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Wednesday, January 15, 2014

Citizenship and Consent

Yesterday's CBC story about Carol Tapanila and her disabled son is very troubling but it is so much more than just a story about the unintended (and terrible) consequences of one extraterritorial law.

The story goes to the heart of some difficult questions about citizenship:  how it is conferred, the rights and responsibilities that go along with it, and the explicit versus implicit consent of the governed.

Citizenship is an ascribed individual status.  It is the relationship between the individual and the state that claims him or her.  A state will make that claim based on two things:  place of birth or lineage (the citizenship of the parents or grandparents).  Note that neither of these things are within the control of the individual.  We don't choose our parents or where we are born.  It simply isn't up to us.  And we simply can't be too self-congratulatory when we become adults for being an American or a French or a Chinese citizen because it was through no fault or merit of ours that we ended up in one citizenship box as opposed to another.  We are all "Accidental" citizens  whether it was through blood or place poker.  The exception to all this, of course, is when we, as adults, make a choice to be naturalized and voluntarily attach ourselves to another nation-state.

This automatic attachment has merits and demerits.  Conferring citizenship on every baby born in a particular territory makes for easier administration.  Provided that an individual can produce a breeder document, a birth certificate that says so and so was born in Topeka, the authorities don't have to ask too many questions about someone's status.  We can see the difference it makes when we look at citizenship by lineage where it often isn't taken for granted.  In this case the individual must prove it by providing multiple breeder documents - usually the parent's birth certificates, certificates of nationality or naturalization papers, but sometimes even the grandparents' proof of status (something my French husband learned when he applied for his French certificate of nationality).  It's just a lot more paperwork and behind the pile of paper there must be individuals qualified to process each one. Just imagine a world where every individual in a national territory had to prove that he or she actually has citizenship.  This would be a bureaucratic nightmare.

Nation-states also see their interests served here.  People are resources for the state.  They are potential taxpayers, workers, soldiers, bureaucrats and voters.  Generally speaking no state likes to see its population drop.  Whatever the domestic opposition is to immigration or social engineering, states pay close attention to demographics and will intervene if they don't like the citizenship stew they have been handed.  They have every interest in capturing the young and ensuring that there is a link because it is through that link that states hold people responsible for the duties and responsibilities that come with citizenship.

It is hard for the average person to see the demerits of such systems.  An individual born into a particular territory, and who spends his formative years under the benevolent eye of that state, will most likely take his citizenship for granted.  It becomes so much a part of his identity that he can't imagine a world where he wasn't French or American or Chinese.  It's not brainwashing, it's programming and it's very powerful.  Usually what happens is that the child goes through citizenship training as he grows up.  He's taught the language, the history, and the benefits and responsibilities that go along with membership in this particular political community.  The link exists as a simple matter of law the moment the child is born, but it takes years for the attachment to become reciprocal.   It cannot be taken for granted - a very young child has no conception of "democracy" or what it means to vote or serve his country.  The Constitution or the Charter or the Rights of Man are things he has to learn.  And until he learns can we really say that he is a citizen of any country?

If so, then at what point in time does he become a citizen?  When exactly does he or she give his explicit consent to this link between himself and the state?  In some countries it is clear because there is a process, a ritual, a rite of passage, that occurs when the child becomes an adult.  That child has to "opt in" (a little like Confirmation in the Catholic church). He must say or sign or do something to indicate that he accepts the deal and all the benefits and responsibilities that go along with citizenship status.

In other countries like the United States it works differently.  Consent is assumed when the child turns 18 and, no, it has nothing to do with getting a passport or registering to vote or signing up for the draft.  The new adult may do none of these things and yet still will be "opted in" automatically.  He may not even be aware that he is a U.S. citizen but that makes no difference.  Whether he knows it or not, he is "in" until he formally renounces that status.

This is the underlying problem Carol Tapanila's son and so many other Accidental Americans are confronted with today.  They have a status, U.S. citizenship, they did not choose - one that was conferred upon them without their explicit consent - but they are being held nonetheless to the duties and responsibilities of that status.  And I contend that there is something deeply deeply immoral about that and it both defies common sense and flies in the face of what it means to be a citizen of a democratic nation-state.

An Accidental American who did not know he was an American citizen, or one that grew up outside the U.S. where his citizenship training was, for the most part, training to be the citizen of another country, should not be subject to American laws he knew nothing about, and surely cannot be held to responsibilities he never agreed to assume.  The U.S. Declaration of Independence is clear that the American government (any government actually) rests on the "consent of the governed."   To maintain the fiction that one has accepted a status (consented) because nothing was said or done to indicate otherwise is absurd in so many areas but is, I would say, particularly nonsensical when it comes to citizenship and democracy.  It just doesn't make sense to include someone in a political community if he doesn't know he's a member or has reached his majority and doesn't want to be one.

How American citizenship is conferred is not going to change anytime soon - modifying jus soli would require changing the Constitution and that is not a simple matter.  But perhaps there is another way we could address this problem of "citizenship without consent" that would serve everyone a bit better than the current situation.

My proposal would be to have a process, a ritual, a ceremony that would require every American (not just those born or living abroad) to make an explicit choice to be an American.  Something that makes those rights and responsibilities crystal clear and asks each individual, "Do you accept them?"  (Not sure what would happen if they said "no" but I'm sure they'll figure it out.)  In the homeland this could perhaps raise awareness of the value of citizenship and make becoming part of this particular political community meaningful - an honest to God event in a person's life - just as the naturalization ceremony is meaningful and moving for so many immigrants.

As for those young Americans born or living abroad, it could be the same ceremony held at the local U.S. Embassy. Prior to the event some basic information about what it means to be American could be sent to them so they understand that there are rights and also responsibilities that go along with this status. Every effort should be made to make it informed consent.

Most importantly,  it would be their choice (not their parents or grandparents) to make that trek and to participate. If these proto-Americans choose not to do it, or cannot (like Carol's son), then that would be considered an "opt out" which means that they are not American citizens.  (And, yes, there will be situations where someone didn't get the word and those could be handled on a case by case basis). There are surely other problems with this that I can't see but the principle seems sound:
"We hold these truths to be self-evident, that all men are created equal, that they are endowed by their Creator with certain unalienable Rights, that among these are Life, Liberty and the pursuit of Happiness. That to secure these rights, Governments are instituted among Men, deriving their just Powers from the consent of the governed..." 


P. Moore said...

Excellent proposal...that would certainly be a more reasonable and just system.

Interesting that you included this quote "...all men are created equal, that they are endowed by their Creator with certain unalienable Rights...". I think that is something that most homelanders and US politicians forget. That is ALL men are created equal AND have certain unalienable rights. They often seem to think that only counts for US citizens, resident in the US. Even then we are watching a steady erosion of rights for those homelanders.

Catherine said...

I wonder how the world would shift if we all had to make that sort of decision? Feels like there is a novel in there.

A broken man on a Halifax pier said...

A couple of thoughts:

In practice there are two kinds of accidentals:

- People born in the US whose families don't otherwise have a connection to the country, like the many people in Canada who seem to have left at some point under the age of 5. Those people *can't* pass as Canadian at the border, and need a much easier route to shedding citizenship. I think this can be done under existing law, more or less, by interpreting ordinary civic acts like voting and applying for a passport as relinquishing, if the person wants them to be. Dropping the requirement to file five years of tax returns for uncovered expatriates taking advantage of the dual-citizen exeception would also help, while sparing the IRS a good deal of pointless busywork. (Can we hope for an 8854EZ?)

- People born outside the US who have a derivative claim to US citizenship through a USC parent. *In practice* (with all due respect to Carol's situation, which has unusual aspects) this really is an opt-in system as a practical matter, whatever the law may say.

I take your point about a ritual for latent citizens opting in to active citizenship. The problem, I suspect, is that it would acknowledge the shades of grey and ambiguities around citizenship, which to the official mind is cut and dried. It might have been helpful in my case - I left the US consulate in Toronto in 1993 with a brand new passport and no idea that I was supposed to a) start filing tax returns and b) register for the draft. Nobody pointed it out.

(Actually a co-worker with a similar profile to mine - raised in Canada, derivative citizenship through a USC parent - was later denied a student loan in California because he hadn't registered for the draft. He had no idea he was supposed to.)

Sauve said...

What if the States decided to collect their taxes based on the same dictum as the Federal government? There are only 7 States that do not have an income tax (Alaska, Florida, Nevada, South Dakota, Texas, Washington, Wyoming). Leaving aside their alternate sources of revenue and Federal aids they collect lets move on to imagining that the States demand taxes simply because of a lineage based system. That would mean I, being Texan, don't pay Texas taxes because 1) Texas doesn't have an income tax and 2) I own no property in Texas. Fortunately my mother was born in Texas as were her parents. So was my adopted father. But I married a man from California. I would then be an accidental Californian required to file an income tax report to California even though I still lived in Texas? How about the 3 children? They also, when of age, be required to file. One married a woman of South Carolina lineage, one married a man of California lineage, and one married a man of Kentucky heritage. Imagine the chaos. Then there are cities that have income taxes as well.

The founding fathers of the USA wanted voting to be based on property ownership. That is understandable as they owned the majority of property then. But they would have no one to fight for the revolution if they did not make attending a revolutionary war more enticing which was basing the right to vote on citizenship determined by birth, race, and gender. Perhaps, property could still be a way of determining taxes? Even that is arcane at present time.

In a sort of understanding, I agree with the USA that a universal tax code needs to be formulated. What I disagree with is that it be lineage based. Obviously it cannot be property based because too many people don't have property and while the costs are passed on, it would still be limited. Perhaps a system that takes into consideration of where you live and property tax region? It is only fair that a person who owns a $76,000,000.00 penthouse in NYC but lives in Russia pay a flat rate property tax to the USA for that property. It is also right that I, being Texan, should pay tax for the 1/2 acre property I would own in the Texas Hill Country, even though I am retired and living in France. Actually, regardless of where I live I should be paying a flat rate tax to that country for my personal wealth while I live there. I am in agreement with Margaret Thatcher (and I detested the woman) about everyone should pay taxes. I also believe that when a person is paying into anything they are more invested into it, there is a sense of duty and responsibility that it transferred to the individual. But I think it should be property based (as in hard property and soft property) and domicile based. Finally it should apply equally to businesses regardless of how large or small they are.

Sorry to have made such a long post.

Carol Tapanila said...

Victoria, I very much appreciate your covering my family’s case on your blog.

Part 1 of 2:

Something is wrong, if in the case of my son and any others like him, that person cannot renounce his/her own 'supposed' never-registered US citizenship as he/she does not have the requisite 'mental capacity'. Similarly, a person with dementia or a brain injury, for example, would also not understand the concept of citizenship and be able to take the renunciation actions themselves, with no help from others. Additionally, for those cases, the US Department of State states that a parent, a guardian or a trustee DOES NOT HAVE THE RIGHT to renounce on that person's behalf, even when deemed in their best interest, even with a court order.

As I was advised by the Washington, DC immigration / nationality lawyer I paid for clear direction:

quote: DOS persons he talked with have “sympathy” for such cases. However, the developmentally disabled person will have to have FULL understanding of what he’s doing; if any question of lack of comprehension and grasping meaning and importance of ramifications, they could NOT approve such a case. From DOS point of view, US citizenship is precious and they have therefore established fundamental requirements for “compelling reason”. Even though there is the risk that a person’s financial resources could run out before his/her life was over, they will never approve a renunciation for financial / economic reasons. DOS has NEVER had such a renunciation case approved due to “compelling circumstances”. unquote

Bottom line: “compelling reason” in their regulations is not helpful to my son’s case. I could sue – persons my lawyer talked with at DOS are SURE no one would ever win such a case as the courts view the discretionary action that DOS has would take precedence.

Carol Tapanila said...

Part 2 of 2:

My sense of common sense and morality tells me that if such a person cannot renounce or have someone renounce on his/her behalf, then they also do not have the ‘mental capacity’ to start and complete the process to prove to the US that they are US citizens and they should, again not have the help in decision or process from anyone else. i.e., My son could not do this. If my son cannot do this, will it then be my "foreign financial institution" (a CANADIAN bank) that determines whether or not he has a US indicia and can be denied Canadian registered accounts in the country he was born, Canada? What will be the identifying SSN or ITIN that bank will use to identify my son? Who is responsible here: the US for having law that entraps my son or Canada for signing an IGA that would waive his (and all other Canadian US Persons’) rights?

It is my contention that if any law exists like this one that ENTRAPS my son and others like him into US citizenship, someone did not thoroughly think through the implications it could have with FATCA with the combination of US citizenship-based taxation. Something is dreadfully wrong – no one should be entrapped into an extraneous citizenship not asked for. It should be an “opt in” rather than an “opt out”.

[ Just for the record, my son COULD more easily fly under the radar than some others as his Canadian passport identifies his place of birth as Calgary, AB, Canada. Not so easy for the “accidental American that shows a birthplace somewhere in the US (although never having lived there for any length of time), clearly Canadian, born to Canadian parents. I don’t want a “work-around” here; I want common sense and I want the fairness for all, which will not be the case when our “foreign” financial institutions start the hunt for those with US indicia. US indicia for some is more evident than US indicia for others! My son is identified on my own Foreign Bank Account Reports (FBAR) as I had to report all of my financial accounts to the US, including the ones I am the Holder of on behalf of my son, including his Canadian Registered Disability Savings Plan (RDSP), taxable in the US as a “foreign trust”. ]

Will some government officials somewhere have some common sense? Either give my son and others like him a way to renounce and be free of this “entrapment” (as any other US Persons Abroad can given enough time and money paid to US tax lawyers and accountants) or immediately change the heavy-hand of citizenship-based taxation law to that of the rest of the world, residence-based taxation.

In the meantime, I am still waiting for the answer from my own and my son’s government, Canada: Do ALL Canadians have the same rights under the Canadian Charter of Rights and Freedoms?