A review of
some of the traditions of acquiring citizenship in the US.
Why The Problem Arises: In general, the right to acquire citizenship at birth derives from two distinct legal traditions.
The first is "jus soli", an Anglo-Saxon concept, that is used by Great Britain, the United States, and others. The second is "jus sanguinis", a fundamentally different concept, which dates at least to Roman times and is used by most of the other countries of the world. The two are not congruent and therefore do not cover all of the same individuals in every circumstance. Care must be taken to ensure that no one is left out.
Jus Sanguinis:
Under "jus sanguinis" the nexus that is recognized by the law is the link between the parent and the child. A birth brings an automatic continuity of the citizenship of the parent to the child by virtue of this blood (sanguinis) tie. The place of birth, therefore, does not create any legal problem in the continuity of citizenship. No principle, other than "jus sanguinis", needs to be invoked for human rights to be transmitted equally and ubiquitously, unless, of course, a government chooses to endow only expatriates of one sex with this "jus sanguinis" right.
Jus Soli:
In "jus soli" countries the nexus recognized by the law is that between the child and the location of birth. The place of birth alone qualifies the child to automatically receive that country's citizenship, normally irrespective of the citizenship or nationality of the parents when the child is born.
The Wisdom of the American Founding Fathers:
The founding fathers of the United States carried on this tradition of adding "jus sanguinis" provisions to the basic "jus soli" citizenship legislation. They knew that U.S. citizens were going to be living and establishing families outside of the United States. To protect the rights of such children and promote the integrity of their families the First Congress in 1790 decided that U.S. citizenship would be automatically acquired at birth by any child born abroad to a U.S. citizen father, provided only that the father had previously "had a residence" in the United States. For the following 150 years, a U.S. citizen father could transmit citizenship to a child born abroad by meeting this very simple requirement. This same rule was subsequently extended to U.S. citizen mothers in 1934.
A very interesting read. Jus Soli is a common law principle that is apprently derived from English Common Law which is a cornerstone of US law.
Place of birth gives you citizenship. (It is almost feudal in the sense that you are tied to the land and the land is tied to you.) Given that place of birth has been one of the two essential ways to gain citizenship since the first Congress of the current US Constitution I think that arguably anyone born in the US has a right to citizenship/nationality under the US Constitution. Elsewhere in this article the author discusses that the US has been a signatory of UN conventions that establish that all people have a right to both Nationality and citizenship. Given that we have been somewhat inconsistent in our compliance with these treaties it still points to the idea that by adopting these treaties in many ways we have adopted them as part of our own laws under the constitution. As to the Fourteenth and Fifteenth amendments these were the reconstruction amendments that laid out civil rights for emancipated slaves but it is my understanding that historically these amendments have been used fairly freely by the courts to expand civil rights for all people in the US NOT as a basis for limiting civil and legal rights. As I said before, I think that arguably
citizenship by place of birth is a Constitutional right dating to the earliest days of our country and that all laws passed since that time as well as implementing regulations promulgated by the executive branch have operated from that precept. (Regulations are an interpretation of law by the executive branch that ultimately do have the force of law.) Congress may try to redefine this method of attaining citizenship but I think that the law would be found both unconstitutional and unenforcable in the federal courts.
See United States vs. Wong Kim Ark (1898):
The court ruled, in a 6-2 decision, that Wong Kim Ark was in fact a U.S. citizen, and
that the United States government could not deny citizenship to anyone born in the United States — even children of foreigners.
The 14th Amendment's citizenship clause, according to the court's majority, had to be interpreted in light of English common law tradition that had excluded from citizenship at birth only two classes of people: (1) children born to foreign diplomats, and (2) children born to enemy forces engaged in hostile occupation of the country's territory. The majority held that the "subject to the jurisdiction" phrase in the 14th Amendment specifically encompassed these conditions (plus a third condition, namely, that
Indian tribes were not considered subject to U.S. jurisdiction
[4]) — and that since none of these conditions applied to Wong's situation, Wong was a U.S. citizen, regardless of the fact that his parents were not U.S. citizens (and were, in fact, ineligible ever to become U.S. citizens because of the Chinese Exclusion Act).
See Natural Born Citizen:
In the
United States, a person is considered to be born a
citizen either due to place of birth within U.S. territorial jurisdiction (
jus soli) or through descent from a U.S. citizen (
jus sanguinis), or through some combination of those two elements.
This decision has been revisited on several occasions and the court has upheld it each time.
Would you like to comment?
