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Wednesday, June 8, 2011

Pledging Allegiance: U.S. Debate Over The Fourteenth Amendment

There are other citizenship debates going on in the U.S. parallel to the debate on dual nationality in France.  One concerns the Fourteenth Amendment to the U.S. Constitution.  Like France the debate was launched at the initiative of the right-wing party.

The Fourteenth Amendment to the U.S. Constitution was passed in 1866 after the American Civil War and became law in 1868.  The full text contains no fewer than 5 sections but it is the first sentence in the first section that is causing all the fuss:
Section. 1. 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. 
That is what is says but the debate is over what it means and how it should be applied.  It has been broadly interpreted and applied by U.S. courts as granting citizenship by jus soli to all persons born in the U.S. even if their mothers were temporary residents of the U.S. or they were living in the U.S. illegally at the time of the birth.   If you consider that there are between 12 and 20 million undocumented residents, millions of legal residents and tens of millions of tourists, students, expatriated businessmen, artists and others passing through the United States every year, and if you assume that roughly half of them are women, that's a lot of potential jus soli citizens.  Let's look at a few of the arguments for and against:

Proponents of changing the law argue that the Fourteenth Amendment was never meant to grant U.S. citizenship to all persons simply because they were born in the U.S. The original intent was to ensure that all African-Americans born in the U.S. under slavery were citizens.   Undocumented and documented residents, tourists and children of ambassadors, have citizenship in and allegiance to another country and cannot be considered to be fully "subject to the jurisdiction" of the United States.  One website I saw cites Elk versus Wilkins as the basis for this interpretation which is a rather unfortunate example because in this case the court ruled in 1884 that a Native American born on a reservation was not subject to U.S. jurisdiction and was therefore not a citizen.

Supporters of the broad interpretation of the Fourteenth Amendment point out that in the case US against Wong Kim Ark the U.S. Supreme Court clearly said:
A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution.
Much hinges on the meaning of the words "subject to the jurisdiction." Does this term mean that all persons living in the U.S. owing allegiance and with rights and responsibilities to a foreign state are not subject to the jurisdiction of the U.S.? That might imply that the U.S. has no or limited jurisdiction over legal residents, undocumented aliens and perhaps even dual nationals living on U.S. soil. That seems rather silly and I doubt many Americans or the U.S. courts would agree with that interpretation. Or does "subject to the jurisdiction" simply define a category of persons like ambassadors or diplomats or government officials who are in fact clearly not under U.S. jurisdiction and cannot be tried in U.S. courts?  Opinions vary.

In my opinion both sides have good arguments and it's a debate worth having. To those who argue that the entire debate is ridiculous, I think back to the Frenchman I met in the U.S. Embassy who clearly did not wish to be considered an American citizen just because he was born in the U.S.

Which brings up what I personally find interesting about this debate.  All parties are studiously ignoring (or perhaps it would not even occur to them to think about) the whole question of the validity of what I have called on this blog "involuntary citizenship." This is where citizenship is simply granted to an individual through factors completely beyond his or her control and it includes both citizenship through blood (jus sanguinis) as well as citizenship by place of birth (jus soli). Neither requires the consent of the individual concerned - through an accident of birth, the state simply says that you are or are not a citizen and that individual keeps this citizenship all his life unless he or she decides to renounce it. And that seems a bit odd when you really think about it.

My question is this: is it unreasonable to consider that citizenship in a democratic nation-state should be based on explicit consent? That a minor child cannot be said to have pledged allegiance to any state? That regardless of the citizenship of the parents or place of birth, he or she is not a full citizen of any democratic nation until, as an adult, he or she consents to it?

That would really put the cat among the pigeons but it's something worth pondering as nation-states argue the finer points of jus soli and jus sanguinis.


Anonymous said...

It seems to me that your point about "involuntary citizenship" is very valid. In fact I believe France follows this very principle in certain cases - I'm a French citizen married to an American, and I have been told that since our children were born abroad they would be allowed to "choose" whether or not to retain their French citizenship when they turn 18. Seems quite sensible to me.

Victoria FERAUGE said...

Thank you for stopping by and for your comment. I agree - that does seem very wise and quite reasonable.

It also reminded me of something I came across when I was reading Patrick Weil's book Qu'est-ce qu'un Français? Between 1801 and 1803 there was argument between Bonaparte and Tronchet, the former favoring jus soli and the latter arguing for jus sanguinis. This paragraph from Weil's book summarizes their respective positions:

"Bonaparte...propose tout simplement de déclarer que: 'Tout individu né en France est français'.

To which Tronchet replied: "l'on ne peut donner au fils d'un étranger la qualité de Français sans qu'il l'accepte."

Bonaparte lost the argument and the result was that Civil Code of 1803 said that: "Dorénavant, on n'est français de naissance que si l'on est né d'un père français, en France ou à l'étranger."

Fascinating. :-)