The legal status of “citizen” is different from the reality of “citizenship”

Once upon a time, so very long ago, in a not so far off land, I was beginning my first year of University. During the “orientation week” I listened to a “Welcoming speech” from the President of this particular institution. The man was a “living legend”. But, what I remember was the manner in which he was proudly introduced to the freshman class.

His introduction included the following description:

“I would like to introduce to you _________________

A man who was an American by birth and a Canadian by choice

I remember finding this description very interesting. As a U.S. citizen, who grew up on a steady and relentness diet of “anti-Americanism” in Canada, I understood the statement to be both:

1. A statement of the man’s legal status (I.e. he began life with the legal status of being a U.S. citizen and now had the legal status of being a Canadian citizen); and

2. A statement that implied that citizenship was more than a legal status.

The idea that “citizenship” is more than a legal status was conveyed by President Obama in his 2013 State of the Union address as follows:

But as Americans, we all share the same proud title — we are citizens.  It’s a word that doesn’t just describe our nationality or legal status.  It describes the way we’re made.  It describes what we believe.  It captures the enduring idea that this country only works when we accept certain obligations to one another and to future generations, that our rights are wrapped up in the rights of others; and that well into our third century as a nation, it remains the task of us all, as citizens of these United States, to be the authors of the next great chapter of our American story.

In January of 2014, President Obama (via press Secretary Jay Carney) also conveyed the idea that:

In the United States, the outcomes of your life should not be determined by the circumstances of your birth.

(In this context, as per the 14th amendment, it must be remembered that the United States considers all those born in the United States to be presumptively U.S. citizens.)

Citizenship, place of birth and the relationship between them

It is wrong to believe that a majority of countries grant citizenship based solely on place of birth. In most countries, the sole fact of being born in the country will NOT automatically give the person citizenship. That said, under the citizenship laws of both Canada and the United States, the fact of being born in the country, makes you a citizen of that country.

In the case of Canada, the various “Citizenship Acts” of Canada have given Canadian citizenship to those born in Canada. The constitution of Canada does not define what it takes to be or become a citizen of Canada.

In the case of the United States, the 14th amendment of the U.S. constitution, states that those born in the United States are citizens of the United States. Since this is found in the 14th amendment, any change to this must come in the form of a constitutional amendment.

The automatic correlation between birthplace and citizenship upsets:

Many who do NOT reside in the United States, have no connection to the United States, and no desire to be part of the United States; and

Many who reside inside the United States, who object to the principle that a parent can make one a U.S. citizen by arranging for the birth of the person on U.S. soil.

The “fact” of having been born in a country, does not guarantee any connection to the country. Is a connection to the country important? Should citizenship be based on more than an “accident of birth”?

In fact, I came across a recent article, describing an attempt on the part of a U.S. group to amend the constitution so that birth in the United States, would NOT be sufficient to grant U.S. citizenship. The article is an interesting read and includes:

Anyone born on American soil is an American.

That’s an unconditional right, according to the 14thAmendment of the US Constitution.

It’s not an exclusively American practice. Worldwide, about 30 nations (mostly in the Western Hemisphere) have similar birthright citizenship policy. Citizenship based on where a person is born, is called jus soliwhich is Latin for “right of the soil.”

But jus soli is primarily a New World right. Today, there are no European nations that grant jus soli. Most countries in Europe use a jus sanguinis policy, which determines citizenship based on having an ancestor who is a citizen.

A bill making its way through Congress, if passed, would bring the US more into line with current European birthright policies. But in the wake of the controversy over Arizona‘s new immigration policy, any changes to the 14th amendment would likely become another flashpoint in the debate over illegal immigrants.

“Many countries do not grant birthright citizenship because they have older histories and see themselves as individual nations with individual identities,” explains John Skrentny, Director of the Center for Comparative Immigration Studies and sociology professor at the University of California at San Diego. “Whereas the United States, like many other countries in the Western Hemisphere, began as, and has always seen itself as, a melting pot,” he says.

In recent years, other nations, even if they seem themselves as open to legal immigrants, have taken steps limit the size of any demographic boost based on births to foreigners.

In 1983, for example, England amended its jus soli policy (pdf download) so that children born in the United Kingdom were only granted citizenship if one of their parents was either a citizen or could prove some sort of permanent residency in the country.

And India moved away (pdf download) from granting birthright citizenship in late 2004 to only allowing those born in the country to gain citizenship if both parents are citizens or if one parent is a citizen of India and the other is not an illegal immigrant.

In the US, those opposed to this form of granting citizenship would like to revise the 14thamendment, which says, in 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 ….

The article states that there are only about 30 countries that grant citizenship based solely on birth in the country. These countries include the United States and Canada but do NOT include many of the European countries. The connection between citizenship and place of birth is not a “world wide standard”.

Policy consideration: Citizenship and place of birth

Canada is in the process of amending it’s Citizenship Act. At the present time, Canada grants citizenship to those born in Canada. Apparently this practice is being reconsidered – as described by an immigration lawyer as follows:

Another expected change is the elimination of the automatic grant of Canadian Citizenship for those born in Canada. Reportedly, Canada and the United States are the only developed countries in the World that grant citizenship to individuals born on their territory.

For a number of years Conservatives, and other commentators, have been complaining about “birth tourism” — tourists who come with the purpose of giving birth in Canada so that the child will acquire Canadian Citizenship by right of birth.

Former immigration minister Jason Kenney was adamantly opposed to this current practice. “Granting citizenship based on place of birth is “outdated” and the rules need to change to prevent the proliferation of passport babies.” The new Minister of Citizenship and Immigration echoes this concern. Alexander said, “It’s something we need to look at. There is clearly abuse… People who come here as birth tourists solely for the purpose of acquiring citizenship for newborns and without any intention of immigrating and living here permanently — we need to find a way of addressing that.”

In the United States critics describe these American born children as “anchor babies.” Critics in the US are calling for the elimination of this policy of granting United States Citizenship to all individuals born in the country. They propose limiting the granting of citizenship to babies where at least one parent has permanent residence or citizenship status in the United States.3

The time has come to end the practice of granting citizenship based solely on place of birth. There is a difference between the legal status of “citizen” and the idea of “citizenship”. “Citizenship” involves more than being just a legal citizen. “Citizenship” includes a connection to and commitment to a country – which is recognized by Canada’s Immigration Minister Chris Alexander as follows:

Our government is strengthening the value of Canadian citizenship.  Canadians understand that citizenship should not be simply a passport of convenience. Citizenship is a pledge of mutual responsibility and a shared commitment to values rooted in our history. I am pleased to bring forward the first comprehensive and overdue reforms of the Citizenship Act in more than a generation.

Chris Alexander, Canada’s Citizenship and Immigration Minister

Our government expects new Canadians to take part in the democratic life, economic potential and the rich cultural traditions that are involved in becoming a citizen. We are proud to introduce changes that reinforce the value of citizenship while ensuring the integrity of the immigration system is protected.

Chris Alexander, Canada’s Citizenship and Immigration Minister

Citizenship – A spectrum of rights from the government and obligations to the government

A large number of groups advocate ending the practice of granting citizenship based solely on place of birth.

Those who want to end responsibilities from governments

Those who want to end the practice of granting citizenship based solely on “place of birth” do so on the basis that it is unfair to the country to have citizens who have no meaningful connection to the country. (This is based on a theory that citizenship gives rise to entitlements.)

Those  who want to end obligations to governments

Is it morally justifiable that somebody born (through no choice of their own) in the United States, who left the United States at a young age, wo has no connection to the United States, and does not want to be a United States citizen, be required to pay taxes to the United States?

I encounter this injustice every day.

Leaving aside the injustice of citizenship-based taxation, perhaps the time has come to:

1. Change laws granting the legal status of citizenship, based solely on place of birth; and

2. Recognize that U.S. citizenship-based taxation is taxation based on the legal status of being a “citizen” and NOT on the reality of “citizenship”.

 

 

 

 

 

 

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One thought on “The legal status of “citizen” is different from the reality of “citizenship”

  1. Tim

    One thing that is largely forgotten is US citizenship AND US nationality are two different things. All US citizens ARE US nationals but NOT all US Nationals are US citizens. More important US Nationals ARE not subject to the extraterritorial tax laws that effect US citizens but yet as US Nationals are entitled to the protection of the US government outside the US.

    *On a technical note US Citizens can’t renounce their citizenship instead they renounce the US Nationality which at the same time extinguishes their US citizenship. That is why people who renounce their citizenship renounce not a certificate of loss of citizenship but a certificate of loss of nationality. US Nationals who are not citizens of course may also renounce their nationality in the same manner.

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