Donald Trump, Elizabeth I, and the English Origins of Birthright Citizenship

2015/09/08 Leave a comment

A good in-depth piece on the history of birthright citizenship, and how it was derived from British judicial decisions:

The Republican frontrunner’s assertion that the United States is “just about” the only country “stupid enough” to grant citizenship to all children born within its borders is easily proven false. Far from a scarlet letter of perversion, the U.S. policy is more like a badge of membership in the Western Hemisphere, where nearly all countries adhere to a version of the principle, a commonality some scholars argue is a legacy of colonial pro-immigration policies in the New World.

But the term “birthright citizenship” is also misleading. There are actually two common types of birthright citizenship in the modern world, and both are incorporated into U.S. policy. Trump and those who agree with him apparently only object to one of them.

You can be born into U.S. citizenship by being born in the United States—the principle known as jus soli, or “right of the soil.” Most countries in the Americas feature jus soli citizenship. And you can also be born into U.S. citizenship by being born to U.S. citizens, even if you’re born abroad—a concept known as jus sanguinis, or “right of blood.” “Roman law,” said University of Michigan law and classics professor Bruce Frier, “was very distinctly in the jus sanguinis category.” The policy has also frequently been incorporated into modern European states, emphasizing membership in the nation through parentage.

Yet the real irony of calling “birthright citizenship” a peculiarly American stupidity is that historically and theoretically speaking, geographical birthright citizenship is precisely as American as apple pie. That is to say: it’s English—and thoroughly monarchical in origin.

Given his “anchor baby” rhetoric, Trump may be pleased to learn one thing: The case many scholars cite as establishing the theoretical basis for geographical birthright citizenship did indeed involve a troublemaking toddler. The toddler was a Scottish aristocrat, and the case was a property battle.

In 1603, Elizabeth I, the “Virgin Queen,” died without an heir. The solution was to give her cousin Mary’s son, James VI of Scotland, a second crown, making him James I of England. The tough part about that, according to the University of Miami law professor Kunal Parker, author of a forthcoming history of immigration and citizenship law, was that “under English law, aliens—those who were born outside the allegiance to the king—were not able to hold or convey titles of real property.” Thus, in 1608, an English court found itself answering an intriguing question: If two-year-old Scottish infant Robert Colville had been given lands in England, were his claims on those lands valid? The traditional English position at the time of the case, Parker said, “was of course because he’s Scottish and hence an alien he should not have good titles to lands in England.” “Every one born within the dominions of the King of England is entitled to enjoy all the rights and liberties of an Englishman.”

In his influential report on what has, inexplicably given the actual names of those involved, become known as Calvin’s Case, the English judge Sir Edward Coke articulated a distinctly feudal-sounding jus soli principle that formed the basis of much law to come: “Every one born within the dominions of the King of England, whether here or in his colonies or dependencies, being under the protection of—therefore, according to our common law, owes allegiance to—the King and is subject to all the duties and entitled to enjoy all the rights and liberties of an Englishman.” Furthermore, “Seeing then that faith, obedience, and ligeance are due by the law of nature, it followeth that the same cannot be changed or taken away.”

In other words: People born in the king’s lands are his subjects and owe him allegiance, while he owes them protection, and there’s nothing the subject can do about it. This idea failed to delight the Lockean consent-of-the-governed junkies of later decades and centuries. As the law professor Peter Schuck and the political-science professor Rogers Smith put it in their famous 1985 critique of U.S. immigration policy, Citizenship Without Consent, “At a conceptual level, [birthright citizenship] was fundamentally opposed to the consensual assumptions that guided the political handiwork of 1776 and 1787.”

Source: Donald Trump, Elizabeth I, and the English Origins of Birthright Citizenship – The Atlantic

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S. Africa may cancel dual citizenship to curb IDF enlistment | The Times of Israel

2015/09/08 Leave a comment

Foreign military service in principle suggests a greater loyalty to the country of military service, but this measure seems unduly targeted at South African Jews who join the IDF:

Obed Bapela, a senior ANC official who heads its National Executive Committee on International Relations, said the “model” of dual citizenship may not have “a place in the world,” the South African daily The Sunday Times reported.

The government in Pretoria has been among the most hostile to Israel in recent years. South Africa’s minister of higher education Blade Nzimande, a member of the Communist Party, has openly campaigned to boycott Israeli universities and other institutions, and was denied entry into the country for a working visit to Palestinian Authority areas in April.

An ANC party conference discussed the Israeli-Palestinian conflict, including the issue of South Africans serving in the IDF, in July. The issue would be taken up again in the party’s National General Council in October, the Times said.

The country’s Jewish Board of Deputies has accused ANC officials of singling out South African Jews.

While IDF enlistment was cited explicitly by Bapela and others as the reason for reconsidering South Africa’s acceptance of dual citizenship, no figures have been provided by the party for how many South Africans actually serve in the IDF. With a population over 53 million and large immigrant populations from Asia and other parts of Africa, any change to the South African constitution to enable stripping South African migrants to Israel of their citizenship may end up affecting millions of other citizens.

Jews account for an estimated 0.2 percent of the country’s population. It is not known how many currently serve in the IDF.

Source: S. Africa may cancel dual citizenship to curb IDF enlistment | The Times of Israel

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Citizenship – Differences Among Visible Minorities

2015/09/03 1 Comment

A recent Twitter enquiry asked what percentage of visible minorities are also Canadian citizens. The overall answer is 78.3 percent, but that question provoked me to prepare the following chart showing the differences between different groups:

Citizenship - Visible Minorities.001

The chart is ordered in increasing order of those who remain non-citizens (but does not distinguish between those who are eligible or not).

Hard to explain some of these differences as no one variable (e.g., education, income, number of second-generation or more) seems at play. Nor is the time resident in Canada (needed to be eligible) likely to be a significant factor as it could not explain the large differences between groups (e.g., Chinese and Filipino).

The relatively large share of dual nationals for West Asian, Arab and Latin American groups may be explained by the greater convenience of being able to return to one’s country of origin with that country’s passport (e.g., Iranian Canadians cannot enter Iran on their Canadian passport and thus need to maintain their Iranian nationality).

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Iran’s Surprising New Foreign Legion

2015/09/03 Leave a comment

Ironic. Follows US approach of granting preference to those who serve in the military, which Canada also adopted in the 2014 Citizenship Act changes:

Proposed amendments to Iran’s Civil Code under the name “Facilitating Naturalization of non-Iranian Veterans, Warriors and Elites” will offer citizenship to foreigners who join Iranian military units—be it border patrol, militias confronting the so-called “Islamic State” in Iraq and Syria, groups involved with public order operations, or any of Iran’s less “official” military initiatives, including support for Hezbollah in Lebanon. Under the amendments, “revolutionary heroes” can become citizens without undergoing existing naturalization requirements.

Parliamentarians who signed the bill say those who “serve the revolution,” including people who have contributed to Iran’s scientific progress, will be entitled to easier access to the citizenship they deserve. Yet human-rights activists and lawyers say the amendments are part of a political and militaristic strategy to entice immigrants, who have resided illegally in the country since 1979, into fighting Iran’s proxy wars.

If passed, the amendment to Article 980 will allow a new working group—the Committee for Granting Naturalization to non-Iranian Veterans, Warriors and Elites—to decide if a non-Iranian “revolutionary” will be granted Iranian citizenship. The MPs who tabled the bill on January 12 include several conservative parliamentarians who are currently waiting for their amendment to be reviewed.

Who does this new law affect and what is it really trying to achieve?

“After the Soviet Union invaded Afghanistan [in 1979], the government of the Islamic Republic of Iran opened its doors to Afghans, arguing that Islam does not recognize any borders,” explains Shirin Ebadi, an Iranian human-rights lawyer and 2003 Nobel Peace laureate. “At that time, around 4 million Afghans came to Iran, but only around 10 percent of them managed to obtain residency permits.” The rest, she explains, remained illegally, and were thus denied basic rights which citizens enjoy. “At that time,” Ebadi continues, “Iran had begun an eight-year war with Iraq and was naturally in need of inexpensive labor. Iran took advantage of illegal Afghan workers to satisfy this need.” But when the war ended, the policy remained.

Source: Iran’s Surprising New Foreign Legion – The Daily Beast

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Justin Trudeau vows to repeal ‘2-tiered’ citizenship law

2015/09/01 Leave a comment

Unclear whether he would repeal the complete Citizenship Act (the reporting suggested that) or just the revocation and a few other provisions:

Liberal Leader Justin Trudeau says if elected his government will repeal the Conservative government’s “two-tiered” citizenship law and that he would do more to help free imprisoned Egyptian-Canadian journalist Mohamed Fahmy.

“Liberals believe in a Canada that is united — strong not in spite of its differences, but precisely because of them,” Trudeau told an audience at the Jalsa Salana Islamic conference in Mississauga, Ont., on Saturday afternoon.

He added that under Conservative Leader Stephen Harper, Canadians are being encouraged to be fearful of one another and there has been a decline in refugees coming to Canada, and in citizenship applicants.

In an accompanying news release, Trudeau said his government would repeal the Conservative government’s controversial Strengthening Canadian Citizenship Act, saying it “devalues Canadian citizenship by creating two classes of citizenship.”

“Liberals will guarantee that all Canadians’ fundamental rights are respected as guided by the Canadian Charter of Rights and Freedoms,” the statement said.

The act became law in June 2014. While several elements of the law remain controversial, a provision that came into effect in May of this year expands the grounds on which the federal government can strip dual nationals of their Canadian citizenship, even if they were born in Canada.

The provision gives the power to revoke citizenship, in some cases, to elected officials and not a federal court.

“There is a suggestion that some of us might be less Canadian than others, a suggestion of who ought to decide who stays or goes from Canada be an elected politician instead of our justice system. I think that’s wrong,” Trudeau said during his speech.

The changes are currently being challenged in court by a coalition of civil liberties groups.

In a statement, the Conservative candidate for Ajax [and current Minister of Citizenship and Immigration] described Trudeau’s remarks as “more evidence that he’s just not ready,” to be prime minister.

“Canadians know that only Conservatives can be trusted to take action against those who would do Canada harm and stand up for Canadian values,” Chris Alexander said.

Liberal position is consistent with their opposition to the revocation provisions during the C-24 Citizenship Act hearings (NDP also opposed).

In a sign that either the Conservatives continue to think they have a winner on this issue (earlier polling would suggest that) or whether they are worried that they don’t, the heavy hitters, Jason Kenney and Jenni Byrne were denouncing Trudeau’s position vigorously on Twitter.

Source: Justin Trudeau vows to repeal ‘2-tiered’ citizenship law – Politics – CBC News

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The US Anti-Birthright Citizenship Brigade | Mother Jones

2015/08/31 Leave a comment

Background on some of the lawyers arguing that the 14th Amendment does not provide for birthright citizenship:

Eastman and Graglia, however, may not be the best proponents of their theory. Both have a history of controversial comments and opinions that make them easy prey for Democrats. Eastman, a professor at Chapman University School of Law in California, is the chairman of the National Organization for Marriage, a group that fought bitterly against same-sex marriage, and he once equated homosexuality with “barbarism.” Graglia, of the University of Texas at Austin’s law school, is a longtime opponent of affirmative action and busing programs. His comment in 1997 that black and Hispanic students “are not academically competitive with whites” earned him the moniker “the most controversial law professor in America.”

At April’s hearing, instead of inquiring about Graglia’s views on the Citizenship Clause, Democrats on the committee instead grilled him on these past statements and entered old articles about them into the record. For a Republican Party that hopes to appeal to Hispanic voters in particular, Graglia may not be the best ambassador on the citizenship debate, which many already find offensive. In recent years, the first people to introduce the idea that birthright citizenship is more limited than is commonly understood were two professors, Peter Schuck of Yale Law School and Rogers Smith of the University of Pennsylvania, who argued in a 1985 book that Congress could exclude the children of undocumented immigrants from automatic citizenship.

While they hold to that belief today, they don’t seem particularly pleased with the Pandora’s Box they opened. “This is just NOT an issue that should be occupying the country’s attention at this moment, if ever,” Smith said in an email. “We have far, far more important problems to deal with that we are not addressing, including mounting economic inequalities, persisting racial inequalities, environmental degradation, crumbling infrastructure, a crippled labor movement. That’s why I rarely talk about the issue these days. I believe very strongly that our focus should be elsewhere.”

Source: The Anti-Birthright Citizenship Brigade | Mother Jones

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Why Dropping ‘Anchor Baby’ Is a Problem for US Politicians | TIME

2015/08/28 Leave a comment

Good article on the history of the term “anchor babies” in the US, and how it has evolved into an offensive term (in Canada, the term generally used is birth tourism, where the numbers are tiny):

This about-face stirred debates about who should decide what’s offensive and who shouldn’t. Was an American institution kowtowing to liberals? Or was a dictionary being descriptive about how a word is truly perceived among English-speakers? When Oxford Dictionaries quietly added their definition after that controversy settled, they tagged it with a bright orange offensive label. Those signs are, Oxford editor Katherine Martin says, not chosen by lexicographers making emotional decrees but affixed as guidance for people who want to use the language intelligently.

Often when language gets accused of being offensive, public figures and media shift to more neutral ground, which can lead to some exhausting phrasing. (When the AP banned their journalists from using undocumented immigrant and illegal immigrant, for instance, standards editor Tom Kent suggested to TIME that a more precise description might be “foreigners in the United States in violation of the law.”)

Martin says one problem with anchor baby is that there is no natural alternative, overwrought or otherwise—and not for the neutral reason suggested by Bush, whether or not he meant to insult anyone. “There is no neutral term for this because it is a term that is intended to be derogatory,” she says.

One indication of that intention, as the Washington Post‘s Amber Phillips points out, is that the idea it describes doesn’t entirely make sense in practice. As TIME explained in 2011, “the law says the parents of such a child must wait till she is 21 for her to be allowed to sponsor them to live and work legally in the U.S., and research shows that the vast majority of children of illegal immigrants are born years after the mother and father have arrived in the U.S.”

Regardless, the phrase has stuck. And, while debate over its use can actually lead to discussion of important issues like candidates’ positions on birthright citizenship (Bush is for it; Donald Trump, who also uses the term, is against it), that stickiness is just one more reason for conscientious politicians to steer clear of it, says linguist Zimmer. “The difficulty is that those pithy words and phrases are much more memorable and work their way into the public consciousness,” he says. “And once they’re there, they are difficult to dislodge.”

Source: Why Dropping ‘Anchor Baby’ Is a Problem for Politicians | TIME

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National Post View: Are Republican candidates actually on to something about “anchor babies”? | National Post

2015/08/27 Leave a comment

National Post Editorial on the US debate in the Republican primaries on  birth tourism (‘anchor babies’) and implications for Canada:

We aren’t endorsing any policy change here, but would simply point out that birthright citizenship is not the gold standard of fairness many might believe. As with the United States, changing the status quo would involve great expense and effort, making it of questionable pragmatic value. But in principle, the GOP candidates have a point: in a liberal democracy, the right of citizenship should be based on actual connection to the country in question, not a mere reflection of where one happened to be born.

The editorial ignores that CIC and provincial evidence shows this is a minimal issue in terms of numbers (see my earlier article of a year ago in the Hill Times What happened to Kenney’s cracking down on birth tourism? Feds couldn’t do it alone):

Officials could only identify about 500 cases of suspected birth tourism out of an annual average of some 360,000 live births in Canada, or 0.14 per cent.

CIC public consultations in  2013 resulted only in more anecdotes, not hard evidence.

Evidence-based editorials please!

National Post View: Are Republican candidates actually on to something about “anchor babies”? | National Post.

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Donald Savoie: How government went off the rails

2015/08/24 Leave a comment

Donald Savoie confirms the policy/service delivery hierarchy.

My experience when Service Canada was established, and then watching how the both the Government and the public service whittled away at the vision of making service as important as policy, is a case in point.

Another example was Citizenship and Immigration Canada’s inability in 2010-12 to implement a series of inter-related changes – new citizenship test, language assessment process, anti-fraud efforts and program review cuts to the regions – which resulted in a dramatic fall in the number of new citizens:

Below the fault line is where government is coming up short, often because the ones operating above it have no appreciation of how the machinery operates. It is also where the great majority of Canadians deal with their government. The view among politicians and the courts is that government is about 90 per cent ideas and 10 per cent implementation. Making a policy or program announcement, defining the right media line and keeping an eye on the blame game as it is played out in Parliament and the media are what truly matters. They expect that program managers below the fault line should simply run on their tracks and avoid providing fodder for the blame game. The view among the majority of Canadians and front-line government workers, however, is that government should be 90 per cent delivering services efficiently and 10 per cent ideas. Canadians are too often left waiting, for an hour or so, to talk to someone after calling a 1-800 number, days to get a phone call returned or weeks to get an answer to what they regard as a straightforward question.

Not only have we overloaded the machinery, we have also misdiagnosed the patient. The thinking that we could somehow make the public sector as efficient as the private sector was misguided, costly and counterproductive. The thinking conveniently overlooks the fact that the public and private sectors are different in both important and unimportant ways. Consider the following: 76 per cent of public-sector employees belong to a union versus 16 per cent for the private sector. The blame game plays very differently in both sectors and the private sector has an unrelenting bottom line, while the public sector has none, or rather has a top line called the prime minister, Parliament and the media. In the private sector, good managers learn to delegate down. In the public sector, good managers learn to delegate up.

In the search for a bottom line, governments have created an abundance of oversight bodies, management constraint measures and vapid performance and evaluation reports. It has only made the machinery of government thicker, more risk-averse and created a veritable army of public servants kept busy turning a crank not attached to anything. It has also given rise to a serious morale problem in the public service.

This is not an indictment on what government tried to do or on the role of government in modern society but rather how the government tried to do it. Thinking that you can simply pile on responsibilities to the existing machinery and somehow emulate private-sector management practices while retaining the command and control approach to operation is where things went off the rails.

  Donald Savoie: How government went off the rails  

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Court challenge slams new Citizenship Act as ‘anti-Canadian’

2015/08/21 Leave a comment

The expected court challenge by BCCLA and CARL. We will see whether or not the assertions of the Government regarding these changes to the Citizenship Act being constitutional hold water:

This citizenship-stripping law is unjust, legally unsound and violates the core values of equality enshrined in the Charter of Rights and Freedoms,” says Toronto lawyer Lorne Waldman, one of the litigators handling the case and a member of the executive of the Canadian Association of Refugee Lawyers.

“With this law the federal government shows a flagrant disregard for these values, and for the basic rights of all Canadians. We are asking the court to strike the law down.”

The Minister of Immigration Chris Alexander vigorously defended Bill C-24 both when it was first introduced and as it was debated in Parliament.

…“The value of citizenship has never been more widely recognized as it is today, but it only has value because there are rules governing it,” Alexander told the Star last year, rejecting the growing criticism and opposition to the act.

“Citizenship of course involves rights and enormous privileges in Canada, but it also, for those of us born here and for naturalized Canadians, involves responsibilities.

“This act reminds us where we come from and why citizenship has value. When we take on the obligations of citizens we’re following in the footsteps of millions of people who came here and made outstanding contributions over centuries. And we’re celebrating that diversity, solidifying the order and rule of law we have here.”

But according to Waldman, the law doesn’t do that at all, but rather creates two classes of citizens, a profoundly unfair process and exposes many Canadians to not only losing their citizenship without due process but also their rights to move and travel out of the country.

…“All Canadian citizens used to have the same citizenship rights, no matter what their origins,” says Josh Paterson, executive director of the BCCLA. “Now this new law has divided us into classes of citizens — those who can lose their citizenship and those who can’t. Bill C-24 is anti-immigrant, anti-Canadian, and anti-democratic. It undermines — quite literally — what it means to be Canadian.”

This is fundamentally an issue of equality, Paterson says in an interview with the Star.

Court challenge slams new Citizenship Act as ‘anti-Canadian’ | Toronto Star.

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