens, blacks might have rights
at the discretion of the individual state; but once they
removed beyond that state's jurisdiction their condition
depended absolutely on their new place of residence.”
Kettner at 327.
short, Dred Scott “held that there was a
racial exception to the normal rule of birthright U.S.
citizenship, ” Farber, 39 Pepp. L. Rev. at 24, an
exception that was entirely inconsistent with the rule
reported by Coke in Calvin's Case.
American Civil War was fought from 1861-1865. “The
outbreak of war removed obstacles that had long prevented
Americans from achieving a consistent concept of
citizenship.” Kettner at 334. In many ways, “the
Civil War was a struggle over the nature of the community
created in 1789-a bloody contest over allegiance.”
Id. at 340. “The lines were . . . drawn
between those who stressed the primacy of the state
communities of allegiance and those who insisted that the
Union had created one nation and one people.”
Id. “Years of evasion and compromise in
Congress and the courts had delayed the confrontation between
these two points of view.” Id. “But now
the time of decision was at hand, and open conflict would
determine which side would prevail.” Id.
the moment of triumph, ” “the North sought to
impose its own ideas of citizenship and community upon the
nation.” Id. As discussed below, a
“succession of laws and constitutional amendments was
passed over the objections of the recalcitrant President
Johnson and forced upon the southern states as a condition of
their readmission to the privileges forfeited by their
disloyalty.” Id. at 340-41.
Civil Rights Act, the Thirteenth Amendment, and the
December 18, 1865, the Secretary of State certified that the
Thirteenth Amendment had been ratified and become part of the
Constitution.” Jett v. Dallas Indep. Sch.
Dist., 491 U.S. 701, 713-14, (1989) (plurality opinion).
The Thirteenth Amendment abolished slavery and involuntary
servitude. Section 1 of the Thirteenth Amendment provided:
“Neither slavery nor involuntary servitude, except as a
punishment for crime whereof the party shall have been duly
convicted, shall exist within the United States, or any place
subject to their jurisdiction.” U.S. Const. amend.
XIII, § 1.
than three weeks” after the Thirteenth Amendment was
ratified, “Senator Lyman Trumbull, ” of Illinois,
“Chairman of the Senate Judiciary Committee, introduced
S. 61, which was to become the Civil Rights Act of
1866.” Jett, 491 U.S. at 713-14 (citing Cong.
Globe, 39th Cong., 1st Sess., 129 (1866)). “In March
1866 Congress passed and sent to . . . [P]resident [Johnson]
the Civil Rights Act, based explicitly upon the principle
that citizenship derived from birth within the allegiance and
entitled persons enjoying the status to basic rights
throughout the nation.” Kettner at 341. “Johnson
vetoed the act.” Id. at 342. “He . . .
pointed out that the proposed rights to be guaranteed by the
national government had traditionally fallen within the
jurisdiction of the states-a claim that many supporters of
the bill would have denied . . . .” Id.
“But Congress was in no mood for arguments tinged with
the stain of antebellum states' rights doctrine.”
Id. “The Senate and the House overrode the
president's veto, and on April 9, 1866, the Civil Rights
Act became law.” Id.
1866 Act represented Congress' first attempt to ensure
equal rights for the freedmen following the formal abolition
of slavery effected by the Thirteenth Amendment.”
Gen. Bldg. Contractors Ass'n, Inc. v.
Pennsylvania, 458 U.S. 375, 389 (1982). “As such,
it constituted an initial blueprint of the Fourteenth
Amendment . . . .” Id. The Act
“declared, ” in part, that “all persons
born in the United States and not subject to any foreign
power . . . are hereby declared to be citizens of the United
States; and such citizens, of every race and color, ”
“shall have the same right, in every State and
Territory in the United States, . . . to full and equal
benefit of all laws and proceedings for the security of
person and property, as is enjoyed by white citizens . . .
.” Ch. 31, § 1, (1866).
“[w]hat one Congress enacted another could repeal, and
the surest guarantee that the view of citizenship embodied in
the Civil Rights Act would survive lay not in statutes but in
constitutional amendment.” Kettner at 342. So,
“on April 30, [1866, ] the draft of the Fourteenth
Amendment was introduced in the House and Senate.”
Id. “[O]ne of the primary purposes of many
members of Congress in supporting the adoption of the
Fourteenth Amendment was to incorporate the guaranties of the
Civil Rights Act of 1866 in the organic law of the
land.” Hurd v. Hodge, 334 U.S. 24, 32
Senate held debates regarding the Fourteenth Amendment in
May, 1866. See United States v. Wong Kim
Ark, 169 U.S. 649, 698 (1898) (“When it came
before the senate in May, 1866 . . . .). “The
fourteenth amendment of the constitution, as originally
framed by the house of representatives, lacked the opening
sentence.” Wong Kim Ark, 169 U.S. at 698.
Senator “Howard, of Michigan, moved to amend by
prefixing the sentence in its present form (less the words
‘or naturalized'), and reading: ‘All persons
born in the United States, and subject to the jurisdiction
thereof, are citizens of the United States and of the state
wherein they reside.'” Wong Kim
Ark, 169 U.S. at 698. After introducing the proposed
language, Senator Howard continued:
I do not propose to say anything on that subject except that
the question of citizenship has been so fully discussed in
this body as not to need any further elucidation, in my
opinion. This amendment which I have offered is simply
declaratory of what I regard as the law of the land already,
that every person born within the limits of the United
States, and subject to their jurisdiction, is by virtue of
natural law and national law a citizen of the United States.
Globe, 1st Sess. 39th Cong. 2890.
Doolittle, of Wisconsin, then moved “to amend
[Howard's] amendment, ” “by inserting after
the word ‘thereof' the words ‘excluding
Indians not taxed.'” Cong. Globe, 1st Sess. 39th
Cong. 2890. A debate thereafter ensued regarding whether to
add the words “excluding Indians not taxed” to
Section 1 of the Fourteenth Amendment.
Trumbull, of Illinois, was the “chairman of the
Committee on the Judiciary . . . who . . . investigated the
civil rights bill.” Cong. Globe, 1st Sess. 39th Cong.
2893 (Sen. Fessenden). Senator Trumbull opposed Senator
Doolittle's proposed amendment, believing that Native
Americans were not subject to the complete jurisdiction of
the United States because they did not owe allegiance to the
United States. See Cong. Globe, 1st Sess. 39th Cong.
2893 (Sen. Trumbull) (“What do we mean by
‘subject to the jurisdiction of the United States?'
Not owing allegiance to anybody else. That is what it
means.”); see also Cong. Globe, 1st Sess. 39th
Cong. 2894 (Sen. Trumbull) (“I have already replied to
the suggestion as to the Indians being subject to our
jurisdiction. They are not subject to our jurisdiction in the
sense of owing allegiance solely to the United States . . .
Johnson, of Maryland, then joined in the debate. See
Cong. Globe, 1st Sess. 39th Cong. 2893. He was in favor of
adding the language “excluding Indians not taxed”
to Section 1 of the Fourteenth Amendment. See Cong.
Globe, 1st Sess. 39th Cong. 2893 (Sen. Jonson) (“The
amendment proposed by my friend from Wisconsin . . . should
be adopted.”). Before addressing that proposed
amendment, however, he stated the following:
[T]here is no definition in the Constitution as it now stands
as to citizenship. Who is a citizen of the United States is
an open question. The decision of the courts and the doctrine
of the commentators is, that every man who is a citizen of a
State becomes ipso facto a citizen of the United
States; but there is no definition as to how citizenship can
exist in the United States except through the medium of a
citizenship in a State.
Now, all that this amendment provides is, that all persons
born in the United States and not subject to some foreign
Power-for that, no doubt, is the meaning of the committee who
have brought this matter before us-shall be considered as
citizens of the United States. That would seem to be not only
a wise but a necessary provision. If there are to be citizens
of the United States there should be some definition of what
citizenship is, what has created the character of citizen as
between himself and the United States, and the amendment says
that citizenship may depend upon birth, and I know of no
better way to give rise to citizenship than the fact of birth
within the territory of the United States, born of
parents who at the time were subject to the authority of the
United States. I am, however, by no means prepared to say, as
I think I have intimated before, that being born within the
United States, independent of any new constitutional
provision on the subject, creates the relation of citizen to
the United States.
Globe, 1st Sess. 39th Cong. 2893 (Sen. Jonson) (emphasis
Johnson then expressed disagreement with Senator Trumbull
regarding whether Native Americans are subject to the
jurisdiction of the United States. Cong. Globe, 1st Sess.
39th Cong. 2893 (Sen. Johnson) (“and he supposes and
states very positively that the Indians are not subject to
the jurisdiction of the United States. With due deference to
my friend from Illinois, I think he is in error.”).
Senator Johnson then pointed out that Senator Trumbull did
not oppose the “excluding Indians not taxed”
language in Section II of the (proposed) Fourteenth
Amendment. Cong. Globe, 1st Sess. 39th Cong. 2894 (Sen.
Johnson) (“I suppose that my friend from Illinois
agreed to the second section of this constitutional
amendment, and these terms are used in that section.”).
The following exchange between Senator Trumbull and Senator
Johnson then occurred:
Mr. TRUMBULL: The Senator from Maryland certainly perceives a
distinction between the use of the words “excluding
Indians not taxed” in the second section and in the
first. The second section is confined to the States; it does
not embrace the Indians of the plains at all. That is a
provision in regard to the apportionment of representation
among the several States.
Mr. JOHNSON: The honorable member did not understand me. I
did not say it meant the same thing.
Mr. TRUMBULL: I understood the Senator, I think. I know he
did not say that the clause in the second section was
extended all over the country, but he did say that the words
“excluding Indians not taxed” were in the second
section, and in as much as I had said that those words were
of uncertain meaning, therefore, having gone for the words in
the second section I was guilty of a great inconsistency.
Now, I merely wish to show the Senator from Maryland that the
words in the second section may have a very clear and
definite meaning, when in the first section they would have a
very uncertain meaning, because they are applied under very
different circumstances. The second section refers to no
persons except those in the States of the Union; but the
first section refers to persons everywhere, whether in the
States or in the territories or in the
District of Columbia.
Globe, 1st Sess. 39th Cong. 2894 (emphases added).
March 1867 twelve states had refused to ratify the amendment,
but Congress made clear its determination to write the
principle of national citizenship into the fundamental
law.” Kettner at 343. “In the Reconstruction Act
of March 2, 1867, Congress formally provided that no state
could be restored until it had ratified and until the
amendment had become part of the Constitution.”
Id. at 343. “Legislatures in the South now had
no choice.” Id. at 343. The Fourteenth
Amendment was adopted on July 9, 1868. Section 1 provides:
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. 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.
Const. amend. XIV § 1. Section 2 provides:
Representatives shall be apportioned among the several States
according to their respective numbers, counting the whole
number of persons in each State, excluding Indians not taxed.
But when the right to vote at any election for the choice of
electors for President and Vice President of the United
States, Representatives in Congress, the Executive and
Judicial officers of a State, or the members of the
Legislature thereof, is denied to any of the male inhabitants
of such State, being twenty-one years of age, and citizens of
the United States, or in any way abridged, except for
participation in rebellion, or other crime, the basis of
representation therein ...