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.

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.

Born in Liberty, Drowned in Govenment

The conservative blogosphere is full of the possibility that the President will shortly release a new set of executive actions designed to infringe on the Second Amendment right to keep and bear arms.

Patience and fortitude have their place.

But, as Thomas Jefferson quite directly stated, "the tree of liberty must be watered, from time to time, with the blood of patriots and tyrants. It is its natural manure."

A President must remain within the bounds of the Constitution.

A President that trespasses on the natural rights of men during his adventure outside of constitutional bounds commits impeachable "high crimes and misdemeanors."

A Congress that observes a criminal and tyrant in office and fails to impeach him for doing so foments conditions of revolution.

Obama is our new King George III.

The Republican Congress is our new Parliament.

The time to say, "enough" and "no more" certainly comes, if it has not passed already.

The very Declaration of Independence that is the fundamental document of this Nation's founding declares the unalterable principle, "That whenever any Form of Government becomes destructive of these ends, it is the Right of the People to alter or to abolish it, and to institute new Government, laying its foundation on such principles and organizing its powers in such form, as to them shall seem most likely to effect their Safety and Happiness."

That fundamental right -- to remove, by force if necessary, those agents of government and forms of government, that are destructive of liberty -- is as fundamental an aspect of the American experiment as any that claims to be such.

The question remains. Does our George III dare to impose on the great mass of the American people, who will, rather than surrender arms, remove him and do so, if necessary, by force and violence?

Our Nation knows no king. Our Declaration recognizes no right in government to deform or destroy liberty. I do not yearn for revolution, I yearn for the restoration of the American republic as a limited government answerable to the People and compliant with the Constitution.

But the long trail of abuses of this administration, together with the failure to attend to the pleas of the People to rectify these abuses, and to bring the President to heel, will either produce revolution, or serve as our sad epitaph:

Born in Liberty, Drowned in Government.

Ted Cruz Still Isn't Eligible to Be President ... Or Is He?

The Eligibility Clause of Article II states:

No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a Resident within the United States.

Going back two years, I expressed the view that Ted Cruz is ineligible to be elected President of the United States. In the interim, I have written a few additional posts, including one responding to two former Solicitors General of the United States. Their joint blog post on Harvard Law Review's blog put them in the "Ted's eligible" column. I've gathered my posts in a convenient page for your reference.

For me, Cruz's nettlesome thicket is found in that first phrase, "No person except a natural born citizen[.]" Cruz was born to an American mother and Cuban expatriate father. His married parents lived in Canada at the time of his birth. In fact, Cruz held dual Canadian and US citizenship until 2014 when he surrendered his Canadian citizenship.

Now, to get into the nettles of his thicket.

Cruz, under Canadian law, was a natural born citizen of Canada at birth. But, because US law at the time of his birth so provided, he also acquired US citizenship at birth.

Now, the question that troubles me, the obstacle I see standing between Cruz and the Presidency, is whether that citizenship he acquired at birth meets the requirement that he must be a "natural born Citizen." You see, he either acquired that status because he had a natural right to it, or because his mother had a natural right to confer that status on him, or because the nation had a natural right to confer it on him. I have concluded, based on his birth outside the United States, that he is not a "natural born citizen."

I have not changed my conclusion. I am, however, giving the possibility that he is eligible one last probing. Let me explain a dilemma, and ask your assistance.

Allow me to back into the discussion this way:  I am a citizen of the United States. I know that I am. But, how do I know it? I am a lawyer by trade, and like most lawyers, I tend to examine things through the lens of the law. In this instance, I examine the question of my citizenship through that same lens, and conclude that I am a citizen. In this case, the lens of the law is tinted with statutory, constitutional, and historical tints.

If only everyone could agree with the easy simplicity of constitutional text.

The Fourteenth Amendment to the Constitution says that I am a citizen. 

It says, all persons (I'm one of the those), born or naturalized in the United States (I was born there), and subject to the jurisdiction thereof (since I am not part of a foreign diplomatic corps here on service to that nation, and since I am not part of an enrolled Indian tribe, I am subject to its jurisdiction) are citizens of the United States and the State in which they reside.

A federal statute also says that I am a citizen. 

Title 8 USC 1401 provides several categories of persons who are "nationals and citizens of the United States at birth[,]" including "person[s] born in the United States, and subject to the jurisdiction thereof[.]" As I mentioned above, I am one of those folks, so I am a citizen of the USA by operation of 8 USC 1401. 

But, suppose that Congress had never enacted that federal statute, 8 USC 1401. Would I be a citizen of the USA? Yes, in fact, the separate operation of the Fourteenth Amendment makes me a citizen, whether the Congress adopted a law saying so or not. 

Our common law tradition says that I am a citizen.

Well, then, suppose that the statute had not been enacted and the Fourteenth Amendment had not been ratified and made part of the Constitution. Would I be a citizen of the USA? Again, yes, I would still be a citizen of the United States. As my prior posts indicate, the States that make up the Union -- Louisiana excepted -- adopted the common law of England when they were admitted to the Union (or in the case of the original thirteen colonies, when they created it). Under English common law, a person born on English soil was a subject of the Crown (unless their parents were present in England on diplomatic service from another nation). 

Translated to America, this concept of jus soli meant that, born on the soil of the Commonwealth of Virginia, one was a Virginia citizen. So, even in the absence of any provision of the Constitution or statute, I would be a citizen of whatever State in which I was born (New Mexico, by the way). Prior to ratification of the Fourteenth Amendment, State citizenship in any State of the Union equated with citizenship of the United States.

In that period, prior to the Fourteenth Amendment and after the ratification of the Constitution, Congress had a constitutionally-derived power to "naturalize" citizens. Naturalization means to make one a citizen who was not born one. The States granted that power to the Congress in Article I, section 8 of the Constitution. When Congress first exercised that power, in the naturalization act of 1790, it adopted a provision of the law that made certain children born to American parents abroad "natural born citizens." Five years later, Congress repealed that law and crafted a new Naturalization Act, but did not again employ the phrasing "natural born citizen" to characterize the citizenship status of children entitled to be citizens despite their birth abroad. 

So, then, Congress took one foray into the field of granting "natural born citizen" status via statute, and has never done so since then. That does not necessarily answer the question of eligibility because it does not necessarily answer the question of whether there is a difference between a "natural born citizen" and "citizen at birth" (which is the statutory phrasing from the Immigration and Nationality Act).

The Constitution would resolve this lingering doubt of mine if, but only if, it stated a governing principle in an indisputable manner. I happen to think that it does so when it states the requirement of being a "natural born citizen" for purposes of presidential eligibility. To my mind, that leaves anything other than citizenship consequent to birth on our soil as different from "natural born citizenship." The problem, however, is that all manner of folk, including other legal "experts," treat the principal citizenship statute (8 USC 1401) as conferring "natural born citizenship" on those children born abroad who are treated in the statute as being "citizens at birth."

If we go back to our lineal legal ascendants, the English, their Parliament asserted and exercised a power regarding naturalization of persons born abroad as English subjects. Remember, English law on creation of the subject-Crown relationship required only that a person was born on English soil (except when parents were present in English under legal privilege by, for example, service as emissaries of a foreign power). Yet, before we pulled ourselves up from the English garden and replanted ourselves as the united States of America, Parliament had asserted and exercise a power to grant to certain persons born abroad from English the status of natural born subjects.

So then, the question might be answered by assuming that the power asserted by the Parliament to make natural born subjects of persons that, prior to Acts of Parliament, would only ever be denizens of the Crown was a power natural to, attendant to, the legislative function. If that were the case, then when we stood legislatures up in the united States of America, there would be no reason to suppose that the same power exercised by Parliament -- making natural born subject out of foreign born denizens -- could not be exercised by the State legislatures. Of course, that still does not answer whether a like power would be found in the grant of legislative authority to the Congress by the States in the Constitution.

Remember, Article I provides only that Congress shall have power to make a uniform rule for naturalization. It does not provide by express terms a power to make anyone a natural born citizen, nor a power to define the precise terms of the Constitution. But we could assume -- and based on "scholarly" blog posts it appears that many do -- that the States had the power to do so as independent sovereign States. We could then further assume -- as those scholarly blog posts do -- that the States concluded that they should grant to the Congress that power and that they did so by the otherwise seemingly unambiguous "Naturalization Clause."

The Governator Question: If Congress Can Make Persons Born Outside the United States "Natural Born Citizens," What Would Prevent Congress from Making Governor Schwarzenegger One?

For those who are willing to take each of these assumptive steps (leaps, in my judgment), there really is a further problem that they must own up to as a consequence of their approach to the construction of this constitutional provision. If the Congress garnered from the States via the "Uniform Rule of Naturalization" Clause a power to grant "natural born citizen" status to certain persons born abroad, what limiting factor prevents Congress from expanding the categorical definitions from time to time, as need, or whim, direct? I refer to this as the Governator Question.

Suppose that a Republican majority in the House and the Senate passed a law tomorrow adding a new section to the Immigration and Nationality Act. That provision, the Governator Clause, would permit any person that has acquired citizenship by naturalization, that has continuously resided in the United States for twenty years or more, and that has been elected to a State wide office at least once, to be treated, for purposes of law, as a "Natural Born Citizen." The effect of such a law would be to make Arnold Schwarzenegger eligible to be elected President.

Perhaps that really is what our Constitution has done. Perhaps the delegates to the Constitutional Convention of 1787 actually crafted the "Uniform Rule of Naturalization" Clause with all these sequelae and consequences in mind. Perhaps the States in convention to ratify the new Constitution really contemplated the surrender of these affects of sovereignty to the federal government.

If those who can show these discussions took place would kindly do so, I could wholeheartedly support Ted Cruz. If those who can show that the Convention, and the State ratifying conventions, conducted such votes would kindly do so, I could wholeheartedly support Ted Cruz. If those who can show that the participants in these conventions held these intentions would kindly do so, I could wholeheartedly support Ted Cruz.

I await proffers of such evidence as might be forthcoming.