Today’s post is from Stephen L. Hall. It’s a great read! Thank you Mr. Hall.
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Much controversy has been manufactured of late regarding one of the very few restrictions upon the office of the Presidency of the United States, in particular a certain phrase requiring any candidate to be a natural-born Citizen. A certain billionaire, who shall not be named, implanted a silly notion in a gullible public that a person born in a foreign country, or both of whose parents are not U.S. Citizens, is not a natural-born Citizen.
What does the Constitution actually say?
“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.” – Section, Article II, U.S. Constitution.
Obviously the second phrase referencing those Citizens who became such not by birth but by the very creation of the nation. George Washington was not and could not be a natural-born citizen, nor were his near successors. Notice the last qualification, which is most often overlooked, that even a natural-born citizen has to have been a resident within the country for at least fourteen of those thirty-five years.
Now, does that mean the fourteen years immediately preceding his election to office or merely fourteen years sometime in his life? Could a man be reared for the first fourteen years of his life in America then be taken away by his parents come back to the United States and be immediately elected President? An interesting debate I shall leave for others to ponder at their leisure as their personal curiosity may incline.
As one of our current candidates for the Office of President was born to parents who were citizens of different countries, the United States and Canada, regardless of where said candidate was born, the larger question of citizenship should be investigated.
The birthplace of democracy was Athens and, though we are not a democracy, the Athenian concept of citizenship is crucial to understanding the development of our definition and understanding of citizenship in the English legal context. As Athens became a prominent city-state in ancient Hellenic culture, and upon the creation of their own unique form of government but more to the present discussion, their definition of citizenship.
Most are familiar with the Athenian democracy as a direct democracy, somewhat. “Citizens probably accounted for 10-20% of the polis population, and of these it has been estimated that only 3,000 or so people actively participated in politics.”
Contrary to most people’s conception, residing in Athens did not make one a citizen. Being born of a parent who was an Athenian did not make one a citizen either. In order to be an Athenian citizen, both of your parents had to be Athenian citizens. So if an Athenian citizen married anyone other than another Athenian citizen, then none of their children would be citizens.
Other societies defined citizenship also through parentage, but usually less restrictively. Religion provides more familiar examples. Catholics consider that if the father of a child is Catholic then the child is considered Catholic. So Catholicism is inherited but only by lineal descent of the father. In Protestant terms, you are only a Protestant if, upon attaining a certain age, you chose to be Protestant. No person is born Protestant. Religion as a nation, yields only naturalized Protestants, and virtually all natural-born Catholics.
Which brings us to an opposite of the Athenian citizenship, the Roman citizenship. In the Roman empire, if either parent was a Roman citizen, then the children were Roman citizens. It was said that if a person had but a single drop of Roman blood in him, then he was Roman.
That same line would come up in American history in relation to the definition of who was black and for the very same reason, that if a man had even a single drop of black blood in him, then he was black. It was repeatedly ascribed by black leaders as a principle held by racist white men, but I’ve never been able to find where a white man ever used that definition. It was designed to get people of mixed heritage to identify as black and to deny any white part of their heritage; to inflate and grow the number of people who considered themselves as black.
The rule of Roman citizenship was designed to be inclusive so that as many people as possible would consider themselves Roman. The Athenian citizenship was designed to establish a sense of exclusivity and elitism. Rome was an empire where Latins made up only 10% of the empire; but Athens was a city-state consisting almost entirely of Hellenes.
So, back to America, the issue of citizenship confronts the children of illegal aliens through the reference of another Constitutional provision. The Fourteenth Amendment reads, in pertinent part, “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.” What is missing from this sentence is the natural-born description which people want to ascribe to claim that every person born in the U.S. is a citizen.
If you have listened to Mark Levin, he points out the qualifying phrase limits this automatic citizenship to those specifically subject to the jurisdiction thereof, and if the intent was to confer citizenship to everyone born in the U.S. then this phrase would simply have been omitted. This phrase has meaning therefore every person born in the U.S. is not automatically a citizen. There is no birthright citizenship.
How should we view citizenship? Backwards.
It is not the desire of the person to claim citizenship, because citizenship is not a right or commodity of the individual. Citizenship is a claim of the state upon the individual.
Looking first upon the birthright citizenship concept, let us reverse the normal situation. Imagine an American couple on vacation in Mexico, who give birth to a child. No one would be willing to say that Mexico can now seize upon this child as a Mexican citizen. How then could the U.S. seize upon a child of foreigners temporarily residing in the U.S., legally or illegally?
As Mr. Levin points out, only those subject to the jurisdiction of the U.S. for citizenship purposes could be the subject of citizenship. In law, a government may have jurisdiction for one purpose while not having jurisdiction for other purposes. A person my own residences in several states, but they may legally have only one domicile, or permanent home. Citizenship follows the same lines.
It is not merely the status of being within the country legally which confers citizenship jurisdiction upon the state, more is required. However a trespasser, a person illegally within the country, is unable under any circumstances to give to the state such jurisdiction.
Imagine a pregnant woman breaks into your home and gives birth to her child. Who would assert that the child so born is part of your household, a part of your family? A brother or sister to your own children? Such is the status of the child of an illegal trespasser to the country.
In addition to the necessary condition of those aliens who enter the country being of legal status, there is the matter of the intent of the parents of the child to permanently become part of the country. Using the previous analogy, what would be the status if a dinner guest invited into your home went into labour and gave birth? Again, no one would claim that such a child was part of your family.
A couple who immigrates, through legal channels with the intent of becoming a naturalized citizen, because they have formed the intent to make America their permanent home, a child born to such a couple would naturally be a citizen, as the parents are subject to the citizenship jurisdiction of the state.
However, a refugee couple, who intend to go back to their home are like the vacationers, they cannot confer upon their children citizenship. A refugee who has applied for permanent asylum becomes a different question. While courts would have to determine the individual status, the objective criteria are easily defined and quite clear.
It is not the mere presence of the birth, but the legal status combined with the intent of the parents which place the birth of the child within the jurisdiction of the state.
So we come back, finally, to our original situation where a citizen of this country gives birth in another country. In our present case, we have the mother of the child who beyond question is a citizen, who gives birth in a foreign land. There are two different aspects of this situation which have to be individually addressed so that the uninitiated can avoid confusion.
We, the people of the United States of America, are an inclusive people, like the Romans, and not an exclusive people, like the Athenians. It seems beyond question that our republic follows the Roman rule, that if either parent is an American, then the child of that American citizen is an American. It does not matter in the least the citizenship of the other parent.
The other question is the location of the birth and the intent of the permanent abode of the parents of the child. In the present case, I have heard no person claim that a certain candidate’s mother was in Canada with the intent to immigrate to Canada from the United States. Absent the objective intent to immigrate, there is no plausible reason to deny the citizenship of a child of a citizen temporarily abroad at the time of birth.
One final consideration is that of a child of parents of different citizenship, a modern problem of our own creation as once upon a time no country would recognize a marriage between citizens of different countries. Traditionally, differences of citizenship would be reconciled at the time of the nuptials, as marriage generally was considered to confer with it citizenship in that nation of the marriage ceremony. The idea that people would retain separate citizenship would have been laughable.
As our modern societies have recognized cross-citizenship marriages, the progeny of such a union are generally considered having dual citizenship until such time as they reach an age of maturity when they ought to be expected to decide their status for themselves. However, in the present case and under modern vagueness of the laws, we do not force such decisions as we ought. We are in no position to condemn a political candidate for the laxness and failure of clarity of our legal profession.
At least these are my assessments of the current situation, perhaps others can articulate and prove better principles of law than I. I shall consider any such suppositions.
