Birthright Citizenship and a Typhlotic Courtroom Lesson 3: The Reconstruction Era

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Birthright Citizenship and a Typhlotic Courtroom - Lesson 1: Esrly U.S. Citizenship

Birthright Citizenship and a Typhlotic Courtroom - Lesson 2: The 14th Amendment

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Thank you for your interest in constitutionmatters.net. Please be advised that in order to fully appreciate this commentary, it would be wise to first read Lessons 1 - 2 of this series. Those lessons provide valuable foundational support for what you will read here. They can be found under Constitution Commentaries or Commentaries Alphabetical Listing in the menu at the top of the page.

Slaughterhouse Cases

The Slaughterhouse cases arose out of Louisiana where certain businessmen challenged a law passed by the state legislature in 1869 effectively granting a monopoly to a slaughterhouse located in New Orleans. The law permitted The Crescent Livestock Landing and Slaughterhouse Company to have exclusivity for the slaughtering of animals in the city, denying other companies a free market. The butchers who were crowded out attempted to employ the Involuntary Servitude Clause of the 13th Amendment (being forced to work for another company) and the Privileges and Immunities Clause of the 14th Amendment to make their case. The Supreme Court, in 1873, ruled in favor of Crescent Livestock Landing and Slaughterhouse Company based partly on the principle of federalism (states’ rights) and partly on the inapplicability of the arguments offered by the plaintiffs.

Many undoubtedly wonder what this case has to do with the subject matter of this article, which is the principle of birthright citizenship in the United States. As a matter of clarity, the reader should recognize that the Slaughterhouse rulings were given a mere five years after the adoption of the 14th Amendment and the circumstances, arguments, and reasoning behind that amendment were still fresh in the minds of the justices.

What is significant about the Slaughterhouse cases is the constitutional rationale the Court employed in their ruling. In that decision, the Court insisted that the 13th and 14th Amendments did not apply in these cases since the sole purpose of those amendments was the protection of privileges and immunities with respect to the community of former slaves and their families. These amendments were not written to settle economic squabbles among white men. The following is an excerpt from the majority decision written by Justice Samuel F. Miller.

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By “other articles,” the justice was referring to the 13th and 14th Amendments on which the plaintiffs relied. His point was that these three amendments were conjoined as part of Reconstruction and should not be used outside of that context. As a group, they were designed to 1) free the slaves (13th Amendment), 2) grant citizenship and equal rights and protections to the slaves and their families and prevent Southern insurrectionists from regaining government authority (14th Amendment), and 3) grant former slaves the right to vote (15th Amendment). Consequently, according to Justice Miller, but for the freeing of the slaves, these amendments would not exist as written.

Elk v Wilkins

Elk v Wilkins, a case that landed before the Supreme Court in 1884, which was a mere sixteen years after the adoption of the 14th Amendment, dealt specifically with the Citizenship Clause. In this case, John Elk, a Winnebago Native American, was born on an Indian reservation within the territorial bounds of the United States. He later resided off-reservation in Omaha, Nebraska, where he renounced his former tribal allegiance and claimed birthright citizenship by virtue of the Citizenship Clause of the 14th Amendment. The case came about after Elk tried to register to vote on April 5, 1880. However, he was denied by Charles Wilkins, the named defendant, who was registrar of voters of the Fifth ward of the City of Omaha. The denial was based on John Elk’s lack of naturalization.

The Supreme Court, in a 7–2 decision, ruled that although Elk was born in the United States, he was not a citizen because, having been born on an Indian reservation, he was not subject to the jurisdiction of the United States at the time of his birth. The Court recognized that, since John Elk’s case fell under the umbrella of “Indians not taxed” (14th Amendment, Section 2), his citizenship status was subject to the naturalization rules designated in The Naturalization Act of 1802. Here are some excerpts from the majority decision in the case:

Two specific points stand out in Justice Horace Grey’s majority opinion. First, a full explanation is given of the original intent of the phraseology, “under the jurisdiction thereof.” Second, the Court plainly invoked The Naturalization Act of 1802, meaning the Court understood that citizenship stipulations stated in that act were still applicable to foreigners who entered the country (Indians were considered foreigners because they lived on reservations legally separate from the United States).

Additionally, the justice noted that the phrase, “under the jurisdiction thereof” was equally applicable at the time of birth and the time of naturalization. Since, under The Naturalization Act of 1802, a child’s citizenship was reflective of the parents’ citizenship status, a child born of non-citizens in 1884, sixteen years after the adoption of the 14th Amendment, was not granted birthright citizenship.

Since the Court invoked U.S. naturalization rules in Elk v Wilkins, it seems clear that those rules were not impacted by the 14th Amendment, nor was that the intent. As stated by the Court in the Slaughterhouse cases, the 14th Amendment was designed to specifically incorporate former slaves and their families into the community of the United States in the Post-Civil War era. Consequently, the provisions of this previous act remained intact according to the Court’s ruling. Under the stipulations of The Naturalization Act of 1802, children born of foreign (non-citizen) parents who happened to be in the United States at the time of birth were not granted birthright citizenship.

Citizenship in the Post-14th Amendment Era

The rulings in both the Slaughterhouse cases and Elk v Wilkins demonstrate the fact that the citizenship stipulations of The Naturalization Act of 1802 remained unaffected by the 14th Amendment. It was clearly not Congress’ intent that the normal naturalization of foreigners and their families would be impacted by an amendment designed specifically to facilitate the citizenship of former slaves.

There is additional evidence that the 1802 statute remained intact beyond 1868. According to The Naturalization Act of 1802, U.S. citizenship was available only to “a free white person.” However, two years after the ratification of the 14th Amendment, Congress passed The Naturalization Act of 1870, making naturalization available to those of color who emigrated from Africa. The passage of this act two years later demonstrates that the term ‘all people’ in the 14th Amendment was not intended to override current law. The Naturalization Act of 1802 remained the authority where naturalization of immigrants and their children was concerned.

The 14th Amendment was ratified in 1868. For the next thirty years the 14th Amendment and The Naturalization Act of 1802 worked in complementary fashion. Former slaves were incorporated into the citizenry of the United States while, concurrently, foreigners arrived in droves seeking to become naturalized citizens in accord with The Naturalization Act of 1802. Thus, the citizenship of the nation saw dramatic growth. However, during that thirty year period, children born to non-citizens on American soil were not granted citizenship by birth. This is because the 14th amendment did not apply to them. Their citizenship status was linked directly to their parents’ citizenship status under the auspices of the 1802 rules of naturalization.

It is not stated explicitly in the amendment, but available evidence indicates that all former slaves were granted instant citizenship upon ratification of the 14th Amendment. Courts have held that slaves were granted citizenship through the Citizenship Clause, which states that “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.” Their citizenship was recognized even though many of those former slaves were neither born nor naturalized in the U.S. – the amendment’s two conditions of citizenship. Additionally, nothing in the wording of the amendment suggests that such citizenry should apply retroactively to slaves who were actually born on American soil. Certainly, it is not unreasonable to suggest that the Citizenship Clause could have been written with greater clarity.

Stay tuned to constitutionmatters.net for Lesson 4 of this series, which will appear on this website on Monday, May 11, 2026. That session will examine the single Supreme Court ruling that dramatically upended the original intent of the 14th Amendment.

                                        End Lesson 3

The most cursory glance at these articles discloses a unity of purpose, when taken in connection with the history of the times, which cannot fail to have an important bearing on any question of doubt concerning their true meaning. Nor can such doubts, when any reasonably exist, be safely and rationally solved without a reference to that history, for in it is found the occasion and the necessity for recurring again to the great source of power in this country, the people of the States, for additional guarantees of human rights, additional powers to the Federal government; additional restraints upon those of the States. Fortunately, that history is fresh within the memory of us all, and its leading features, as they bear upon the matter before us, free from doubt. . . .

[I]n the light of this recapitulation of events, almost too recent to be called history, but which are familiar to us all, and on the most casual examination of the language of these amendments, no one can fail to be impressed with the one pervading purpose found in them all, lying at the foundation of each, and without which none of them would have been even suggested; we mean the freedom of the slave race, the security and firm establishment of that freedom, and the protection of the newly made freeman and citizen from the oppressions of those who had formerly exercised unlimited dominion over him. It is true that only the fifteenth amendment, in terms, mentions the negro by speaking of his color and his slavery. But it is just as true that each of the other articles was addressed to the grievances of that race, and designed to remedy them as the fifteenth.

They [the Indian tribes] may without doubt, like the subjects of any foreign government, be naturalized by the authority of Congress and become citizens of a state and of the United States, and if an individual should leave his nation or tribe, and take up his abode among the white population, he would be entitled to all the rights and privileges which would belong to an emigrant from any other foreign people.

But an emigrant from any foreign state cannot become a citizen of the United States without a formal renunciation of his old allegiance, and an acceptance by the United States of that renunciation through such form of naturalization as may be required law.

This section contemplates two sources of citizenship and two sources only: birth and naturalization. The persons declared to be citizens are "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.

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