New Flophouse Address:

You will find all the posts, comments, and reading lists (old and some new ones I just published) here:

Tuesday, January 15, 2013

The Sovereign Citizen

Patrick Weil has a new book out called The Sovereign Citizen.  My blogging confrère, Arun of Arun With a View, sent me a note a few weeks back saying that it was available.  I ordered it tout de suite and I finished reading it over the weekend.  This is one to add to the Flophouse Citizenship and International Migration Reading List.  All of Weil's books are brilliant and this one is no exception.

The topic of the book is the un-making of American citizens in the 20th century.  Two terms to know:  Denationalization which is the stripping of birthright citizenship from a citizen who obtained it through jus soli or jus sanguinis;  and denaturalization, the stripping of citizenship from those who obtained it through naturalization.

Citizenship for both types of citizens used to be conditional.  There were (and still are) acts that a person could commit, or sometimes even beliefs one could hold, that could get an individual denationalized/denaturalized faster than you can say "Emma Goldman. "  Some of them were: service in a foreign military, voting in a foreign election, marriage to a foreigner, residence abroad, membership in a blacklisted organization like the Communist party,  lying on a naturalization application, and crimes against humanity.

How common was this?  In the 20th century:  "The Soviet Union revoked the citizenship of 1.5 million individuals.  The Nazi regime denaturalized forty thousand people and revoked the citizenship of another forty thousand native-born citizens.  In France, between 1940 and 1944, the Vichy regime denaturalized fifteen thousand people and stripped the citizenship of five hundred native-born French nationals."

In Europe this was primarily occurred during the period of the two World Wars and had to do with states' reactions to that sanguinary conflict.  As for the United States of America however it all too often concerned individuals doing things that were considered "un-American."  Clearly it was (and still is) much safer to be a birthright citizen as opposed to a naturalized one.  Between 1907 and 1972 over 22,000 naturalized American citizens were stripped of their American citizenship.

Today it is very rare for any U.S. citizen to lose his or her citizenship.  It still happens but since the 1970's it is only those who have lied on their naturalization applications or committed war crimes who are subject to denaturalization.  Birthright citizen denationalizations are non-existent in our time.

How did that happen?  Weil documents the denationalization/denaturalization activities of the U.S. government in the first part of the 20th century and show how case by case in the latter part of the same century the U.S. Supreme Court made decisions that severely restricted the ability of the U.S. government to take citizenship away from any U.S. citizen.  In ruling after ruling all the old conditions on citizenship were swept away and today about the only way a birthright (jus soli or jus sanguinis) U.S. can lose that "right to have rights" is by voluntarily relinquishing or renouncing it.

Weil argues convincingly that this change came about not because of news laws but because the Court formulated a new and very unique conception of the origins of citizenship.  U.S. citizenship is derived from the Constitution of the United States of America (The Fourteenth Amendment), not from the U.S. Congress or government and certainly not from the changing winds of American public opinion.  In the decision to reverse Perez vs. Brownell the court wrote:
"We hold that the Fourteenth Amendment was designed to, and does, protect every citizen of this Nation, whatever his creed, color or race.  Our holding does not do more than to give to this citizen that which is his own, a constitutional right to remain a citizen in a free country unless he voluntarily relinquishes that citizenship."
Under the Constitution the citizen is sovereign here.  Not the state which has no right to strip an American citizen of his citizenship and his right to have rights.

How does this novel conception of citizenship play out in a globalized world?  There are some issues around U.S. citizenship that are of critical importance today.  One concerns the rights of American citizens accused of committing acts of terrorism and their right to due process under American law.  The Obama administration has had American citizens killed in foreign countries without going through the courts and it defends its right to do so if such citizens pose "an imminent threat of violent attack."  Hard to see how the U.S. government can get away with this argument though thus far it has.

The other issue is an open sore in the immigration debate in the United States and has to do with the children of undocumented aliens in the U.S.  These children are, under the Fourteenth Amendment, birthright citizens of the U.S.  However, there is no end it seems to efforts by U.S. lawmakers to strip these children of their birthright under the U.S. Constitution.  Hard to see how any of these effort would even come to fruition and they poison the discussion over immigration in the U.S. with serious consequences for the nation.

Patrick Weil talks about both of these cases.  I would like to add a third: "Accidental Americans."  These are people who have U.S. citizen by right of blood or birth on American soil but who are unknown to the U.S. government and who very often do not know themselves that they are U.S. citizens.  Under the extra-territorial U.S. legislation called FATCA (Foreign Account Tax Compliance Act) which requires foreign banks to report to the IRS (or the local government) those individuals that the U.S. considers to be their citizens, these Americans abroad (known and unknown) are about to be revealed.  These citizens could number in the hundreds of thousands.  There are several unintended consequences to this:

The Security of U.S. Citizens Abroad:  It is a bit scary to think that lists of American citizens (complete with addresses and other identifying information) living in a country will be compiled by private entities (not governments). Depending on the country these lists could be made public and put American citizens in peril if they happen to be living in places where the United States is not loved.

Increase in the Number of U.S. Citizens in the World:  Some people, when informed by their banks, that they are U.S. citizens, will find this to be a pleasant surprise.  They will ask for and get U.S. passports.  Some surely will exercise their right to move to the U.S. Those who don't will nevertheless now understand that they are U.S. citizens and have a right (albeit limited) to the protection of the United States wherever they happen to be.  That is a huge responsibility.  And there are so many questions that cannot be answered today.  How many citizens will the U.S. discover as a result of FATCA?  What will be the impact of their being "outed" as citizens of a foreign power in the countries where they live?  What is the impact on U.S. embassies and consulates?  No one really knows.

Conflicts of Sovereignty:  Some will surely protest being told that they are U.S. citizens especially if it causes them trouble:  denial of banking services, for example, or the imposition of taxation.  To what extent will these people refuse to accept their status as dual citizens?  How many will ask their other country of citizenship for relief?  How will the U.S. and other countries resolve this?   Will there be cases, for example, brought before the European Court of Human Rights?  Will the EU recognize the United States' unqualified jus soli citizenship transmission as valid for those whose only attachment to the U.S. was to be born there and accept U.S. sovereignty over such persons?  Again, no one really knows how this will play out.

One last comment.  As an American abroad who has committed two acts that would have resulted in my being stripped of my U.S. citizenship in an earlier era (marriage to a foreigner and long-term residence in a foreign country) I was deeply grateful that the U.S. changed the rules so that I didn't have to live in fear of being expatriated against my wishes.  There was even a time when I was so uncertain about U.S. rules governing dual citizenship that I was very reticent about asking for citizenship in my country of residence.  Even today when I talk with homelanders in the United States about my life as an American abroad, I encounter people who in no uncertain terms tell me that I should have lost my citizenship long ago.

Good to know that it isn't up to them.

And here is a fine interview with Patrick Weil about Sovereign Citizen. 

The Sovereign Citizen par CentreHistoireSociale


Rosy the Riveter said...

Another excellent post, Victoria. You certainly have a lot of patience to be wading through all this, then sharing it with us. I guess the bottom line is that citizenship is now stuck on you like superglue, and you can't peel it off. Some might say "Well, you seem to want the advantages but not the inconveniences... to shed it like snake's skin when you decide you don't want it anymore". Perhaps. But what about states taking advantage of the situation to commit what are possibly human rights violations by confiscating property well beyond the reasonable ?

Victoria FERAUGE said...

@Rosy, No hardship here. Weil is always a great read.

To the folks who accuse people of not liking the responsibilities attached to citizenship, well, I'd answer that the vast majority of us are citizens of countries simply by default. Our consent was never requested, nor it is even required.

No one has any control over who their parent's are or where they were born. This automatic "opt in" is very convenient but where it creates "involuntary citizens" then it becomes a problem.

From what I've seen a lot of countries understand this and offer a fairly simple procedure for relinquishment (the one common requirement is having another nationality).

The U.S. does not and I think that's a scandal. Since when do healthy democracies need to hold its citizens captive?

Blogger said...
This comment has been removed by a blog administrator.