Some considerations if we amend the 14th Amendment.

Sunday, February 13th, 2011
By: Jonathan MontagJ.D.

The way U.S. citizenship law works is that being born here usually makes one a citizen. As the Fourteenth Amendment stated, “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.” This was a change from Article I, Section 2, of the Constitution, which states, “Representatives and direct taxes shall be apportioned among the several states which may be included within this union, according to their respective numbers, which shall be determined by adding to the whole number of free persons, including those bound to service for a term of years, and excluding Indians not taxed, three fifths of all other Persons.” People who are not subject to the jurisdiction of the United States include diplomats who have diplomatic immunity and thus their children, if born in the United States, are not United States citizens, as was decided by the Supreme Court in 1898.  It is important to note that not all foreigners in the United States working for foreign governments have diplomatic immunity. You can tell the ones who do as they are the ones who double park

The law’s making people born in the United States citizens, referred to as jus solis, has a certain administrative simplicity. Need to prove you are a citizen? – show your birth certificate. This is the easy process for the vast majority of people. Want a passport? – send in your birth certificate, a form, photos, and money. No involvement with the immigration officials at USCIS necessary. No costly determination – the fee to USCIS for its determination of citizenship and the production of a certificate of citizenship is now $600 and takes between five months and a year to accomplish. You can look of he processing time for your area by looking at the posted time for the form, N-600, here.  If not born here, there are a large number of statutes, amended often and not retroactive when amended, that determine whether someone is a citizen if born outside the United States. Were the United States to amend the fourteenth Amendment (hopefully not simply repeal Article 1, Section 2 to get back to our founders original intent or else we’d re-legalize slavery) to abolish the conferring of citizenship to people just by virtue of being born in the United States, everyone would have to go through some ordeal to prove citizenship. Assuming the $600 fee USCIS now charges for a Certificate of Citizenship properly accounts for the cost of the process, everyone would then have to pay $600 to prove their child’s citizenship. Assuming the government absorbed the cost, we’d all have a taxes raised to pay the $600 fee for a determination of a child’s citizenship. The laws about how a person derives citizenship when not born in the United States (citizenship acquired by birth in the United States which would be unavailable in this hypothetical situation) is based on how Congress, at the numerous times it tinkered with the laws, perceived the requisite closeness of ties to the United States. The normal rule is that a child becomes a citizen if a parent is a citizen and has lived in the United States before the child is born – with all kinds of variations concerning for how long the parents lived here and at what ages. The rules change based on the date of birth of the child (remember, the laws are not retroactive so a change in the law does not affect a child born before the law passed – what would happen to people who are now considered citizens if the Fourteenth Amendment passes? Would people be stripped of their citizenship? You might think that this would be unconstitutional, but if we are amending the Constitution, the change could not be unconstitutional, right?) Based of variations in human behavior – different times in life that someone lived in the United States, whether both the parents are citizens, whether it is the mother or the father who was the citizen (Yes, that sometimes matters.), whether the mother and father were married, and whether the father legitimated the child or in some way officially acknowledged paternity, the rules change. Sometimes other exigencies come into play.

Several charts are available  showing the myriad of permutations. Quite prevalent are situations where citizen parents take a foster child into their home and raise the child for twenty years and find the child is not a citizen. Another is where a citizen parent is taken by his parents to a foreign country as a child and has a child abroad and the child learns he or she has no status because the parent did not live in the United States long enough before he or she was born. Proof is also a huge problem. The citizenship claimant has to prove his or her parent lived in the United States for certain periods of time. If the parents died and no papers can be found proof is a huge problem. People living by U.S. borders with Canada and Mexico in the past could easily live in two countries, so determining residence is problematic. Finally, in the past, people had fewer papers in general – papers had to be hand written and hand copied which meant less paper.

Wives of United States citizens automatically became United States citizens until 1922 when the practice ended.  The change was considered positive for women because it gave them some say in their citizenship. Also, concomitant with automatic citizenship for women who married United States citizenship was automatic denaturalization if a woman married a foreigner. Automatic citizenship upon marriage is something many still believe exists. Quite often newlyweds call and ask how the foreign spouse can get his or her passport. When I explain it will take about four years and cost $2760 in filing fees  ($1490 to become a permanent resident (Forms I-130 and I-485), $590 to remove the conditions on residence (Form I-751), and $680 to naturalize (Form N-400)) before they can apply for a passport, they seem quite surprised.

One interesting law was a section of the law, Section 201(i), which was added on July 31, 1946. This section stated:

(i) A person born outside the United States and its outlying possessions of parents one of whom is a citizen of the United States who has served or shall serve honorably in the Armed Forces of the United States after December 7, 1941, and before the date of the termination of hostilities in the present war as proclaimed by the President or determined by a joint resolution by the Congress and who, prior to the birth of such person, has had ten years’ residence in the United States or one of its outlying possessions, at least five years of which were after attaining the age of twelve years, the other being an alien: Provided, that in order to retain such citizenship, the child must reside in the United States or its outlying possessions for a period or periods totaling five years between the ages of thirteen and twenty-one years: Provided further, That, if the child has not taken up residence in the United States or its outlying possessions by the time he reaches the age of sixteen years, or if he resides abroad for such a time that it becomes impossible for him to complete the five years’ residence in the United States or its outlying possessions before reaching the age of twenty-one years, his American citizenship shall thereupon cease.

The Foreign Affairs Manual, the rule book for Consular Officers, explained this section at 7 FAM 1134.4:

Section 201(g) NA precluded transmission of citizenship by persons under age 21. Because persons under that age who had served in the U.S. Armed Forces during World War II and were married to aliens found themselves unable to transmit citizenship to their foreign-born children, the Nationality Act of 1940 was amended to include section 201(i). This permitted citizens who had served honorably in the U.S. Armed Forces after December 7, 1941, and before December 31, 1946, to transmit citizenship to their foreign-born children if, prior to the child’s birth, the citizen parent had resided in the United States for 10 years, 5 of which were after the citizen parent’s 12th birthday. Thus, section 201(i) NA reduced to age 17 the minimum age at which a citizen parent who served in the U.S. Armed Forces during the statutorily prescribed period could transmit citizenship.

Stripping way the legalese, before World War II, to transmit citizenship to a child born abroad, a father had to have lived in the United States for 10 years before the child was born, five after the age of 16. That meant that unless the father was at least 21, his child was not a citizen. In section 201(i), the rule was changed to requiring residence for 10 years before the child was born, five after the age of 12. This allowed for children born to fathers as young as 17 to transmit citizenship to their children. Apparently, the Great Generation was doing more than defeating the Nazis during World War II and the collateral damage of their activity – children — were accepted into the United States homeland as citizens by affording them citizenship. There were other amendments to these changes to account for illegitimacy. In fact the FAM comment about being “married to aliens” does not exactly correspond to Section 201(i), which doesn’t refer to marriage. In 1952 the law changed again raising the minimum age to 19. In 1986 the law changed again, making the minimum age 16.

The laws of derivative citizenship will require a dramatic overhaul if the 14th Amendment’s citizenship by birth in the United States is changed. The alternative will be loads and loads of stateless people, some eligible to eventually become citizens and some destined to be stateless for life. It will also mean people with remote ties to the United States will probably be allowed to claim citizenship status – people who could not meet the requirements now but for their being born here. Posted February 13, 2011.

 


 

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