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Tuesday, August 20, 2013

Ted Cruz: Birthright Citizenship is Not Voluntary

There are many misconceptions about how citizenship works but one of the most pernicious is that citizenship is always voluntary.

 The most parsimonious definition of the term is "membership in a political community."  Since most of us live in democracies these days we like to think of citizenship as an association that we choose freely whether we stay in our country of citizenship all our lives or move outside its borders temporarily or permanently.

Nothing could be farther from the truth.  Birthright citizenship is ascriptive.  This means that human beings are basically sorted into nation-states based on criteria that they have no control over:  place of birth (jus soli) or bloodline (jus sanguinis).  This sorting occurs at birth and the status of citizen follows that person for a lifetime unless he or she takes on another citizenship and formally renounces.

Different nation states have different rules for how they define their citizenry - transmission by jus soli, for example, may be limited in one country and completely open in another - but the essential fact we all should grasp is that it is the state that does the sorting, not the individual.
This distinguishes the state from most other forms of human association, including the family, which is founded upon a voluntary act - marriage.  It also flies in the face of the modern state's own constitutive ideology of contract and consent, articulated in the political philosophy from Hobbes to Rousseau.  (Christian Joppke in Citizenship and Immigration).
It is a prerogative that states guard jealously.  If a French, Mexican, Chinese citizen moves to the U.S. and decides to become a U.S. citizen and does so by swearing the Oath of Allegiance:
"I hereby declare, on oath, that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen; that I will support and defend the Constitution and laws of the United States of America against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I will bear arms on behalf of the United States when required by the law; that I will perform noncombatant service in the Armed Forces of the United States when required by the law; that I will perform work of national importance under civilian direction when required by the law; and that I take this obligation freely without any mental reservation or purpose of evasion; so help me God."

We should all understand that this "renunciation" is not at all valid from the perspective of the sending country.  France, China and Mexico will continue to see this person as legally "one of us" and the new American citizen will still have formal citizenship status in that state until he goes through some sort of renunciation/relinquishment process.

The U.S. government itself does exactly the same thing.  An American who takes on British citizenship and swears an oath to the Crown does not lose American citizenship automatically - he or she will only lose US citizenship by informing the US government that he took on British citizenship with the intent to relinquish US citizenship.  If he does nothing then he is a dual and is claimed by both.

Furthermore since so many nation-states today have mixed citizenship transmission regimes (jus soli AND jus sanguinis) the original state may claim the children (and sometimes even the grand-children) of the emigrant even if they do not live in the home country of their parents, may not speak the language, and have no other ties to the original state other than blood.

This state of affairs has been exacerbated greatly by international migration and there are some serious consequences to this clash between state citizenship law and globalization.

The first is obvious - the dramatic increase of dual nationality.  In fact, we are entering an era where it is probably more accurate to say "plural nationality" since it is becoming more and more common to see children with 3 or more passports.

Another is that citizenship as status no longer correlates precisely with citizenship as identity.  Just because someone has a U.S. passport does not mean that he feels American or has any real ties to that country.  For him it may simply be a travel document that is required if he wishes to visit the United States - be aware that it is US law that all US citizens must enter the US with a US passport even if the person does not consider himself to be an American.  That, I think, shows very clearly that citizenship as status is not up to the individual but is decided by the state in question.

In fact, formal citizenship status in a second state may come as a complete surprise to the person concerned.  A second-generation immigrant may be completely unaware that he is, in fact, a dual national.   In countries with large numbers of immigrants like the U.S., Canada, France and Australia, a person born to immigrant parents or grand-parents may be completely oblivious to the fact that he is (or could be) a formal citizen of one or more other countries.

For countries of immigration this is a serious issue that they prefer (for now) to ignore.  As citizens of another state it is much easier for the children or grandchildren of immigrants to reverse migrate back to the original home country.  In the case of the EU, the possibility of obtaining a passport that opens the doors to 27+ states is very very attractive.

Sometimes the revelation that a person is in fact an involuntary dual citizen is an unwelcome bit of news.  Since citizenship as status and citizenship as identity are seen as the same thing in many places, this status can lead to suspicion when it is revealed.  This is especially true when it concerns a public figure - a politician, a government official, an intellectual, a leader of industry or a much-admired entrepreneur.  Telling my French family that Anne Sinclair was an American evoked some very strong emotions.

Something very similar has happened recently in the American political area.  The Texas senator Ted Cruz was recently "outed" as a dual citizen of Canada and the U.S.  From the Dallas News:
"Born in Canada to an American mother, Ted Cruz became an instant U.S. citizen. But under Canadian law, he also became a citizen of that country the moment he was born.
Unless the Texas Republican senator formally renounces that citizenship, he will remain a citizen of both countries, legal experts say."
Does this mean that Senator Cruz is one of those "anchor babies" that politicians love to rail against?  Was his American mother a "birth tourist"?  Inquiring minds want to know.

What is clear is that his status as a dual will have an impact on his political career in the U.S.  And that is a bit unfair.  Ted Cruz didn't choose to be Canadian - he is an "accidental Canadian".  In fact, he has made it very clear that he considers himself to be an American.  Well, that's fine but his assertion of identity does nothing to change his citizenship status because it's not up to him.  He has birthright citizenship from two countries - birth, not choice, made him a dual citizen and that is not any of his doing.  And now he must go through the formal process to renounce if he wishes to shed that birthright.  That's just the way it works.

Personally, I find that there is something fundamentally wrong in the way birthright citizenship  "works" in the 21st century.  It's terrible for democracy since it makes "membership in a political community" an inherited status and leads to an aristocracy - something that should have no place in a democratic nation-state.  In other cases it leads to the conferring of citizenship against the will of the person concerned - where is the explicit consent here?  And it has real consequences (some of them very negative) for people caught entirely against their will in a state's net.  

Allison Christian's recent post, Here is the Only Reason Ted Cruz's Citizenship is Interesting, eloquently explains how  involuntary citizenship transmission methods coupled with the obligations demanded by modern states of citizenship have terrible consequences for more and more people in today's globalized world.

My firmly held belief is  that the conferring of citizenship at birth is one traditional prerogative of the nation-state that should be wrested out of their hands and buried deep.  
"But, it is plain, governments themselves understand it otherwise; they claim no power over the son, because of that they had over the father; nor look on children as being their subjects, by their fathers being so. If a subject of England have a child, by an English woman in France, whose subject is he? Not the king of England's; for he must have leave to be admitted to the privileges of it: nor the king of France's; for how then has his father a liberty to bring him away, and breed him as he pleases? and who ever was judged as a traytor or deserter, if he left, or warred against a country, for being barely born in it of parents that were aliens there? It is plain then, by the practice of governments themselves, as well as by the law of right reason, that a child is born a subject of no country or government." (Locke, Second Treatise of Civil Government.)"
I believe that what Locke wrote in 1690 is just as pertinent in 2013.  Jus sanguinis and jus soli, if conferred without consent, are incompatible with democracy - it is the "consent of the governed" that is the root of legitimate political authority in today's world, is it not?  These citizenship transmission practices --however convenient  and useful (dare I say lucrative?) they are for the state-  should be ended.  

This would mean:  no more aristocracies made up of birthright citizens;   no more tyranny of birthright citizens over the naturalized and immigrants;  and no citizenship without consent.  Ever.


Allison said...

Two thoughts: first, the implications of your proposal are difficult though: what should replace birthright citizenship? Has any of the scholarship on citizenship proposed a viable alternative? And second, isn't it the obligations flowing from citizenship, and not the citizenship itself, that creates the problem you wish to solve?

On the first point, Shachar proposes imposing a tax on inherited citizenship as a valuable asset; others propose migration law reforms to allow more changes in citizenship. But typically the focus is on how birthright citizenship in rich countries tends to exclude those without the birthright in an unjust manner, perpetuating injustice without end. It is difficult to reverse the proposition and suggest that birthright citizenship in rich countries could itself be a burden--difficult because generally, it is not intrinsically a burden.

Thus the second point: the major problem you're observing about birthright citizenship is not that nations impose it unilaterally, but that the US, alone in the world, has then imposed heavy financial and informational obligations based solely upon it. These obligations have become all out of proportion for those not physically resident in America. But it is the obligations that are the burden, not the citizenship itself. The US has written the law in such a way that you can't get rid of the obligations without getting rid of the status: in other words you cannot vote with your feet. Other democracies have generally allowed voting with your feet: they typically release their grip on citizens who are not physically resident in the territory. Hence no grand lists of people shedding their citizenship in other democracies.

Now you might observe that in Cruz's view apparently his Canadian citizenship has suddenly become intrinsically burdensome. But this is clearly because of American politics and perceptions--it was never a burden to him before this week, it seems. And why is that? It is of course because Canada doesn't impose obligations on its citizens solely on the basis of this status.

Thus it apparently never occurred to Sen. Cruz to think about what it means to be a Canadian citizen: his parents voted with their feet on his behalf, and Canada did not object by continuing to impose financial or informational obligations on him once he was physically out of the territory. But had his parents voted with their feet to keep him in Canada, the US would not have released him from these obligations.

That seems patently unjust, but I do to quarrel with the birthright; I quarrel with the leveraging of birthright to inappropriately extract tribute from persons who have voted with their feet to leave the territory. This appears to be a blatant violation of the foundational democratic principles that define the US as a nation-state.

Victoria FERAUGE said...

Allison, thank you so much for your comment and for your post which really does make the consequences of birthright citizenship crystal clear.

As a practical matter I agree that it would be very hard to replace birthright citizenship but there are serious proposals for alternative methods. Dora Kostakopoulou, for example, bases her "anational citizenship" on domicile: birth, choice and association. I disagree with the inclusion of birth but the other two could work.

Other ideas I've had are things like an explicit acceptance of citizenship by all in all countries. France has something along these lines - my daughter when they became adults were asked to go down and register at the Mayor's office. Only flaw with this is that not everyone does this and to my knowledge a French national born overseas is not required to do this.

Another is "no questions asked" renunciation. It shouldn't cost money to renounce, nor should someone be required to explain themselves at length to a government official or file all that paperwork to get free.

I respectfully disagree with you about the nature of the problem. All of those things you mention that are imposed by the US could perfectly well be imposed by any other country at any time. It is within the right of other countries to tax their overseas citizens or force them into the military and so on. The fact that they don't do this is a choice on their part (pretty tough to enforce when the person is living elsewhere).

What is truly scary about FATCA is that the US is putting into place a world information exchange system that will make it FEASIBLE for other countries to do what the US does. I fully expect to see other countries revising their tax laws to take advantage of this new opportunity.

What is hysterically funny about this is the US is a country of immigration and terribly vulnerable to this. They do not seem to have figured out that if the US can tax its citizens in Europe or South American or Asia, then all those regions and countries can turn right around and tax their citizens in the United States. And given how birthright citizenship works an awful lot of Americans might end up with an unexpected tax bill from their parent's or grandparent's country of origin. I wonder what the US would do under such circumstances?

So for me THE problem is citizenship without consent that is part and parcel of birthright citizenship - not the particular obligations that states impose which are arbitrary (but perfectly legitimate) and all too often are not in the interest of individuals.

Allison said...

Fair enough: it is in the defining of citizenship that the state creates consequences thereof, so unless you change the formula for assigning citizenship, you cannot escape the potential for states to over-claim on this basis.

Victoria FERAUGE said...

How about we talk about it over coffee?

(I'm could be wrong - happens a lot even - and I am always delighted to have someone show me another way to look at it :-)

Tim said...

One area of international law and scholarship were they seems to be some consensus in this area is the need to reduce stateless(Note: this doesn't apply to the US and its normal aloofness). Thus many countries try to have catch-all clauses in their nationality laws to make everyone at least has one nationality some place. However, there has been a disturbing pattern where people born in Canada before 1947 or born to "Canadian" parents outside Canada(the entry into force of independent Canadian citizenship) are not able to obtain Canadian citizenship but are able to obtain British citizenship(Thus they are not stateless). But for all intensive purposes they are Canadian not British and modern day Canada and Britain are distinct and different countries. Once accepting to British citizenship in theory they can apply for Canadian permanent residency and then citizenship but again you are talking about people in their 60s and 70s that spent their entire lives in Canada.

Tim said...

The other thing I will mention is that the odds are incredibly low that international law and treaty would ever be able to be used to restrict of "right" under the US Constitution(which birthright citizenship is). It is not at all clear whether the US Supreme Court would ever allow the legislative and executive branches to successfully ratify such a treaty.

Ellen Lebelle said...

If you do away with birthright citizenship, then what happens to children before they are of an age to decide anything? I've seen France dealing with citizenship issues, and the Front National taking the administration to task, over whether children born to non-French parents can claim to be French, or not, and if so, what age, how much time must they spend here before doing so, how many years of school, and so on.
I agree with Allison, it is not the citizenship that is the problem, it is the current burden of obligations of US citizenship, which have only recently become so burdensome (first the tax declaration, then the FBAR, then the penalties for not filing, now FATCA).
When I chose not to refuse French nationality when I married a Frenchman (back in 1971, when they gave it to you), I was, in effect, saying that I did not want to relinquish my US citizenship. I was not requesting another nationality. When I declared my children at the US embassy, I was imposing my nationality on them in addition to their native French ID. They grew up happy with that. And as they became adults, we all went through the annual ritual of sending in our declarations with no tax due and our FBARS together.
It is the discrimination (in the US) as a US citizen living in another country and (in France) just being a US person, that makes me regret those decisions I made long ago.
So, making citizenship a decision matter, does not solve the problem. It's the changing legal environment that is the problem. And legislature can change that. And only by remaining a US citizen can we vote and lobby our representatives for such change.

Anonymous said...

Hello Victoria.
Very interesting.
Let me play the devil's advocate and ask why any nation state would accept that one of its citizens also have a membership card in a competing club? Can you have it both ways? Can you really have an allegiance to two nations? And for that matter, is allegiance important?

Perhaps one day citizenship and hey, who knows, maybe even religion, will be a remnant of the past. We will have moved on to other, different codes that give us a sense of purpose, meaning and hope.

Anonymous said...

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Victoria FERAUGE said...

That's a good question. Can a person have allegiance to more than one country? I'd say so. If we replace "allegiance" with "love" or "loyalty" does that make a difference? Love shared is not love halved. As for loyalty very few of us are only loyal to one thing. We must manage all our loyalties, our connections, our loves every day. Family, religion, professional life. Not easy but we all do it. And if we had to rank them in order of importance would allegiance to the nation-state take precedence over our families, for example?

For the most part the things we are loyal to and love are not predatory. They do not require the extinction of other loyalties and loves. Are states the exception to this? If so, why?

Victoria FERAUGE said...

Tim, you're right and potential statelessness still has an impact on how nation-states treat renunciants. I understand that many states will not allow a citizen to renounce unless he or she already has another citizenship in hand. This is a legacy of the tumultuous 20th century when people were deprived of citizenship for reasons entirely beyond their control and there were large numbers of unclaimed people with nowhere to go.

So here are my questions: Is that still true in the 21st century? Statelessness has been reduced but it still exists. And yet there is at least person who has posted here that he is effectively stateless and that causes him nothing more than minor inconvenience.

Are some people coming to the conclusion that not having a state at all is the ultimate freedom? J.C. Scott (The Art of Not Being Governed) contends that is not a new idea - the 'stateless by choice" (peasants, small farmers and the like rejecting state authority) have always existed.

Is that old idea workable in a modern context?

Sally said...

Germany won't let non-EU citizens become German until they get rid of their old citizenship first. (There's an exception for citizens of countries like Turkey that don't allow renunciation.) The US State Department doesn't want you to become stateless, which is nice of them actually. (I had a stateless friend once. Having no passport is far worse than the obligations of US citizenship!)

So the procedure of going from US to German citizenship is this: 1 - apply for German citizenship and fulfill all formal requirement, 2 - Germans give you a paper saying you can become a citizen once you provide an official translation of your certificate of loss of nationality, CLN, 3 - take the German paper with you to the US consulate and renounce your citizenship and turn in your passport, 4 - you get a paper from the consulate saying that you were there and what you did (I carried that around instead of my passport), 5 - wait for the arrival of the CLN and when it comes get it translated by a certified translator 6 - take the CLN and translation back to the German office and get your citizenship.

A broken man on a Halifax pier said...

The US is unique in allowing you to renounce your only citizenship - there are a handful of well-publicised examples of it actually happening. In practice there's consular pushback, I think.

Canada is more typical in not letting you renounce unless you can prove that you either have another citizenship or will in the near future (the Danes have an awkward setup in which they won't naturalize you unless you can prove you've shed your previous citizenships).

I'm not an immigration lawyer, but my darker fear for Americans who renounce and make themselves stateless is that the country they're living in could deport them to the U.S., as the closest thing they have to a country, and that the U.S., for lack of any better idea, would put them in the immigration detention system with no way out, there being nowhere to deport them to.