Thursday, August 5, 2010

The 14th Amendment and Jus Soli

In naturalization, jus soli, which is Latin for “right of ground or soil”, is also known as birthright citizenship; that is the right by which nationality or citizenship can be recognized to any individual born in the territory of the country applying such doctrine.

At the turn of the nineteenth century, countries divided themselves between those granting nationality on the grounds of jus soli and those granting nationality on the grounds of jus sanguinis, which is “right of blood”. Most European countries at the time chose the concept of an "objective nationality", based on blood, race or language, opposing the principle of "subjective nationality", based on an every-day referendum of one's appurtenance to his or her Fatherland. This non-essentialist principle of nationality allowed the implementation of jus soli, against the essentialist jus sanguinis.

Regulation of the acquisition of nationality or citizenship of a country by birth on the territory of such country is provided by a derivative law called lex soli, which means “law of the soil”. That is the law each country established for acquisition of citizenship in that country by birth in such country. Most countries provide a specific lex soli, in application of the respective jus soli, and it is the most common means of acquiring nationality. A frequent exception to lex soli is imposed when a child was born to a parent in the diplomatic or consular service of another country, on a mission to the country in question.

As we have seen recently, there is a move in the United States towards trying to restrict lex soli by requiring that at least one of the child's parents be a national or a legal permanent resident of the country in question at the child's birth, or that the child be a foundling found on the territory of the state in question (e.g., see subparagraph (f) of 8 U.S.C. § 1401). The primary reason for imposing this requirement is to limit or prevent people from travelling into the U.S. with the specific intent of gaining citizenship for a child.

Notwithstanding, jus soli is formally stated in the Fourteenth Amendment, judicial authorities recognize that the philosophy was integral at the conception of this country's constitution.

The 14th Amendment reads, in pertinent 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." This makes citizens of all persons born in the United States, provided they are subject to U.S. jurisdiction at the time of their birth - that is, they are not the children of foreign diplomats and like persons who, having diplomatic immunity, are not subject to U.S. jurisdiction while they are in the country for diplomatic purposes.

At the time the Fourteenth Amendment was ratified in 1868, it excluded Aboriginal Americans because they were not considered subject to the jurisdiction of the United States. Congress declared it policy to extend citizenship to all Aboriginal peoples in 1924, which was realized in 1968 with the Indian Civil Rights Act.

This scope of the Fourteenth Amendment was addressed in 1898 by the Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898). In a 6-2 decision, the Court rejected arguments that petitioner was not "subject to the jurisdiction" of the United States because that phrase applied to exclude (1) children born to foreign diplomats and (2) children born to enemy forces engaged in hostile occupation of the country's territory. Petitioner did not fall within either category. The Court also rejected the government's attempt to limit Section 1 of the 14th Amendment by arguing it was intended solely to allow former slaves and their descendants to become citizens. The Court held the petitioner, a child of subjects of the Emperor of China whose parents were lawfully living in the United States where he was born, was a U.S. citizen by birth. Notwithstanding the Chinese Exclusion Act of 1882, his citizenship status could not be revoked because his parents were not American citizens at the time of his birth, or because they and he made several trips to China afterwards.

Any remaining doubts about the scope of the Fourteenth Amendment were resolved by the Supreme Court's decision in Plyler v. Doe, which held that “the Fourteenth Amendment extends to anyone, citizen or stranger, who is subject to the laws of a State, and reaches into every corner of a State’s territory. That a person’s initial entry into a State, or into the United States, was unlawful, and that he may for that reason be expelled, cannot negate the simple fact of his presence within the State’s territorial perimeter.”

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