Hawaii Citizenship Controversy Watched By All Territories

The case of a U.S. national from American Samoan denied eligibility for voting and public office in Hawaii has raised questions about the legal nature of U.S. nationality and citizenship in all the American territories, including Puerto Rico. Considerable confusion has arisen in the discussion and debate related to this case.

Sai Timoteo, a candidate for Congress, is an American Samoan national rather than a U.S. citizen. In that case a promising candidate who failed to apply for reclassification as a U.S. citizen incorrectly declared that she was a citizen when registering to vote and filing to run for public office.

When she was disqualified there were demands that “Colonialism and racism must end! All Americans must be treated equally no matter where they were born or where they live!”

Of course, demands that Americans in the territories have the same citizenship rights as Americans in the states are based on ignorance of the American system of constitutional federalism. Instead of pandering to civic illiteracy those who advocate informed self determination for territories need to recognize the real problems and real solutions for territories.

For example, the requirement of U.S. citizenship to vote or run for state or federal office in the modern era is not a manifestation of U.S imperialism, colonialism or racism as practiced in the U.S territories by Congress and the federal courts 120 years ago. Rather, it ensures that rights of both national and state citizenship unite rather than divide the nation.

To help clarify the issues, here is a summary of relevant U.S. nationality and citizenship law as it relates to birthright citizenship in the states and territories.

Constitutional citizenship

There are two sources of birthright citizenship. Under Section 1 of the 14th Amendment to the U.S. Constitution there is a national and state citizenship clause that gives all persons born in a state of the Union U.S. national citizenship and citizenship of any state in which a U.S. citizen is a legal resident under federal and state law. This national citizenship clause includes the state citizenship phrase because that ensures every person with national citizenship also has the right to live and vote in a state.

That’s important because the right to vote in federal elections is a right of national citizenship that can only be exercised through eligibility to vote in a state. This is the the lynchpin of the American system of constitutional federalism, because it gives all states the same power and right of government by consent based on equal state representation in the Senate and population based representation in the House of Representatives. The same combination of equal state by state and population based representation in the Electoral College that elects the President and Vice President.

Under the 14th Amendment the words “nationality” and “citizenship” mean the same thing, but the word “citizenship” was used because the phrase refers to both national and state “citizenship.” As a matter of technical legal terminology use of “nationality” instead of “citizenship” was necessary because there is no state “nationality.”

The U.S. national citizenship clause also applies to U.S. territories that have been incorporated into the union as a step leading to statehood. However, the provisions in Article I and Article II of the Constitution providing for voting rights in federal elections for equal representation in Congress do not apply until admission as a state.

Statutory citizenship

The second source of birthright U.S. citizenship is federal statutory law under which Congress grants citizenship “at birth” to persons who do to acquire it under the national and state citizenship clause included in the Constitution under Section 1 of the 14th Amendment as discussed above. Before the 14th Amendment was added to the Constitution after the Civil War, the only source of citizenship was a federal statute adopted by Congress under the uniform naturalization clause in Article I, Section 8 of the original Constitution.

In the period since the 14th Amendment created a constitutional right to U.S. citizenship for those born in a state, the Congress has limited most statutory birthright citizenship to persons born outside a state of the union but with a U.S. citizen parent. This includes children of Americans born in foreign countries or international waters and airspace.

Congress also has granted U.S. citizenship “at birth” to persons born in “unincorporated” territories ruled under U.S. national sovereignty but not in a state. That includes persons born in Puerto Rico, Guam, Northern Mariana Islands and U.S. Virgin Islands. The term “U.S. nationality” applies to all persons born in all U.S. territories, but persons born in those four territories are also classified by Congress as “citizens.” Persons born in American Samoa have U.S. nationality but are classified by Congress as “nationals” not “citizens.”

Nationality vs. Citizenship

This means with regard to federal statutory law there is a difference between “nationality” and “citizenship” based on birth in U.S. territories. However, the difference is so limited it is almost a distinction rather than a difference.

To be specific, whether classified as a “national” in American Samoa or a “citizen” in the other four territories, Americans in the unincorporated territories do not have federal voting rights allocated by Article I and Article II of the Constitution only to the states of the union. However, the U.S. nationals from Puerto Rico, Guam, Northern Mariana Islands and U.S. Virgin Islands who have been classified “citizens” acquire full equal rights of U.S. citizenship upon becoming residents of a state. In contrast, U.S. nationals from American Samoa who have not been classified as “citizens” must apply for re-classification as “citizens” to acquire full equal rights of U.S. citizenship upon becoming residents of a state.

This truly is a distinction without a difference, and it no doubt would be limited by Congress if the people of American Samoa requested and petitioned through their democratic process of self-determination and local self-government. For example, without changing federal political and legal relations between American Samoa and the U.S. a federal statute could be passed simply stating as follows:

“Any person who is a U.S. national based on birth in American Samoa establishing legal residence in any state shall have the same civil rights and political status and rights under federal and state law as persons with U.S. citizenship based on birth in Puerto Rico, Guam, Northern Mariana Islands or the U.S. Virgins Islands while residing in any state.”

Natural Born Citizens

Finally, the term “natural born citizen” appears as a qualification for serving as President or Vice President under Article II of the U.S. Constitution. It includes U.S. citizenship acquired at birth under both federal constitutional and statutory citizenship law.

Prior to advent of the 14th Amendment all Presidents were “natural born citizens” only if they acquired citizenship “at birth” under a federal statute. In modern times, Barry Goldwater, John McCain and former Governor of Puerto Rico Luis Fortuno were all deemed eligible to run for President or Vice President as “natural born citizens” based on federal statutory birthright citizenship. The same is true of any other presidential candidate who acquired citizenship “at birth” to a U.S citizen parent outside the U.S. or in a U.S. territory in which Congress has conferred that status.

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