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September 16, 2015

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It's common all across the Western Hemisphere, including Argentina and Brazil. In fact, there's a very clear, sharp line between the New World and everywhere else: in the Americas, jus soli / birthright citizenship is the default norm, with just a handful of exceptions. In the rest of the world it's exactly the opposite: jus sanguinis / blood right citizenship is the standard.

One rare and partial exception: Germany. The children of non-citizen legal residents can claim birthright citizenship, if the parent has resided in Germany for at least eight years. By European standards, that's astonishingly liberal.


Doug M.

Another thing which makes the Western hemisphere unique is that birthright citizenship is usually constitutional. (Admittedly, most constitutions are easier to amend than the American one.)

In that sense, Canada is an outlier. As James Nicoll will attest, that is because Canada is an oligarchic ethnically-stratified nation with feudal overhangs and a closed political elite.

There is also Chile and Colombia. The common claim is that Chile does not have birthright citizenship. But that requires a tortured reading of the Chilean constitution. Article 10:

"Those born in the territory of Chile, with the exception of children of foreigners who are in Chile in the service of their government and the children of foreigners in transit, are able to opt for Chilean nationality without exception."

It's a tiny bit more restrictive than most of the hemisphere (the in-transit clause), but not a lot.

Colombia also has birhtright citizenship, although like Chile the clause is worded to insure that transients don't get citizenship. Article 96:

"Colombian nationals are:

1. By birth:

(a) Natural born Colombians, under one of two conditions: that their mother or father have been natural-born or naturalized Colombians; or having been the child of foreigners, one of their parents were resident in the Republic at their moment of birth."

Article 96 is actually more permissive than most in one sense: an American professor with legal residency in Colombia who gives birth back home in the United States can claim Colombian citizenship for her child.

Costa Rica is unlike Chile in the sense that anyone born in the country has the right to claim citizenship, but it is like Chile in that Article 13 of the Constitution gives those born there to noncitizen parents only the right to claim citizenship rather than automatically make them citizens.

Everyone else, born in-country and poof, you're a citizen. To be serious for a moment, most of these clauses are born of rathered tortured ethnic histories during which the right to citizenship was highly contested. In that sense, they arise from the same root as the 14th Amendment: in countries where the meaning of citizenship has been highly contested, the easiest solution is just to make everyone born there a citizen.

My working hypothesis is that European countries have buried those conflicts a bit deeper in their national memories (although the Roma might disagree).

I am surprised that Australia and New Zealand were so easily able to abandon birthright citizenship. I'm also a bit surprised that nobody bothered to include it the Canadian charter of rights when they wrote that up. From the perspective of the rest of the New World, that seems like quite the oversight.

Given recent legislation, lots of Canadians probably wish citizenship was more effectively protected.

Explain that one, James. Please?

I would have thought Canada was an outlier primarily because of its constitutional development - It gained an autonomous constitution before it gained a separate citizenship (since all Canadians were British subjects). I suspect that if any other British possessions in the Americas had gained the equivalent of the British North America Act in the 1860s to 1920s then birthright citizenship would similarly not have made it into the constitution as it did with the British possessions which all gained independence after the 1940s (by which time British subject status had evolved into being separate citizenships alongside a shared Commonwealth citizenship).

Good point -- but the Charter dates from 1982, which was also when Canada underwent some serious constitutional reforms. The other Commonwealth realms had already written birthrate citizenship into their constitutions, so it's perplexing that Canada didn't do the same. No?

Hmm...I wouldn't think so really. I can't think of any Charter or Bill or Rights that deals with the definition of citizenship or has the issue of truly defining citizenship tacked on. The closest one I can think of is the old French Declaration of the Rights of Man and the Citizen, but even that one didn't really define who WAS French, but rather produced the concept of active citizens (who were French, of a certain age, paid taxes and were not servants) and passive citizens (all other citizens as opposed to all other persons).

Given the debate surrounding even the passage of the 1982 Charter as it stands now (with some opposition to some aspects by various opposition parties, some British misgivings over its effects on the Canadian form of government and parliamentary supremacy and provincial opposition to limits on their power that wasn't really mollified until the inclusion of the Notwithstanding Clause in the Kitchen Accords - and even then Quebec still opposed it afterwards for a variety of reasons), including birthright citizenship would likely have been a low priority if it was even considered at all while the government was simply trying to get the Charter passed as part of the Canada Act which gave Canada full control over amending her own constitution.

I feel quite sure that if Canada had not gained such autonomy in the 1860s and instead (assuming that there were no other changes in history) gained independence in the 1960s that its constitution would have been just like the various Commonwealth Caribbean constitutions in reflecting birthright citizenship in the Constitution.

As it is, it got autonomy when everyone in Canada was a British subject by birthright (birthright subject status under the common law) and Canada was given control over naturalization and the immigration of aliens. The first Canadian "citizenship" was defined in 1910 but today it would be considered more as "belonger status" than real citizenship since it conferred domiciled status on only certain British subjects with a connexion to Canada and required all other British subjects to gain permission to land (which was usually granted anyway). This type of status was further extended to the wives and children fathered by "citizens" who had not yet landed in Canada under a 1921 Act. It was only with the 1931 Statute of Westminster that Canada gained full legislative control over nationality and citizenship, after which it was able to pass the Canadian Citizenship Act in 1946/1947 (which precipitated the various other Commonwealth nationality and citizenship acts in 1948 while retaining a common subject status).

So in a way...the 1931 Statute (which is listed as a part of the Constitution of Canada) gave Canada almost complete parliamentary supremacy (by making it legislatively equal to the UK in all but a few circumstances) and under the old British tradition, parliamentary supremacy meant parliament could make laws concerning naturalization and nationality, but not really about subject status (since being a subject was sorta automatic).

The only other Commonwealth Realms that had written birthright citizenship into their constitutions were those that did so after the 1940s (when it was Canada that took the lead in establishing a real and separate citizenship anyway). New Zealand and Australia still do not have citizenship defined in their constitutions (New Zealand less so because it's constitution is much more like that of the UK in being more or less uncodified and consisting of a number of separate documents which CAN be considered as part of the Constitution but are not definitively so).

If one looks at the Commonwealth Realms established pre-1940 v. the post-1940 Commonwealth Realms the only pre-1940 Commonwealth Realms that have definitively included the definition of citizenship in their constitutions are:

- South Africa....but only starting in 1961 when it's new republican constitution (which ended its status as a Commonwealth Realm as well as an automatic Commonwealth member) made reference to the 1949 South African citizenship Act

- the United Kingdom....but only really in 2004 when the Joint Committee on Draft Civil Contingencies Bill noted that for the purposes of the "statutory patchwork of the British constitution", "the fundamental parts of constitutional law could be taken to include the following statutes:

Magna Carta 1297
Bill of Rights 1688
Crown and Parliament Recognition Act 1689
Act of Settlement 1700
Union with Scotland Act 1707
Union with Ireland Act 1800
Parliament Acts 1911-49
Life Peerages Act 1958
Emergency Powers Act 1964
European Communities Act 1972
House of Commons Disqualification Act 1975
Ministerial and Other Salaries Act 1975
British Nationality Act 1981
Supreme Court Act 1981
Representation of the People Act 1983
Government of Wales Act 1998
Human Rights Act 1998
Northern Ireland Act 1998
Scotland Act 1998
House of Lords Act 1999
Civil Contingencies Act [2004]"

I think that the evolution of constitutional thought in the older Commonwealth Realms was probably such that birthright citizenship was taken for granted right up into the 1980s and 1990s as part of the common law as opposed to part of the constitution (which is founded on the common law). Perhaps if the Canada Act/Constitution Act of 1982 had instead been passed in 2002 we would have seen the 1946 Canada Citizenship Act included as one of the scheduled acts forming the constitution.

This also by the way would explain why Australia and New Zealand were so readily able to modify (as opposed to completely abandoning) birthright citizenship such that their laws on birthright citizenship are now more in line with that of the UK since 1983 (where birthright citizenship is only accorded to those in the country who are born to a citizen or a permanent resident) and Germany.

Canada may evolve towards that as well, if Bill C-24 or the Strengthening Canadian Citizenship Act, 2014 (which is what I think James was referring to there Will Baird) is an indication of things to come.

The debate in the US also suggests that eventually the US might move towards the British/Australian/New Zealander/German model of birthright citizenship.

Noel,

If I read the Colombian one correctly it sounds like it's even a wee bit more permissive i.e. if the father is resident and the mother gives birth elsewhere (not resident at all) then they could still claim said citizenship.

That's definitely even more liberal if I read it correctly!

I think that's right, although IANAL!

J.H.: about the U.S. moving to a more-German model --- no.

Won't happen. No effing way. The constitutional hurdles are too high. Plus, the 14th Amendment is totemic and for good reason.

Hmm...I know the constitutional hurdles are pretty high, but I dunno that I would say never.

According to some recent line of thought, it may not even need a constitutional amendment but merely a supreme court ruling (further) clarifying exactly what was meant by "and subject to the jurisdiction thereof" (in the context of a migration regime that came into being almost a decade after that clause became part of US constitutional law). Perhaps the challenge by some American Samoans over the fact that they are not currently granted constitutionally recognized citizenship might offer such an opportunity depending on how the case goes.

Of course, that might only confirm or deny that persons born in US territories are "subject to the jurisdiction thereof" and so are constitutionally due citizenship without addressing directly the issue of whether children of parents who are in the United States illegally are constitutionally due citizenship.

It would be good to have the issue ventilated in the Supreme Court one day though, since the Wong Kim Ark case of 1898 pertained to the child of legal immigrants (since at the time of his birth the Chinese Exclusion Act had not yet been passed) and at the time the first law really concerning prohibition of entry into the United States was apparently the Page Act of 1875 (which again was after Wong Kim Ark's birth). Indeed there were no real restrictions (other than the states themselves barring criminals, those with contagious diseases and paupers from landing) on immigration until 1875 with the Page Act which followed the Henderson v Mayor of New York case of 1875 which declared immigration a federal responsibility.

Had Wong Kim Ark been born in say 1884 to Chinese parents who had entered the United States in contravention of the Page Act and Chinese Exclusion Act the Supreme Court might well have taken the same view concerning his citizenship or it might have taken a different view. When Mr. Wong was born his parents were there legally in light of there being no immigration restrictions and due to the 1868 Burlingame Treaty (with Article V of the treaty having both countries "cordially recognize [not "establish"] the inherent and inalienable right of man to change his home and allegiance, and also the mutual advantage of the free migration and emigration of their citizens and subjects respectively from the one country to the other, for purposes of curiosity, of trade, or as permanent residents.")

My take is that even in such a case, the US Supreme Court should recognize that children are not responsible for the conditions of their birth and so even if their parents are not obeying the laws of the United States by being in the country illegally, that the children are not their parents and so they cannot be held as not being subject to the laws of the US because other (legally separate) persons are not.

However even though that is what I believe the US Supreme Court should decide if ever such a case arose, I'm not so certain that it would do so rather than rule in favour of an interpretation that because the parents were in the US illegally and thus not subject to the jurisdiction/laws of the US (by violating them) then the children were not US citizens on the basis that the parents should not have been in the United States and as a consequence the child has no right to citizenship anymore than I have the right to own something which was passed on to me by my father but which he acquired via illegal means. If the parents presence in the country was considered legally void, then it *might* be interpreted that all acts arising from that presence are also legally void.

I would expect though that if those wishing to have a more German-like model of US nationality law won the argument in a theoretical Supreme Court concerning children of illegal immigrants (i.e. all those persons who are not US citizens, not US permanents residents or not in the US legally via visa waiver or visa free legislation or in the US with nonimmigrant visas), then the potential fallout of millions suddenly not having US citizenship would probably be mitigated by having Congress pass yet another US citizenship statute conferring citizenship on all person born to illegal immigrants before the date of the ruling.

oops, a mistake. I should have written the Henderson v Mayor of New York case of 1875 which followed the Page Act.

IANAL, but ...

Diplomats are immune from US law. Undocumented immigrants are not. They are fully subject to American law. "Under the jurisdiction," indeed. Simple. Clear. We're done.

Of course, lawyers and judges do strange things. Frex, while I am happy that same-sex marriage was legalized, I can't for the life if me parse the grounds. But in this case I will be astounded if any court holds an alternate view.

I don't know enough about the Samoan case to comment (and the insular cases are in general travesties on a level with Dred Scott for tortured readings) but that island is under a regime unlike any of the other unincorporated territories.

Fair enough.

As I said, I think if the issue ever comes before the Supreme Court, they should find favour with the interpretation that the clause applies to the children of illegal aliens regardless.

But the fact that the insular cases have yet to be overturned and as you noted, the difficulty in parsing the grounds for the same-sex marriage legalization, makes me less sure of exactly what the lawyers and judges will do.

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