Can the 14th Amendment’s Citizenship Clause Apply to Unincorporated Territories?

• In Event: American Empire in the 20th Century: Transformations in Law and Representation

Abstract

Following the enactment of the 14th Amendment, Congress, exercising its enumerated powers under the Territories Clause (Art. IV, §3, cl. 2) began to extend the Constitution to the territories through legislation. In 1927, Congress began to enact birthright citizenship legislation for unincorporated territories anchored on the 14th Amendment. Today, birth in the US Virgin Islands, Puerto Rico, Guam and the Commonwealth of the Northern Mariana Islands is tantamount to birth in the United States for citizenship purposes. Notwithstanding, academics either refuse to engage the historical evidence and argue that Citizenship Clause of the 14th Amendment cannot apply to unincorporated territories that are ruled as foreign territorial possessions for domestic or constitutional purposes. This paper responds to these claims and argues that since the 19th Century Congress has consistently enacted legislation extending the Citizenship Clause to U.S. territories, and Federal Courts have not challenged this power in more than a century and a half.

Author

• Charles R. Venator-Santiago, University of Connecticut