Abstract
Excerpted From: Anthony M. Ciolli, The Right to Have Rights in United States Territories, 114 Kentucky Law Journal 829 (2025-2026) (342 Footnotes) (Full Document)
The United States Constitution codifies, both expressly and implicitly, an overwhelming number of individual rights and responsibilities. But one right unquestionably stands above all others as the most fundamental: the right to United States citizenship. The Citizenship Clause of the Fourteenth Amendment boldly proclaims that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” This right conferred by this simple sentence has “long ... been treasured by persons fortunate enough to be born with them” and “yearned for by countless less fortunate.”
Simply put, “[c]itizenship is unique” because it constitutes “the right to have rights” or, in other words, “a gateway to the exercise of a broad range of other rights.” Without United States citizenship, one generally cannot execute “the core cluster of” civic duties, “namely, the right to vote, to serve on a jury and to hold public office.” The federal and state governments can--and have--placed significant restrictions on the individual rights and liberties of non-citizens, such as precluding them from: traveling freely, exercising their First Amendment right to donate to a political campaign, accessing a plethora of social welfare programs ranging from social security benefits to federally guaranteed student loans, enjoying the right to bear arms under the Second Amendment, serving as an officer in the military, or holding certain jobs. Non-citizens are essentially always on probation and live their lives as if they are “stepping through a minefield” where “any slight misstep or inaction may instantly set off an order of removal” mandating their deportation from the United States. As even the Supreme Court once acknowledged, the withholding or recission of citizenship “may result in the loss 'of all that makes life worth living.”’
This, of course, oversimplifies the legal landscape quite a bit. There remain “technical distinctions among different types of non-citizens,” such as legal permanent residents, visa-holders, and unauthorized immigrants. The law also distinguishes between citizens by birth and those who became citizens through the statutory naturalization process, in that “[f]or the native-born citizen it is a right that is truly inalienable” while “Congress has authorized a special procedure that may result in the revocation of citizenship” of a naturalized citizen. And, of course, the Qualifications Clause of the United States Constitution provides, with a single exception, that “[n]o Person except a natural born Citizen ... shall be eligible to the Office of President.”
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Citizenship is not merely one constitutional right among many. As the Supreme Court has long recognized, it is “the right to have rights,” the legal status upon which the exercise of nearly every other civic, political, and constitutional guarantee depends. The Citizenship Clause of the Fourteenth Amendment was drafted precisely to remove citizenship from the realm of legislative grace and judicial discretion and to anchor it instead in geography and birth. In doing so, the Reconstruction Congress sought to foreclose the very sort of second-class political status that now persists in American Samoa.
The continued denial of birthright citizenship to those born in American Samoa cannot be reconciled with the text, structure, or original public meaning of the Citizenship Clause. The Constitution does not distinguish between incorporated and unincorporated territories, nor does it condition citizenship on congressional preference, cultural accommodation, or judicial balancing tests untethered from constitutional text. The phrase “in the United States” was understood at the time of ratification to include territories under U.S. sovereignty, and nothing in the Fourteenth Amendment suggests that the most fundamental of constitutional guarantees was meant to wax and wane based on later-invented doctrines of territorial incorporation.
Yet modern federal courts have repeatedly declined to decide this question on its merits. Instead, they have relied on the Insular Cases-- decisions that neither addressed the Citizenship Clause nor contemplated its application--to manufacture ambiguity where none exists and to justify withholding citizenship through an “impracticable and anomalous” framework that was never designed to apply to a right defined solely by geography. In doing so, lower courts have transformed the Insular Cases from a disfavored relic of a colonial past into an all-purpose license to suspend constitutional rules whenever their application might complicate governance in the territories.
This approach has produced an unstable and incoherent regime. It permits individuals born under United States sovereignty to live permanently within the United States while carrying a lesser legal status that deprives them of basic civic participation, exposes them to criminal liability for good-faith mistakes, and subjects them to a naturalization process designed for aliens despite their undisputed allegiance to the Nation. Worse still, it does so without meaningfully advancing the interests it purports to protect. Withholding citizenship from those who leave American Samoa does nothing to preserve the fa’a Samoa, safeguard communal land tenure, or protect indigenous self-government. It merely exports the consequences of territorial exceptionalism to the mainland, where cultural preservation rationales have no plausible application.
None of this requires courts to choose between individual rights and cultural survival. The Constitution has long accommodated indigenous land regimes, ancestry-based property restrictions, and other distinctive territorial institutions through ordinary constitutional analysis. Equal protection doctrine, political question principles, and respect for negotiated sovereignty all provide tools far more principled--and far more legitimate-- than reliance on a textual framework born of racial hierarchy. What the Constitution does not permit is the creation of a permanent class of Americans whose citizenship turns not on constitutional command, but on judicial reluctance to “settle this question right.”
The Citizenship Clause was meant to be self-executing, categorical, and uniform. Restoring it to that role would not erase the cultural distinctiveness of American Samoa or diminish the dignity of its people. To the contrary, it would affirm that those born under the American flag are full members of the political community, entitled to the same constitutional starting point as every other American. More than a century after the Insular Cases, and on the eve of the Nation’s 250th anniversary, it is long past time for the courts to recognize that citizenship, once promised by the Constitution, cannot be withheld by precedent, policy concerns, or fear of difficult questions.
Anthony M. Ciolli is Practicing Faculty at St. Mary’s University School of Law, a past president of the Virgin Islands Bar Association, and Special Assistant to the Chief Justice of the Virgin Islands.
