Zietlow on the 14th Amendment's Citizenship Clause

Rebecca E. Zietlow, University of Toledo College of Law, has posted The Other Citizenship Clause, which is to appear in “The Greatest and Grandest Act”: The Civil Rights Act of 1866 from Reconstruction to Today, ed. Christian Samito (Southern Illinois University Press).  Here is the abstract:    

The first sentence of the Fourteenth Amendment declares that “all persons born or naturalized within the United States . . . are citizens of the United States.” This clause defined the criteria for United States citizenship and established birthright citizenship as a principle of constitutional law. Yet two years before the Fourteenth Amendment became law, the Reconstruction Congress had already declared “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed . . . to be citizens of the United States.” This other Citizenship Clause is the preamble to the 1866 Civil Rights Act. This statutory clause directly contravenes the United States Supreme Court’s ruling in Dred Scott v. Sanford that freed slaves could not be citizens. Yet the 1866 Act was based on Congress’ power to enforce the Thirteenth Amendment, and before the Fourteenth Amendment’s Citizenship Clause was ratified. How could the members of the Reconstruction Congress have believed that they had the power to enact the other Citizenship Clause? The answer to this question has implications for the original meaning of the Thirteenth Amendment and its enforcement clause. Scholars have generally linked citizenship rights to the Fourteenth Amendment, and not the Thirteenth. However, the other Citizenship Clause is evidence that either the Thirteenth Amendment established freed slaves as United States citizens, or the Amendment’s enforcement clause empowered Congress to overturn the Supreme Court’s interpretation of the Constitution in Dred Scott on its own.

The 1866 Civil Rights Act was based in Congress’ new power to enforce the Thirteenth Amendment pursuant to its enforcement clause, Section Two. Thus, the 1866 Civil Rights Act provides a glimpse of those fundamental rights which the members of the Reconstruction Congress believed to be inherent in freedom, and furthers our understanding of the original meaning of the Thirteenth Amendment and its enforcement clause. The Act’s citizenship clause is evidence that many members of the Reconstruction Congress believed that free Blacks were United States citizens with fundamental rights. In their view, the Thirteenth Amendment not only ended slavery, but recognized the citizenship rights of freed slaves. For those members of Congress who did not equate freedom with citizenship, the other Citizenship Clause reflects the scope of their power to enforce the Thirteenth Amendment with “appropriate” legislation. Did they believe that the Amendment empowered them to overturn Dred Scott with a statute? If so, they thought that their enforcement power was broad indeed.