Sunday, April 10, 2016

A Quick Primer on Determining Citizenship

Here is a quick civics lesson on the topic of citizenship and how citizenship is determined by law.
To begin with, going back through the history of the development of the law, there have been two basic approaches to how the citizenship of a child is determined.
One approach asks the question: "What is the citizenship of the child's parents?"
Take, for example, a family consisting of a husband and wife who lived their whole lives, from birth, in Switzerland, and that are working at the Swiss Embassy in Washington, DC, when their child is born. Under Swiss law, the child has the citizenship of the parents, Swiss citizenship.
Now, as a complicating factor, the birth is in the USA, where our Fourteenth Amendment makes "all persons born" here and "subject to" our jurisdiction "citizens." The application of the Fourteenth Amendment Citizenship Clause might seem to mean that the child would also be an American citizen. But the seeming complication is resolved by understanding that persons in the USA serving as foreign delegates and emissaries are not, typically, subject to our legal jurisdiction (think "diplomatic immunity").
The rule the Swiss observe, and most European countries other than the UK, is the rule of citizenship through blood or heritage, called JUS SANGUINIS. Sanguinis is a latin term for the blood. The concept is that citizenship is decided by blood, or more correctly, by inheritance from one's parents.
So, despite the child's foreign birth, the child would be viewed by Switzerland as a Swiss citizen, and would not be viewed by the USA as a US citizen.
The other principal approach asks the question: "What is the place of birth of the child?"
Take our Swiss family above, however, bring them to the USA on student visas to study at one of our fine institutions of higher education. They give birth to a child here, but are not intending to remain in America after they complete their education.
What is the citizenship of that child?
Suppose that the family returns to Switzerland and builds a family home and a life there. When the child is a young adult, he presents himself to take advantage of some program, but is required to provide proof of his Swiss citizenship. He shows the American birth certificate, and his Swiss registration of birth abroad, which his parents filed at a Swiss consulate in the USA. He may still be denied access to programs limited to participation by Swiss citizenship.
Well, under Swiss law he could certainly claim Swiss citizenship. His birth abroad, properly registered at the time with a Swiss consulate in the country of his birth, would not be an obstacle.
Still, his birth in the USA at a time when he and his parents were "subject to" American "jurisdiction" (remember, in this example, his parents are just students studying here and not working as representatives of the Swiss government) would also mean that, under the Fourteenth Amendment, US law would treat the child as a US citizen. The Fourteenth Amendment adopted for the entire nation the legal principle of JUS SOLI, or "citizenship of the soil."
Now, despite claims by some, the Fourteenth Amendment's grant of citizenship at birth to persons born in the United States was NOT a change in the general principle of law for the United States so much as it was a guaranteed expansion of the existing principle to newly freed slaves, whose claim to citizenship and the protections of the Constitution had been roundly rejected by the Supreme Court in the infamous Dred Scott v. Sandford decision. But the manner of deciding how citizenship was acquired -- by birth in the United States or by naturalization -- was the pre-existing principle and applied to such questions for persons other than African slaves.
In fact, from the time of the Revolution, when the thirteen English colonies became thirteen independent States, the principle of jus soli governed this question of citizenship. How do we know that this is so? It is, without dispute, the fact that, before the Revolution, the American colonies were governed by English law. The great body of English law consisted of two parts. There were the statute laws enacted by Parliament. There were the legal principles derived from judicial decisions of English courts. The first body of law would be English Statute Law. The second body of law would be English Common Law. When the colonies rebelled, threw of the colonial yoke, and set themselves up as independent NATIONS, they weren't rejecting their identity as Englishmen in toto. It was, in fact, their claim that the Crown and the Parliament were failing to accord to them treatment under law equal to that afforded to their English brethren at home.
When these Nation States stood up and claimed for themselves equal stations in the world, they ADOPTED English Common Law as the rule of law in each of their Nations. They accomplished this in two ways. In certain States, statutes were passed by the legislatures adopting English Common Law as the rule of law for the State, until repealed or replaced. These statutes were, and are still, called "Reception Statutes." Other States adopted English Common Law by judicial decision. (Ultimately, with the sole exception of Louisiana, all the States of the Union also adopted English Common Law as the rule of law until repealed or replaced.)
Why does the adoption of English Common Law matter to the question of citizenship?
English Common Law matters because, under it, the question of citizenship was always addressed and resolved using jus soli, or citizenship by place of birth. While Parliament did subsequently enact statutes to grant British citizenship to the children of Englishmen living abroad, the English Common Law always held that EVERY CHILD BORN WITHIN BOUNDARIES OF THE KINGDOM was an English citizen (the sole exception to Britain's claim of citizenship would be children born to foreign emissaries or delegates in England due to serving there as representatives of their home country).
So, as a young adult, the American-born Swiss man might think of himself as Swiss, or as American, or, though he would be wrong to do so, he might think himself as a holder of dual citizenship, of Switzerland and the USA.
He would be wrong, however, to think that because, while the USA allows dual citizenships, Switzerland does not do so. In fact, in Switzerland, the presumption legally strips a Swiss citizen in such circumstances of their Swiss citizenship unless the individually proactively shows that they have surrendered their claim to citizenship in the other country.
Because Switzerland does not recognize or allow dual citizenship, the young man would be Swiss if he renounced his US citizenship. But if he did not DO ANYTHING AT ALL, he would only be a US citizen.
These fact patterns can be more complex in many ways. Nations no longer simply follow either jus sanguinis or jus soli. There are hodgepodges of conditional citizenship grants and the like adopted by legislative bodies or constitutions around the world.
In addition, as travel is safer and more available to broad economic classes, the chances increase that a child will be born to parents with different citizenships.
So, for example, a man might be from Cuba, and living in Canada. He might marry a woman from the United States, also living in Canada.
They might take no action to seek Canadian citizenship. Or they might apply for Canadian citizenship. To do so, they might, or might not, be required to take action regarding the citizenship they acquired at the time of their births in the places of their births.
So, for example, the fact that a Cuban lived outside Cuba did not necessarily mean that Cuba abandoned its claim to his loyalty. The fact that an American lived in Canada did not mean we abandoned our claim of loyalty to her. And, in fact, under Cuban law, any child born to that man might be claimed as a Cuban national by Cuba, and any child born to that woman might be claimed as an American national by the United States.
To further complicate matters, if we are using the example of any of the Nations that were once English colonies, as both Canada and the United States were, then the nation where the child of the Cuban father and the American mother was actually born might also claim that child as a citizen. So such a child might -- other considerations set aside temporarily -- be a citizen of Cuba, America, and Canada.
Now, oftentimes, discussions of this sort might strike a person as being kind of like discussions about how many angels can dance on the head of pin. And that would likely be true, except when it isn't.
Citizenship can matter.
Suppose, for example, that you were an American Jew, with US Citizenship as a result of your birth here, but entitled to Israeli citizenship under the Law of Return. You might hold two passports. But if you were on board the Achille Lauro and your ship was hijacked by Palestinian terrorists, you might well hide or destroy your Israeli passport for fear that, if found, the Palestinians might roll your wheelchair to the side of the ship and throw you overboard.
Or perhaps you were an Englishman living in Switzerland after the start of World War II. Returning home on your English passport might present real complications for you. There are times when more is at stake than simply be thought of as "the ugly American."
There are other times that citizenship can matter, as well.
When England was seeking a legitimate occupant of the Throne after the Commonwealth, there were no generally acceptable and likely takers until Parliament adjusted the governing principle, found in English Common Law, that only persons born in the Kingdom were citizens and capable of inheriting lands or titles. In fact, it was that impetus, the search for a King, that led Parliament to enact the first statute under which it granted natural born citizenship status to anyone born outside England, which, in turn, allowed the Elector of Hanover to claim the throne of England as George I. George I was the grandfather of George III, whose reign witnessed the American Revolution.
So, for most of us, most of the time, there are not many great concerns that depend on our citizenship. We are not likely to be executed or elected King because of it. But it can be made to be a matter of significance and it is a set of principles about which we should be concerned and to which we should devote some understanding.
Now, if you think that you recognized, in one of my fact patterns, the life story of one candidate for the Republican nomination, you actually did. Ted Cruz is that man whose father was Cuban and whose mother was American and whose birth in Canada resulted in claims of patriation and fealty by three separate nations: Canada by reason of his birth there, Cuba by reason of his father's citizenship there, and the United States by reason of his mother's citizenship.
While some folks think that there is no reasonable objection or justification for doubting that Ted Cruz is not only a US citizen but also a "natural born citizen" of this nation, I am not going to answer that question here. I am, however, going to leave you with the suggestion that, giving the complexity of the facts related to his birth, it is unreasonable to treat those who entertain doubts about his status as ignorant buffoons, particularly if you have not previously given all these factors due consideration.