I had promised myself that I wouldn’t write a politically oriented post (or a post that could be classified as political) relative to the current administration until at least July. Sadly, current events force me to break that promise.
Here’s my question: Is American citizenship determined by the United States Constitution or by agents of Homeland Security? Do people in this country (depending on their surname or what they look like) need to carry “papers” indicating their citizenship status or place of origin? Can Federal agents individually refuse to acknowledge the 
authenticity or validity of such papers? And what happens if they do?
The Fourteenth Amendment to the United States Constitution, ratified in 1868, plays a critical role in guaranteeing citizenship. Its Citizenship Clause, found in Section 1, states: “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.” This clause clearly establishes that anyone born on U.S. soil, regardless of race, background, or the status of their parents, is a citizen of the United States.
The amendment was adopted after the Civil War to protect the rights of former slaves. Before the amendment, African Americans slaves were denied citizenship under the infamous Dred Scott v. Sandford decision (1857). The Fourteenth Amendment overturned that ruling and guaranteed equal Federal and state citizenship to all individuals born or naturalized in the country.
The Fourteenth Amendment also ensures due process and equal protection under the law. The Fifth Amendment tells the Federal government that no one shall be “deprived of life, liberty or property without due process of law.” (Note that the Fifth Amendment does not require citizenship to be applicable). The Fourteenth Amendment used the same eleven words, called the Due Process Clause, to describe the same legal obligation to all the states. It, too, does not require citizenship for the Due Process Clause to be applicable. These protections prevent states from enacting laws that would strip citizens (and residents) of their rights arbitrarily.
So why the question about what or who determines citizenship when the Constitution clearly states such? Because we are discovering that your citizenship status depends on whether or not agents of Homeland Security, specifically Immigration and Customs Enforcement (ICE) agents, chose to believe you or honor your documentation. In some cases, you could be sent to an El Salvadoran prison without ever seeing a judge or having legal representation – a clear violation of the 5th and 14th amendments’ Due Process Clause.
Can’t happen here? It’s happening now. In March 2025, Jensy Machado, a U. S. citizen, was handcuffed, arrested and detained by ICE agents on his way to work. On January 26th, ICE agents stopped and handcuffed a Utah man who honked at the agents from his car. Video evidence later proved the man did not swerve at the ICE agents vehicle as the agents claimed. On March 15, Kilmar Abrego Garcia of Maryland was deported to El Salvador, despite being under a 2019 Protective Court Order not to be deported to that country. Had Garcia been afforded Constitutional “Due Process,” he might be home with his wife and three kids now. To make matters worse, the GAO found that Custom and Border Protection and ICE are not required to track how often they hold citizens on immigration charges or how long per ProPublica.
The Due Process Clause applies to EVERYONE regardless of citizenship status (per the 5th and 14th Amendments) or it applies to no one. I’m not overstating the obvious, when I say that the unalienable rights of life, liberty and the pursuit of happiness, Jefferson wrote of are nothing more than “conditional” rights subject to the whim of the State, if agents of the Government (regardless of their position on the hierarchy chart) fail to recognize them, respect them and act accordingly.
