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.
Why?
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.
