May 3, 2014 Leave a comment
The Inherent Ambiguity of the words “American Citizen”
Did you know that for nearly a century after the revolution, you could be an American citizen without being a United States citizen? I’m sure you didn’t because no one ever thought such a thing until perhaps it just now occurred to me. What explains such a possibility is the difference between the citizenship under the governments of the States and the citizenship under the national government.
After the revolution, each of the 13 new sovereign republics continued and strengthened their governments, each adding a constitution as their governing charter. They included the basis of being recognized as a citizen of the republic. Thirteen republics, thirteen origins of American citizenship, with each determining its own members.
That continued without change after the 12 colonies that ratified the Constitution set in motion the formation of a new central authority to manage the affairs of the new union of State republics. Before that, one was a citizen of his own home country (the country of Virginia, Georgia, etc.) and afterwards as well, and each had a provision regarding the acceptance of foreigners and their children into their society.
Some of them, perhaps all of them, continued the tradition ingrained by a century of British common law policy, of providing automatic membership to children born within them of immigrants, with all such native-born persons being new subjects of the King of Great Britain. Such children were not natural citizens born of natives, but were common law citizens created by allowance of law.
The newly established federal government came into being with that situation as the status quo, and had no thought of changing it since citizenship was first and foremost a State issue, not a national issue. The Constitution invested Congress with no authority to manage the issues of nationality and citizenship, except by default in regard to those born outside of any State republic, -in particular, in another nation, who were of a split-nationality marriage.
What was the nationality of a child born of parents of two different nations? Congress was free to authorize statutes to deal with them, -based on the nationality of the parents and their gender.
All of the citizens of all of the States were beyond that authority, but suppose that Congress had decided that the native-born common law children of immigrants were not to be recognized as citizens of the United States, (instead of doing what they actually did, -which was nothing). But the executive branch, which had to deal with and manage affairs involving foreign governments and Americans abroad, did institute an official, but non-statutory, policy of doing just that.
It would not be bound by having to recognize all persons born in the States as being U.S. citizens, -citizens of the aggregate nation, since they remained as subjects of their foreign monarch or government. The national government did not accept, as policy, Americans having two nationalities, two allegiances, two homelands, since one would be likely to be British, and that could not be allowed. You were either American or you were British. You absolutely could not be both.
Encyclopedia Britannica: “[T]the voluntary acquisition (other than by marriage) of citizenship of any country outside the commonwealth, (and often of any country whatsoever) is grounds for the discretionary, if not the automatic, deprivation of citizenship of every country of the commonwealth overseas, irrespective of the means of acquisition of such citizenship.
Further, intolerance of multiple status [dual or triple citizenship] goes so far in some commonwealth countries that local citizenship may be withdrawn from a person who merely retains a previous citizenship rather than acquires a new one.” [in such a case, one must renounce the citizenship and government authority of their homeland (or place of birth, if different).]
Now suppose that Congress had gone beyond its limits and codified that policy as statutory law. Then you could have had native-born immigrant children who were citizens of their home republic but who were not a citizen of the aggregate republic when it came to the national government viewing them as Americans if they traveled to another nation, -like that of their grandparent’s (and parents) country.
Or imagine that Congress decided to recognize only persons naturalized by federal courts of record and not State courts. Then State naturalized citizens would not be deemed to be United States naturalized citizens.
Encyclopedia Britannica 1967: British naturalization has been traditionally a local matter. Thus naturalization in Ireland or a colony [like Alaska (Inuits) naturalized by statute, Hawaii (Natives) naturalized by incorporation of territory, Texas, (Mexicans) naturalized by treaty ] generally conferred no status valid in Great Britain and did not entitle the naturalized person to British protection abroad. ~…Despite this creation of a common status of British subject by naturalization comparable to the common status of British subjects acquired by an individual through his own birth, [native-birth common law] or by the birth of his father anywhere within the territories under the dominion of the crown, local naturalization persisted.
~A citizen of the United Kingdom and colonies by naturalization, while he remains such, possesses exactly the same status as a person who becomes a citizen by any other mean (i.e., by birth, by descent, by incorporation of territory, registration, or adoption). “
While outside of America, they would be seen by the State Department as foreigners, even if native born (as happened to Wong Kim Ark). But within America, it wouldn’t make any difference what Washington’s policy or law was. Nothing in one’s life would be any different. They could participate in all of the privileges and duties of citizenship with one exception; they could not serve on the never-very- visible federal grand jury. That would be no loss.
They could travel between States and be recognized as a fellow native-born citizens, and as long as they didn’t engage in interstate commerce, they might never see or have dealings with an officer of the federal government, -but even it they did, their citizenship would make no difference, -nor in any court or lawsuit.
They were completely unencumbered by the existence of a federal government. Even their civil militia duty was primarily a State matter as there was no such thing as a permanent national militia maintained by the central government since bills to fund one were limited to two years (a term of the House). [That was not allowed because of the fear of a potential dictatorial use.]
There was no such thing as a federal income tax, and wouldn’t be for well over a century, so ties to a central government were essentially non-existent. They also could serve in their own State government as well as in Congress. They only had to be a citizen. A citizen? Of what?
Of the entities that were the home-ground of citizenship; the States. They were not required to be a citizen of THE UNITED STATES OF AMERICA. They only had to be a citizen, period, and being one meant that they were thereby a citizen of the Union since their State was a member, making them a citizen of the united States/ Nations/ Countries/ Republics of America.
“United” in that regard, is only properly capitalized if used as the first word of a sentence. Only in regard to the central government, or the aggregate nation of States and federal government combined should it be capitalized. As in “United Kingdom”, which as separate kingdoms would logically be labeled: “the united Kingdoms” (plural) So from that perspective, the aggregate nation could have been labeled: “The United State” or “The United Nation”. (singular) With “States” being plural, ambiguity is introduced and one must evaluate the context to know if the union is being referred to (them, these, the several, etc) or the aggregate nation, (it).
So, one could be an American, even an American citizen within and across the States, but in the view of the State Department, not a citizen of The United States of America; -not a national citizen if not naturalized in adulthood. Thus even though all U.S. citizens would be American citizens, not all American citizens would be viewed as U.S. citizens.
That was all the result of the unresolved nationality cross-conflict between the sovereignty of the States that formed the Union, and the sovereignty of the government that they formed. They were unwilling for a century to divest their sovereignty to it and it was not obligated in all circumstances to adhere to their common law citizenship policies or laws, until the Wong Kim Ark opinion was issued by the Supreme Court in 1898, which made the common law native-born children of immigrants into citizens of the nation as well as the States.
Since then, no one can be an American citizen and not also a U.S. citizen. With U.S. citizenship overshadowing State citizenship for over a century, everyone has grown up unaware of State citizenship and only thinking in terms of U.S. citizenship, -as if the States never existed as mostly-sovereign entities.
~ ~ ~ ~
Mario Apuzzo wrote: “he did not understand that citizenship of the U.S. could not have started before July 4, 1776, for there was no separate and independent political nation called the United States before then of which to be a citizen (a member),”
He is missing the real-world, picture of membership reality. Every Freeman in America was a citizen of his city or town, -his county and colony. Consider the origin of the word “city-zen”, or ‘citoyen” -an adult freeman member of a community.
If you were not a foreigner, a slave, an involuntary servant, or an Indian, then you were a citizen of your home colony or State republic.
Consider the nature of the Swiss Republic, -composed of individual semi-sovereign republican Cantons, each self-governed and semi-isolated by the Alpine mountainous terrain. [My great grandfather came to America from one of them. It’s population has had no appreciable change in 150 years. (Immigration just matching those who move to the big city.) That was the same situation across all of the broad expanse of America’s heartland and West, -not because of the Rocky Mountains and Sierra Nevada ranges alone, but because of the vast endless expanse of land, -until railroads tied the nation together.]
U.S. Congressmen only had to be citizens. They did not have to be citizens of the federal government, nor the newly organized and approved national union of the 12 sovereign republics in combination with it (the over-all nation). But the President of the eventual nation had to be a natural citizen of one of them, and by other than legal means, -meaning not by common law nor naturalization oath, but by descent only, -not native birth only.
American? check! Citizen? check! Within the nation? check!
Then you could serve in Congress to represent your State. You just had to have been born of any parents who were citizens in one of the colonies or States, -or just native-born, (a son-of-the-soil) -having foreign parents. You were a citizen either way, at least in many of the States (if not all).
On July 4th, 1776, the Americans’ nationality changed from British subject to American only. (only by being a known loyalist would one be viewed as not a citizen of their newly independent republic nor the federation of republics. They instead were viewed as the enemy; British in thinking and spirit.)
The citizenship of the colonists did not change because they remained unaltered in regard to their relationship to their own republic’s or commonwealth’s government. They were its citizens before that date and remained so after.
Mario wrote: “under the common law both a citizen and a natural born citizen was born in the country to parents who were its citizens at the time of the child’s birth.”
I give up. Such logic escapes me. Or that manifests no logic. Perhaps his brain had a hiccup while writing. Since common law citizens were children of foreign immigrants, they could not have been born of American citizen parents. Same in Britain with subjects. But to be expansive, “under the common law” did include everyone born of subject parents anywhere within the realm,- whether immigrants, natural subjects, or naturalized. So one could say that in Britain, a (common law) subject and a natural born subject were born of parents who were subjects at the time of the child’s birth, although the natural subject was a subject for life while the immigrant was only a subject while within Britain.
That was not the policy nor law of the United States. The immigrant’s status was unsettled both at the State & local level as well as at the national level, in a conflicting sovereignty & allegiance conundrum.
Since there was no king, who was a foreigner, -an immigrant, subject to? The local government? The State government? Or the new central government? The answer is all of them. Yet Americans were no longer labeled as “subjects” since they had become citizens who were subject to no king. So it could not be said that: “immigrant parents giving birth in America were American subjects, which would make their child a natural born citizen.” So Mario’s statement can’t be sensical.
“in Minor v. Happersett…a child born in a country to parents who were its citizens at the time of the child’s birth was not only a citizen like his or her parents but also a native or natural born citizen”
That is 100% true, and Mario should plant his flag there and defend only that ground, -which does not contain any requirement that a natural born citizen be identified by birth place since the wording is “a child” not; “Only a child”. HUGE difference, and one that can’t be explained on the basis of American nationality rights (which are not sacrificed by crossing the border).
The various possibilities are/were: (original) 1. “a child born in a country to parents who were its citizens… was also a native or ‘natural born citizen'”. “A child” implies: all children; not some children or only children. That leaves the door wide open for foreign-born children of citizens to be natural born citizens as well, making them natives by blood. (Like Native Americans born off the reservation or beyond their tribe’s area of claim.)
2. A child born of parents who were citizens of their country is also a citizen of their country. [the child’s place of birth unmentioned.]
3. The parents of a child born in the country of their citizenship, conveyed their citizenship to their child. [the child’s place of birth was mentioned but without implication of any importance attached to it.]
But the high court justices erred in the assumption that all others who were not natural born citizens nor naturalized citizens were therefore aliens. That was not the view of the States which remained sovereign over the membership of their own non-native inhabitants. Those States did NOT view the alien-born within their borders as aliens but as fellow countrymen, -future citizens in full at adulthood, (like all other children) by the common law in effect for over a century.
They weren’t viewed as natural citizens either but the distinction was non-existent because no State required its Governor, and Chief in Command to be a natural born citizen (as far as anyone has discovered and shared). Naturalized and alien-born citizens could become governors, just as they could become U.S. Senators.
So there are two debates; one is over the contested citizenship of the alien-born and the other is over whether of not their debatable citizenship was natural citizenship -by right of descent, inheritance, blood relationship, or merely legal via nothing more than the invented common law rule handed down in the Calvin case almost two centuries earlier as a new form of nationality acquisition -a form that did not exist during the thousand years that preceded the Calvin case.
Can the President be a Calvin “jus soli” common law citizen born of immigrants or must he be only a natural jus sanguinis citizen born of citizens? It’s blood versus borders. Inheritance versus (enshrined) government policy. Which criterion came first, -came naturally, organically, and which was invented, artificial, imposed and then institutionalized across the British Empire? Natural membership or man-made membership?
The answer determines the eligibility of Barack Obama to be President, or so one might assume. But it does not. That’s because he was not born of an immigrant father but of a temporary guest who was exempt from the full political authority of the government that extends over citizens and immigrant men. There is no allowance of citizenship for children of such men, regardless of where they are born. They are in no way members of American society since they maintain their home abroad, as well as obedience to their own government. And so their off-spring are not deemed to be citizens by the 14th Amendment. A “non-immigrant alien” cannot father an American citizen by it.
by Adrien Nash May 2014 obama–nation.com