What Does the Constitution Say About Immigration?

Updated on April 11, 2024

At a Glance

  • The Fourteenth Amendment, ratified in 1868, grants citizenship to individuals born or naturalized in the United States.
  • It ensures equal protection under the law for citizens, including former slaves, and reversed part of the Dred Scott v. Sandford decision.
  • The amendment references naturalization and establishes Congress’s responsibility to establish a uniform rule for the naturalization process.
  • Birthright citizenship is guaranteed, except in specific cases, and the amendment does not outline procedures for citizenship revocation.

Immigrants and nonimmigrants are something that the United States has to deal with quite often. So, it would only make sense for the constitution to talk about them, right? In reality, though, the constitution doesn’t give too many details about immigration. What it does talk about is who is authorized to make immigration policy.

So, what does the constitution say about immigration? Read the paragraphs below to find out.

What Is the Fourteenth Amendment?

The 14th Amendment is a part of the U.S. Constitution that was ratified back in 1868. What it did was pretty much to offer citizenship to every person who was naturalized or born in the United States of America. Moreover, it ensured “equal protection of the laws” for citizens. The amendment applied even to former slaves.

The first sentence of the Fourteenth Amendment is none other than the Citizenship Clause. The sentence was adopted on July 9, 1868, and it managed to reverse part of the Dred Scott v. Sandford decision. The clause states:

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the State wherein they reside.”

Considering it managed to change part of the Dred Scott v. Sandford decision, it also changed things for the better for African American citizens. Under the former decision, they were not allowed to become U.S. citizens or obtain any potential protection or privileges. However, the clause changed that and thus improved the lives of African Americans.

The Naturalization Clause

The Citizenship Clause also makes a reference to naturalization, and the Naturalization clause talks about the uniformity of naturalization. So, the reference made is pretty much to process in which immigrants have the opportunity to obtain U.S. citizenship. The Naturalization Clause can be found in Article I, Section 8, Clause 4 of the Constitution.

Section 8 grants Congress the responsibility to “establish a uniform Rule of Naturalization”. It determines the way in which an immigrant can become a citizen of the U.S.

But in spite of this charge, not all states complied with the law. In reality, many of them came up with their own rules, which were aimed at having control over immigration into their borders. This prevented certain people from entering the States.

It all happened during the early years of the Republic. Jennifer Chacon, a University of California Irvine law professor, states that this controlled their own immigration “for the first century of the United States’ existence.”

Not to mention that people who were slaves, had criminal records, were relying on public assistance, or were free black people were sometimes not allowed to enter some states. “Various states passed laws aimed at preventing a variety of populations from entering the borders of their states, including individuals with criminal records, people reliant on public assistance, slaves, and free blacks.” declared Jennifer Chacon.

It’s important to keep in mind that while naturalized citizens have certain rights under the Constitution, they are not allowed everything. To be more specific, while immigrants who become naturalized are allowed to serve in any government office, they are not allowed in the presidency.

In Article II, Section 1, the Constitution mentions that “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.”

Birthright Citizenship

According to the Citizenship Clause or the interpretations made from it, every person that is born in the United States is a U.S. citizen. There are some exceptions, but overall, a child born on U.S. soil will be considered a citizen of the States.

This type of guarantee is mostly existent in the U.S. as in the majority of the Middle East, Asia, or Europe, it does not exist. The guarantee is known as “jus soli” or “right to the territory”.

There have been two Supreme Court cases that considered the “jurisdiction” requirement. The Court in Elk v. Wilkins 112 U.S. said that no Native American Tribe had any allegiance to the U.S, while they had special jurisdiction of the U.S. According to them, just because someone from a tribal nation left the tribe and tried to settle among white people doesn’t make them a born American citizen.

In the syllabus of the decision, it was stated that someone who “has not been naturalized, or taxed, or recognized as a citizen either by the United States or by the state, is not a citizen of the United States within the meaning of the first section of the Fourteenth Article of Amendment of the Constitution.”

Later, in 1870, the Senate Judiciary Committee spoke about the matter. They stated that “the 14th amendment to the Constitution has no effect whatever upon the status of the Indian tribes within the limits of the United States.”

So, children who were born to Native American tribes would not instantly obtain citizenship, even if they left the tribe. Only 8% of the Native population was eligible for citizenship at that time, and only because they served in the military, were taxed or married to white people.

Meanwhile, the Supreme Court in the United States v. Wong Kim Ark spoke about people born in the U.S. to foreigners. So, someone who was born to foreign people (like Chinese people) on U.S. soil, with no involvement in diplomatic or official capacities, with a permanent residence in the States and who are involved in a business in the country, was a citizen. They ruled that the U.S. citizenship of Wong was obtained due to birth and never taken away or lost.

According to Eric Foner, birthright citizenship is nothing more than favoring American exceptionalism, while it doesn’t make the U.S. special at all.

Loss of Citizenship According to the Constitution

What is not mentioned in the Fourteenth Amendment are the procedures that revoke citizenship for the United States. So, the Afroyim v. Rusk Supreme Court managed to talk about when someone would lose their U.S. citizenship. The situations would be:

1. When Someone Is Voluntarily Relinquishing Citizenship

If someone wishes to give up their citizenship, then they can have it revoked. Things that would lead to a voluntary relinquishment would be special renunciation procedures that the State Department is establishing, or through different actions like treason. These will prove someone’s intention to renounce their U.S. citizenship.

2. Naturalization Process Fraud

Taking a better look at it, this is not exactly a citizenship loss. Instead, it is a voiding of the alleged naturalization, as well as a declaration that the immigrant was never a citizen of the United States, to begin with.

The restrictions do not apply for jus sanguinis U.S. citizenship. This would be, for example, the citizenship of a child of U.S. citizen parents that is born abroad.

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The Constitution may not talk about immigration too much, but it does state a few important things that you have to keep in mind. If you’re an immigrant, you may want to remember the information listed in this article. We hope the post was helpful. Don’t hesitate to check out Stilt for more information on immigration, green cards, or other similar things.

Frequently Asked Questions (FAQ)

1. What Does the U.S. Constitution Say About Immigration?

The U.S. Constitution addresses immigration through several key provisions:

  • Naturalization: Article I, Section 8 of the Constitution grants Congress the power to establish a uniform rule of naturalization. This allows Congress to set the criteria and process for becoming a U.S. citizen.
  • Migration and Importation Clause: Article I, Section 9 prohibits Congress from banning the importation of slaves before 1808. This clause had implications for the regulation of immigration during the early years of the United States.
  • Equal Protection: The 14th Amendment, ratified in 1868, guarantees equal protection under the law to all persons, including immigrants and non-citizens. This amendment has been important in protecting the rights of immigrants.
  • Due Process: The 5th and 14th Amendments provide due process rights to all persons, regardless of their immigration status. This ensures that immigrants are entitled to certain legal protections.

2. Can Non-Citizens Have Constitutional Rights?

Yes, non-citizens in the United States, including undocumented immigrants, legal permanent residents, and visa holders, have constitutional rights. These rights include due process, equal protection, freedom of speech, and protection from unreasonable searches and seizures. However, some rights may be limited for non-citizens in certain situations.

3. Who Has the Authority to Regulate Immigration?

The authority to regulate immigration primarily rests with the federal government, specifically with Congress. Congress has the power to establish immigration laws, set criteria for naturalization, and regulate the entry and status of non-citizens.

4. Are There Any Constitutional Limitations on Immigration Laws?

While Congress has broad authority to regulate immigration, immigration laws must still comply with the constitutional rights and protections afforded to all individuals within the United States. Courts have the authority to review and strike down immigration laws that violate constitutional rights.

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Frank Gogol

I’m a firm believer that information is the key to financial freedom. On the Stilt Blog, I write about the complex topics — like finance, immigration, and technology — to help immigrants make the most of their lives in the U.S. Our content and brand have been featured in Forbes, TechCrunch, VentureBeat, and more.

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