This section is from the book "The Constitutional Law Of The United States", by Westel Woodbury Willoughby. Also available from Amazon: Constitutional Law.
Each country determines, by its own municipal law, the persons to be admitted to its citizenship.
Since the adoption of the Constitution it has been recognized that citizenship of the United States may be obtained in two ways - by birth within the country, and by naturalization. As has been already learned, up to the time of the Dred Scott decision there was doubt whether birth within the United States or naturalization by the General Government was sufficient to endow one with either federal or state citizenship. By that decision this doubt was resolved in the negative, it being held that no one by mere birth became a citizen of the United States-, and that one could become a federal citizen only by becoming first a citizen of a State, though it was also held, it will be remembered, that a State could not, by making an African negro one of its own citizens, thereby endow him with the general constitutional privileges of federal citizenship. By the Fourteenth Amendment, however, it was-declared that national citizenship is no longer dependent upon state citizenship, and that mere birth within the United States, even though of alien parents, or naturalization by federal law, is sufficient to create national citizenship; and that residence in a State is sufficient to render such a one a citizen of that State.
We thus see that the power given to Congress by Article I, Section VIII, Clause 4, of the Constitution "to establish an uniform rule of naturalization" is- not to be construed, as was once alleged, as simply a power to remove the disabilities of foreign birth, leaving it to the States to determine whether or not, when such disabilities are removed, the individual shall become a citizen of the State where he resides, and thereby a citizen of the United States in the full constitutional sense of the term; but that it is a full complete power on the part of Congress to provide for the creation of federal citizens by the naturalization of persons of foreign birth. With the exception of a few early cases1 there has never been any question but that the power of naturalization, whatever its scope, is vested exclusively in Congress, The cases holding this from the time of Chirac v. Chirac2 to United States v. Wong Kim Ark3 are too numerous to cite.4
It lies within the legislative discretion of Congress to determine the mode of naturalization, the conditions upon which it will be granted, and the persons and classes of persons to whom the right will be extended; but, as was said in the Wong Kim Ark case, not to limit the civil and political rights of naturalized citizens beyond the limits provided for in the Constitution.
Except as limited by the Constitution it is within the power of Congress to determine the civil and political rights which naturalized citizens shall enjoy, and to make these rights less than those possessed by native-born subjects. The due process of law clause of the Fifth Amendment, however, would prevent any very great discrimination as to civil rights, and this limitation is reinforced by the obligations of international comity. The Constitution itself provides that only a native-born citizen shall be eligible to the Presidency,5 or to the Vice-Presidency.6
In the United States the granting of naturalization is held to be a judicial act.7
1 See especially Collet v. Collet, 2 Dall. 294; 1 L. ed. 3S7.
2 2 Wh. 259; 4 L. ed. 234.
3 169 U. S. 649: 18 Sup. Ct. Rep. 456; 42 L. ed. 890.
4 For an excellent statement of the exclusiveness of the federal power, see Taney's opinion in Scott v. Sandford. 19 How. 393; 15 L. ed. 691.
5 Art. II, Sec. 1, Cl. 5.
7Spratt v. Spratt. 4 Pet. 393; 7 L. ed. 897. Until 1S70 naturalization in England was by special act of Parliament. Naturalization papers are now panted by the Home Secretary. India and many of the other British colonies have laws of their own fixing the terms on which they will grant their own special citizenship to aliens - a citizenship which, of course, does not carry with it a general English citizenship. This practice is anomalous in that it makes the one so naturalized swear fealty to the English King and repudiate all foreign allegiance, and yet does not make him an English citizen except for the particular colony. Thus the British Naturalization Act of 1870 (Section 16) provides: "All laws, statutes, and ordinances which may be Congress by statute determines the courts which shall exercise the right to naturalize, and to such courts the function is exclusively confined. Congress may authorize, and for many years, has authorized, state courts to entertain naturalization proceedings, but there is, of course, no power on the part of the Federal Government to compel the exercise by such state courts of the power so granted.8 duly made by the legislature of any British possession for imparting to any person the privileges, or any of the privileges of naturalization, to be enjoyed by such person within the limits of such possession, shall, within such limits, have the authority of law." In an interesting note in the Juridical Review (XIV, 299) entitled "Naturalization in the Colonies," the question is raised as to the status in foreign countries of a person who has been granted all the rights of British citizenship within a particular colony, and has sworn fealty to the British King and has foresworn all other allegiance: - whether, for example, such a one while in France plotting against the English King would be guilty of treason, or what degree of British protection such a naturalized colonial would be entitled to in other than British territory. The author inclines to the belief that such a one would not, in the case supposed, be guilty of treason, also that a naturalized colonial would not be entitled to British protection while abroad.
In the report of the Inter-Departmental Committee on the Naturalization Law, presented to the Houses of Parliament July 24, 1901, it was recommended that "provision should be made by legislation enabling a Secretary of State, or the Governor of a British possession, to confer the status of a British subject upon persons who fulfil the requisite conditions in any part of the British Dominions, and that the status so conferred should be recognized by British law everywhere within and without His Majesty's dominions. This provision should be without prejudice to the power of the legislature of any British possession to provide for the conferring upon any persons under such conditions as it might see fit, the whole or any of the rights of British subjects within its own territory."
8 The question as to the power of the federal courts to set aside, upon the ground of fraud, a decree of naturalization granted by a state court, or to annul it by an injunction prohibiting giving effect to it, seems in doubt, as appears from some decisions rendered prior to the Act of 1906 below quoted: United States v. Norsch, 42 Fed. Rep. 417; United States v. Gleason, 78 Fed. Rep. 396. Of. article by Judge Henry Stockbridge, " the Law of Naturalization," in the Green Bag, XVII, 644. The Act of June 29, 1906, Section 15, provides that " it shall be the duty of the United States district attorneys for the respective districts, upon affidavit showing good cause therefor, to institute proceedings in any court having jurisdiction to naturalize aliens in the judicial district in which the naturalized citizen may reside at the time of bringing the suit, for the purpose of setting aside and cancelact of the parent has initiated for them. Ordinarily this is determined by application on their own behalf, but it does not follow that an actual equivalent may not be accepted in lieu of a technical compliance."
It has been held that naturalization has a retroactive effect to the extent of removing liability to forfeiture of lands held during alienage.9
The naturalization of a father operates as a naturalization of his minor children if they are dwelling within the United States.10 This same case holds that a declaration of a father of an intention to become naturalized gives to his children who attain their majority, before their father's naturalization is completed, an inchoate citizenship which, upon majority may be repudiated. "Clearly," say the court, "minors acquire an inchoate status by the declaration of intention on the part of their parents. If they attain their majority before the parent completes his naturalization, then they have an election to repudiate the status which they find impressed upon them, and determine that they will accept allegiance to some foreign potentate or power rather than hold fast to the citizenship which the ing the certificate of citizenship on the ground of fraud or on the ground that such certificate of citizenship was illegally procured. Whenever any certificate of citizenship shall be set aside or cancelled, as herein provided the Court in which such judgment or decree is rendered shall make an order cancelling such certificate of citizenship and shall send a certified copy of such order to the Bureau of Immigration and Naturalization; and in case such certificate was not originally issued by the Court making such order it shall direct the clerk of the court to transmit a copy of such order and judgment to the court out of which such certificate of citizenship shall have been originally issued. And it shall thereupon be the duty of the clerk of the court receiving such certified copy of the order and judgment of the Court to enter the same of record and to cancel such original certificate of citizenship upon the records and to notify the Bureau of Immigration and Naturalization of such cancellation." This provision has been held constitutional in United States v. Simon, 170 Fed. 680. This section further provides that: "If any alien who shall have secured a certificate of citizenship under the provisions of this act shall, within five years after the issuance of such certificate, return to the country of his nativity, or go to any other foreign country and take permanent residence therein, it shall be considered a prima facie evidence of a lack of intention on the part of such alien to become a permanent citizen of the United States at the time of filing his application for citizenship, and, in the absence of countervailing evidence, it shall be sufficient in the proper proceedings to authorize the cancellation of his certificate of citizenship as fraudulent."
9 Manuel v. Wolff, 152 U. S. 505; 14 Sup. Ct. Rep. 651; 38 L. ed. 532; Governor's Heirs v. Robertson, 11 Wh. 332; 6 L. ed. 488.
10 Boyd v. Nebraska, 143 U. S. 135; 12 Sup. Ct. Rep. 375; 36 L. ed. 103.