July 28, 1868 Formation of the 14th Amendment’s Citizenship Clause

On July 28, 1868, you can trace the birth of one of America's most foundational legal protections — the 14th Amendment's Citizenship Clause. It permanently secured birthright citizenship for anyone born or naturalized in the United States. Congress adopted it to overturn *Dred Scott v. Sandford*, dismantle Southern Black Codes, and shield citizenship from future political attacks. It's still at the center of major legal and immigration debates today, and there's much more to uncover.

Key Takeaways

• The 14th Amendment was ratified on July 28, 1868, establishing birthright citizenship and overturning the Supreme Court's *Dred Scott v. Sandford* decision.
• Primary authors John A. Bingham and Jacob M. Howard drafted the Citizenship Clause to protect freed slaves from discriminatory state legislation.
• The clause created dual federal and state citizenship, preventing states from stripping individuals of fundamental rights.
• The phrase "subject to the jurisdiction thereof" excluded children of foreign diplomats and Native Americans under tribal sovereignty from automatic citizenship.
• *United States v. Wong Kim Ark* (1898) later confirmed the clause extended birthright citizenship to children of legal immigrants born on U.S. soil.

What Is the 14th Amendment's Citizenship Clause?

You'll find this clause at the center of ongoing immigration policy discussions, particularly around birthright citizenship for U.S.-born children of undocumented immigrants. It also fuels the federalism debate by defining a dual citizenship — federal and state — that limits states' ability to strip residents of fundamental rights.

The clause remains one of the Constitution's most consequential provisions, shaping both civil rights law and national identity. Similarly, Canada's effort to formalize the recognition of historically significant persons, places, and events led to the Historic Sites and Monuments Board of Canada, officially established on June 27, 1927, reflecting how nations institutionalize collective memory and identity through formal legal mechanisms.

What "Subject to Jurisdiction" Actually Excludes

While the Citizenship Clause casts a wide net, "subject to the jurisdiction thereof" does carve out specific exclusions. You'll find two primary groups outside its reach: children of foreign diplomats and, historically, Native Americans living under tribal sovereignty.

Foreign diplomats maintain allegiance to their home nations, so their U.S.-born children don't automatically receive citizenship. Similarly, the Supreme Court ruled in *Elk v. Wilkins* (1884) that Native Americans on reservations answered to tribal authority, not federal jurisdiction. Congress later corrected this through the Indian Citizenship Act of 1924.

These exclusions directly shape immigration policy debates today, particularly around undocumented immigrants' children. However, *United States v. Wong Kim Ark* (1898) confirmed that children of legal immigrants born on U.S. soil are citizens. The limits of jurisdictional authority were also tested in military conflicts, such as during the Battle of Batoche in 1885, where the Canadian government's decisive victory over Métis forces raised parallel questions about sovereignty and who held legitimate governing power over contested populations.

Why Congress Urgently Needed the Citizenship Clause

After the Civil War, Congress faced a stark reality: without a constitutional amendment, the rights of freed slaves remained dangerously vulnerable to reversal.

Reconstruction politics demanded immediate action, especially as Southern states weaponized Black Codes enforcement to strip freed people of basic rights.

Consider what you're actually looking at:

1. Dred Scott legally classified African Americans as non-citizens, leaving them legally invisible
2. Black Codes forced freed slaves into near-slavery through labor contracts and movement restrictions
3. Southern legislatures actively dismantled Civil Rights Act of 1866 protections
4. Future Congresses could simply repeal statutory protections without constitutional backing

Congress understood that legislation alone couldn't hold.

Only embedding citizenship directly into the Constitution would make these protections permanent and immune to political reversal.

Canada's 1876 Indian Act demonstrated this same vulnerability of statutory law, as Parliament used its unilateral federal authority to legally define Indigenous identity and strip rights through legislation that created a legal category capable of being manipulated, expanded, or restricted by each successive government without constitutional protection for those it governed.

Who Wrote the Citizenship Clause and Why?

Two men shaped the Citizenship Clause more than anyone else: John A. Bingham and Jacob M. Howard. John Bingham, an Ohio congressman, served as Section 1's primary author. His Reconstruction motives were clear — he wanted constitutional language strong enough to override Dred Scott and permanently protect freed slaves from state-level discrimination.

Howard, a Michigan senator, argued that the clause should nationalize the Bill of Rights, extending its protections to every state. Together, they built language precise enough to accomplish two goals: defining citizenship and making that definition untouchable by hostile state legislatures.

You can trace the urgency behind their work directly to Southern Black Codes. Both men understood that without a constitutional foundation, any statutory protection Congress created could simply be dismantled later. This same principle — that foundational legal decisions shape judicial review of administrative bodies for generations — was echoed in Canada's landmark 2008 Dunsmuir v. New Brunswick ruling.

How the Citizenship Clause Overturned Dred Scott

Few Supreme Court decisions caused as much lasting damage as Dred Scott v. Sandford (1857), which stripped African Americans of citizenship entirely. The Citizenship Clause directly overruled that precedent, restoring humanity to millions.

Congressional intent was unmistakable: guarantee racial equality permanently through constitutional law. Here's what that reversal meant for real people:

1. Freedom from statelessness – Freed slaves finally belonged to a nation that recognized them
2. Legal personhood restored – Courts could no longer deny Black Americans standing
3. Overruled Precedent made permanent – No future Congress could legislate away birthright citizenship
4. Children protected forward – Every child born on U.S. soil inherited automatic citizenship

You can't overstate how transformative this single clause became for American identity. Just two years prior, the execution of Thomas Scott by Louis Riel's provisional government in Red River illustrated how political exclusion and the denial of rights could inflame tensions and harden opposition across an entire nation.

How Wong Kim Ark and *Elk V. Wilkins* Defined Birthright Citizenship

Similarly, debates over how to define a people — by territory or by ethnicity — have surfaced in other national contexts, such as when the Canadian House of Commons voted 265–16 to recognize the Québécois as a nation within a united Canada.

Together, these two cases show you exactly how courts carved out the Clause's boundaries — excluding tribal members while firmly protecting children of immigrants born on U.S. soil.