2. What Did the Constitution Say about Citizenship?: In 1789, the Constitution was silent on who is to be considered a citizen of the United States, but did empower the Congress in Article I, Section 8, to "establish an uniform Rule of Naturalization". A specific reference to citizenship was made, however, in Article II, which states that "No person except a natural born Citizen, or a Citizen of the United States at the time of the Adoption of this Constitution, shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have Attained to the age of thirty-five Years, and been resident fourteen Years within the United States". This language is intriguing because it clearly implies that Americans would be living overseas.
 

3. When Was Citizenship First Defined?: When the First Congress enacted the first citizenship law in 1790, the question of the status of children born abroad to a U.S. citizen parent was explicitly addressed, and in the following terms:
 

"And the children of citizens of the United States that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States". (Act of March 26th, 1790, 1 Stat. 103).

It is noteworthy that this first definition of citizenship and the naturalization process, enacted by the First U.S. Congress, specifically recognized the automatic acquisition of U.S. citizenship by children born abroad to a U.S. citizen father, provided only that the father had ever been previously a resident in the United States. Even more noteworthy is that all such children were to be considered "natural born" citizens at birth abroad.
 

Thus, while the Constitution was mute on the intent of the country's founders in terms of who is to be defined as a citizen at birth, a majority of the Members of the First Congress made it clear that such citizenship could be acquired both at home and abroad. Given that many of the Members of this First Congress were active participants in the deliberations for the drafting and adoption of the U.S. Constitution, there can be little doubt that what they were expressing in this first citizenship law was indeed the intent of the Constitution's authors themselves.
 

4. What Has Happened Since 1790 in the Definition of U.S. Citizenship and the Citizenship of Children Born Abroad?: Citizenship was defined for the first time by the Constitution following the Civil War when the Fourteenth Amendment was ratified in 1868. This amendment states:
 

"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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty or property without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."(14^th Amendment, Section 1, ratified July 9, 1868).
 

Congress continued to address the citizenship of children born abroad in a manner similar to that adopted by the First Congress and this remained the basic policy until eventually, in 1934, U.S. citizen mothers achieved parity with U.S. citizen fathers in the ability to transmit citizenship at birth to children born abroad.⁽¹⁾
 

5. The Big Change in 1940: The Congress carried out a major overhaul of U.S. citizenship laws in 1940 and took away from overseas Americans many of the human rights guarantees that they had enjoyed up until then. The law became much less uniform and various forms of overt discrimination were introduced, many of which linger on. It is this legacy that is currently causing considerable problems for the several million U.S. citizens living and working abroad today.
 

6. The Demographic Dimension of the Problem: According to the only known survey ever carried out by the U.S. State Department on the number of children born abroad to a U.S. citizen parent, which was carried out in 1982, approximately 40,000 children were born abroad the previous year (1981) to a U.S. citizen parent. Of these: 21,600 (54%) acquired U.S. citizenship at birth abroad to parents, both of whom were U.S. citizen parents; 14,400 (36%) acquired U.S. citizenship at birth abroad to parents, only one of whom was a U.S. citizen; and 4,000 (10%) were denied U.S. citizenship because although one parent was a U.S. citizen, this parent did not meet the then current qualifications necessary to transmit citizenship to the child born abroad. In other words, one out of every ten children born abroad to a U.S. citizen parent in 1981 was denied U.S. citizenship at birth. Some of these were actually born stateless because the other parent was also unable to transmit citizenship of another country either. At the time that this survey was carried out, the State Department estimated that approximately 2 million U.S. citizens were living abroad. Today, the State Department estimates that more than 4 million U.S. citizens now live outside of the United States.
 

7. Issues Raised by Current U.S. Citizenship Laws: The complexity of the current U.S. legislation and regulatory interpretation of U.S. citizenship law causes a number of concerns to overseas U.S. citizens. These are discussed below.
 

8. Does Current U.S. Citizenship Law Fully Conform to the Spirit and Intent of the UN Declaration of Human Rights?: The United States played a widely recognized and admired role in the drafting of the Universal Declaration of Human Rights. According to this Declaration, governments commit to: treat all of their citizens equally; abstain from discriminating against any minority group; promote the family as the basic element of society; and guarantee all children at birth the right to a name and a nationality. Current U.S. citizenship law violates this overall commitment to equal treatment by discriminating against U.S. citizens living abroad.
 

Other Specific Commitments in the Universal Declaration of Human Rights: Other relevant sections of this Declaration, adopted by the General Assembly of the United Nations on 10 December 1948, include:

"All human beings are born free and equal in dignity and rights." (Article 1)

"Everyone is entitled to all the rights and freedoms set forth in this Declaration, without distinction of any kind, such as race, color, sex, language, religion, political or other opinion, national or social origin, property, birth or other status. Furthermore, no distinction shall be made on the basis of the political, jurisdictional or international status of the country or territory to which a person belongs, whether it be independent, trust, non-self-governing or under any other limitation of sovereignty". (Article 2)

"All are equal before the law and are entitled without any discrimination to equal protection of the law. All are entitled to equal protection against any discrimination in violation of this Declaration and against any incitement to such discrimination." (Article 7)

"Everyone has the right to leave any country, including his own, and to return to his country". (Article 13)
 

"Everyone has the right to a nationality. No one shall be arbitrarily deprived of his nationality nor denied the right to change his nationality". (Article 15)
 

"Men and women of full age, without any limitation due to race, nationality or religion, have the right to marry and to found a family. They are entitled to equal rights as to marriage, during marriage and at its dissolution. The family is the natural and fundamental group unit of society and is entitled to protection by society and the State." (Article 16).
 

"Motherhood and childhood are entitled to special care and assistance. All children, whether born in or out of wedlock, shall enjoy the same social protection." (Article 25)

These specific promises are not being fully respected in current U.S. citizenship laws as they pertain to U.S. citizens living overseas and their children born abroad.

9. Does Current U.S. Citizenship Law Fully Conform to the Spirit and Intent of the UN Convention on the Rights of the Child? Current U.S. citizenship laws also do not conform to the commitments undertaken by countries which have recognized the UN Convention on the Rights of the Child which was adopted unanimously by the General Assembly of the United Nations on 20 November 1989. Clauses of this Convention which are not being respected by the United States today include:
 

"States Parties shall respect and ensure the rights set forth in the present Convention to each child within their jurisdiction without discrimination of any kind, irrespective of the child's or his or her parent's or legal guardian's race, color, sex, language, religion, political or other opinion, national, ethnic or social origin, property, disability, birth or other status." (Article 2)
 

"States Parties shall undertake all appropriate legislative, administrative, and other measures for the implementation of the rights recognized in the present Convention." (Article 4)

"The child shall be registered immediately after birth and shall have the right from birth to a name, the right to acquire a nationality and, as far as possible, the right to know and be cared for by his or her parents. States Parties shall ensure the implementation of these rights in accordance with their national law and their obligations under the relevant international instruments in this field, in particular where the child would otherwise be stateless." (Article 7)

"States Parties undertake to respect the right of the child to preserve his or her identity, including nationality, name and family relations as recognized by law without unlawful interference." (Article 8)
 

10. Why Don't We Respect International Commitments to Human Rights? One major infirmity of these two international human rights documents is the lack of a clear definition of which government is to be held responsible for guaranteeing the human rights of the children born to expatriates outside of the territorial limits of their home countries? Is it their home country, or their host country?
 

There is no commonly accepted definition of citizenship in the world today, nor how and where it is to be acquired. Some countries use a jus sanguinis standard which gives preference to the blood ties binding the parent and the child. Others, notably the United States, give greater weight to a jus soli standard whereby citizenship is determined by the location of birth rather than by the citizenship of the parent(s).
 

Finally, many countries, including the United States, use a mix of these two principles, but this mix can lead to greater protection for some citizens and discriminatory treatment for others. Such is the case with U.S. legislation today.
 

Although the U.S. Government played an important role in the drafting of these UN documents, it has so far not assumed the full responsibility for extending all of the relevant human rights guarantees to all of its citizens. Some U.S. citizens are being left out and have to live with second class rights for themselves and their children.
 

11. How Has the Law Evolved Since 1790? The history of U.S. citizenship law and how it applies to U.S. citizens living abroad and their children born abroad, shows an evolution toward eventually extending the same privileges to U.S. citizen mothers as had been enjoyed from the beginning to U.S. citizen fathers. Some additional requirements for actions after birth abroad to maintain citizenship were also added. (See Annex 1, US Citizenship Law and Overseas Americans, An Historical Summary).
 

12. When Did the Current Difficulties Begin? The evolution of U.S. citizenship law as it applies to overseas Americans shows a considerable amount of affection and indulgence on the part of the U.S. Government toward its citizens living away from home during the 150 years after the enactment of the first U.S. citizenship laws, and then an extraordinary change of direction and a hardening of heart.
 

In 1940, a new Immigration and Naturalization law abandoned uniformity and simplicity and instituted a new definition of citizenship acquisition abroad based upon a quixotic set of tests of "nexus".
 

Although these draconian changes have been somewhat attenuated since 1940, as will be shown below, there is no longer anything simple or uniform about how citizenship is defined for children born abroad. Nexus calculations today include among other things considerations such as the choice of an employer, the nationality of a spouse, or even whether or not you are married at the time of a birth abroad. Today there are novel forms of prejudice and inequality in the law that are quite alien to the benevolence of the founding fathers and their successors for the first hundred and fifty years of our country's history. Bizarre rules of nexus to the United States take precedence over the sacred tie between a parent and a newborn child. This threat to the integrity of the overseas American family is shameful and out of keeping with the more meritorious human rights accomplishments of the United States.
 

13. Defining and Calculating Nexus: Although the text of the immigration and naturalization statutes does not specifically address "nexus", nor does it define just what this is supposed to mean, the concept is implicit. The necessity for overseas American citizen parents to manifest "nexus" to qualify for human rights is invoked by the State Department, the Immigration and Naturalization Service, and others when called upon to justify current discrimination in the law. "Nexus" is very much alive, and overseas Americans are very much concerned by its calculus. Currently there are rules not for how sufficient "nexus" can be acquired, and what bookkeeping is required to demonstrate that this has been acquired, but by implication there is even the possible retroactive loss of "nexus" that can occur long after a birth has taken place.
 

A. Nexus for Births at Home: The 14th Amendment to the Constitution guarantees that "All persons born in or naturalized in the United States, and subject to the laws thereof, are citizens..". Under these "jus soli" rules, no matter what the citizenship of the parent(s) may be at the time of birth of a child, "nexus" is defined by the mother's physical position on our planet when she gives birth. Thus one form of acceptable "nexus" is simply a function of latitude and longitude. It is unrelated to any time the parent(s) may have previously lived in the United States, or any allegiance of either parent to the United States. Some refer to this as "checkbook nexus" because those with sufficient resources for a plane ticket can acquire it with no additional effort.
 

B. Nexus for Births Abroad: "Nexus" has a more elusive and quixotic nature in the case of a child born abroad. Under current rules, some U.S. citizen parents have sufficient amounts to transmit citizenship automatically to their children at birth abroad. Others do not. The amount of "nexus" an overseas American parent requires varies according to a U.S. citizen's marital status, employer, nationality of spouse, etc. Some interesting variations on the theme of "nexus" are described below.
 

C. One Day "Nexus" Chidren: If both of the parents are U.S. citizens, and are married, a child born abroad is a U.S. citizen at birth if either of the parents has ever resided in the United States, no amount of time specified. This "nexus" can be acquired in one day in the United States by one U.S. citizen. (Note: a recent statement from the State Department suggests that even one day is no longer required for a birth abroad to two U.S. citizen parents.)
 

D. One Year "Nexus" Children: A child born abroad is a U.S. citizen at birth if an unmarried U.S. citizen mother has previously lived in the United States for one non-continuous year, at any age. This "nexus" accumulates during 365 days of physical presence in the United States. If the mother does not meet this prior residence test, her child will not only not be American, but may well even be stateless.

E. One Year "Nexus" Children Might Become Five Year "Nexus" Children If an Unwed Mother Marries the Father of the Child: Something very peculiar might happen to "nexus" at the moment when an unmarried U.S. citizen mother marries an alien father of a child born abroad. If, before the child born overseas reaches the age of eighteen, the unmarried U.S. citizen mother marries an alien spouse who acknowledges paternity of the child, the child could as of that moment lose his/her previously earned U.S. citizenship because marriage might retroactively trigger a different set of "nexus" rules as indicated below. In this case, marriage could turn "nexus" into "non-nexus". Although State Department officials claim that they do not interpret the law today in this manner, the law suggests that there could be a "nexus" bonus for birth out of wedlock, and a "nexus" penalty for the subsequent marriage of an overseas child's parents.

F. Five Year "Nexus" Children: In the case of a U.S. citizen married to an alien, a child is a U.S. citizen at birth abroad only if the U.S. citizen parent, or a U.S. citizen grandparent, has previously lived in the United States for five years, at least two of which after the age of fourteen years. This type of "nexus" accumulates very slowly during five full years of physical presence in the United States. Paradoxically, a U.S. citizen parent or grandparent could have lived the full first fifteen years of his/her life in the United States and still not qualify under current rules. And, as mentioned above, this "nexus" has to be five times as large if the U.S. citizen is married to an alien than if the parent is unmarried. The implied will of Congress seems to have been to impose a significant marriage penalty in "nexus" terms.
 

G. Virtual U.S. Soil "Nexus" Children: Another variety of "nexus" applies to U.S. citizen parents if they themselves have previously lived abroad as children in the household of a U.S. citizen parent who either worked for the U.S. Government, or for an international organization mentioned on an officially approved list. In this case, these years lived abroad by these parents count as if they had been physically present in the United States to accumulate "nexus" under the rules of all of the paragraphs above. If their U.S. parent had decided to retire on the wrong date, or changed to a job into the private sector, but continued to live abroad, their subsequent residence abroad would no longer have earned them this special "nexus" credit. There is a "nexus" bonus for working for the U.S. Government, or for certain international organizations, and a "nexus" penalty for choosing the wrong employer or being an entrepreneur abroad. Why?

14. Peculiar "Nexus" Anomalies: Current U.S. laws not only lack uniformity in the treatment of U.S. citizens, they also introduce some curious anomalies. While the imposition of a requirement for "nexus" may be virtuous, the devil has made a comfortable home in the details. Here are some of the peculiar anomalies:
 

A. "Nexus" has no Apparent Link to "Patriotism": Granting that Congress might have a legitimate concern for "nexus" in the transmission of citizenship, one might expect to find a minimum uniform requirement for "nexus" as a calculus of patriotism, or love of country, or knowledge of country, or even willingness to die for country, or at least something of a similar nature. But this obviously is not the case because the most minimalist form of "nexus" can be acquired by any alien by merely being present on U.S. soil for only a few minutes prior to the birth of a child. Indeed, the parent could be in the United States as an avowed enemy of everything the U.S. stands for and it this doesn't matter at all. None of the "nexus" factors listed above are explicitly mentioned in the law, and no quantification or qualification of any of these factors has ever even been mentioned to justify the need for "nexus" for citizenship transmission purposes. Indeed, the Fourteenth Amendment to the Constitution would make them otiose.
 

B. "Nexus" as a Quantum Function: Different varieties of "nexus" involve totally different quanta of precisely measured previous residence time in the United States. One does not have just more, or less, "nexus". It is something that has to be accumulated in a specifically defined amount. It can be acquired instantaneously, by some, in one day by others, in one year by others, and for some at least five years are necessary. Be short one day, however, in any of these categories and "nexus" simply does not occur. And, as mentioned above, because of a time slot provision, some citizens can actually live in the United States for more than fifteen years, move abroad, and still fail to have acquired enough "nexus" to share their U.S. citizenship with a child born abroad.
 

C. The Instability of "Nexus": The quantum of "nexus" that U.S. citizens need to accumulate to transmit citizenship to children born abroad has not been stable throughout the history of the United States. During the first one hundred and fifty years of our republic, all U.S. citizen fathers gained sufficient "nexus" with merely one day of prior physical presence in the United States. In 1934, this also became the sole "nexus" quantum required for all overseas U.S. citizen mothers as well. Then something remarkable happened in 1940. "Nexus" suddenly was no longer a function solely of the individual but became a much more complicated concept involving the existence and nationality of a spouse. Those who had married aliens henceforth needed a prior physical presence in the United States "nexus" quantum of ten years, five of which after the age of sixteen; which a few years later became ten years, five after the age of fourteen; then five years, two after the age of fourteen, and so on. From something simple and stable, "nexus" morphed into something highly malleable and unstable, changing size with remarkable speed and frequency.
 

D. "Nexus" Inadequacies of Military Service: While pregnant aliens visiting the United States can acquire sufficient "nexus" in one day, some U.S. servicemen stationed abroad have not been able to accumulate enough "nexus" before leaving the United States, cannot earn it abroad, and can end up with stateless children of their own. A recent story in the "Stars and Stripes" told of an alien serving in the U.S. Army whose child was born while he was on duty in West Germany. As both the father and the mother failed the "nexus" test, the child was born stateless. Had this soldier not been serving as a volunteer in the Army, and had he remained in the United States, his child would have been born a U.S. citizen. This "nexus" test is not easy to understand.
 

E. "Nexus" Inadequacies of Those Who Give Their Lives For Their Country: The untimely death of a soldier can also generate "nexus" problems for his progeny. A Master Sergeant in the U.S. Army died in combat in Vietnam in 1966. He was awarded two Purple Hearts, several Army Commendation Medals, a Presidential Citation, and the Air Medal. He volunteered to return to Vietnam for a second tour because he wanted to serve his country. Several years later, when his daughter who gave birth to a child abroad went to the U.S. Embassy in Switzerland to register the birth, she was told the child was not eligible to be a U.S. citizen. Although she had lived in the household of her father for seventeen and a half years as an Army dependent, five of those had not been after the age of fourteen as the law then required. He died before she turned nineteen. The years after his death when she lived abroad with her mother were no longer "nexus" years. Because her father died at a wrong "nexus" moment, his daughter's "nexus" expired in the overseas household of a widow. This also is a form of "nexus" that is very difficult to understand.
 

F. Soil vs Blood Nexus: Some argue that the "nexus" between a parent and a child is so sacred that it should rank first among all of the privileged human relationships that deserve to be promoted and protected by the laws of every country. Sadly, the United States does not subscribe to this concept. U.S. law assigns a higher rank to latitude and longitude "nexus" than to the umbilical cord. Rather than cherish and protect the link between a parent and a newborn child, the United States today actually builds and enforces barriers in some of these relationships. This also does violence to the concept of basic human rights and is very hard to understand.
 

G. "Nexus" by Lottery: Although the United States has justifiably earned a reputation throughout the world as a leading light in the promotion of human rights for others, its generosity toward foreigners and its hard-heartedness toward some of its own citizens is astonishing. Consider: each year tens of thousands of green cards are given away by lottery to foreigners with no previous "nexus" of any kind to the United States. Children who will be born in the USA to these lucky green card winners will automatically acquire U.S. citizenship at birth, with no other "nexus" ifs, ands or buts. Of course, by definition, they are indeed winners.
 

15. Some Conclusions: Discrimination in the granting and protecting of the human rights of any child born to a U.S. citizen parent should not be the policy of the United States. Current law and the "nexus" muddle used in its justification raise a hairball of embarrassing questions which are very difficult to answer. Take a few such as: Why should the human rights of some U.S. citizen parents be greater than those of others? What is it about some of our children born abroad to a U.S. citizen parent that threatens the United States more than children born in the United States to alien parents? Why should human rights depend upon a career choice, or the choice of an employer? Why is it easier to be a citizen if one is born out of wedlock than if the parents are married? Why do human rights increase if an American quits a job in the private sector overseas to go to work for the U.S. government instead? The list of confusion and shame goes on.

16. How Difficult Would it Be to Solve This Problem?: Legislation to give all Americans an equal right to transmit U.S. citizenship to their children automatically at birth has already been drafted and was introduced during the 102^nd Congress, 2^nd Session on October 6^th, 1992 as HR 6189. A copy is reproduced on the following page. This remedial legislation would be an appropriate way to redress this grievance.
 

_________________________________

H.R. 6189

IN THE HOUSE OF REPRESENTATIVES

102^nd Congress, 2^nd Session

October 6 (legislative day, October 5), 1992

Mr. ALEXANDER introduced the following bill; which was referred to the

Committee on the Judiciary

_________________________________

A BILL

To amend section 301 of the Immigration and Nationality Act.

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That this Act may be cited as the "Equal Human Rights for All American Children Act of 1992".

Sec. 2. Section 301 (8 U.S.C. 1401) is amended by inserting "natural born" after "nationals and".

Sec. 3. Subsection (a) of section 301 (8 U.S.C. 1401(a) is amended by inserting ", or in an outlying possession thereof" after "United States".

Sec. 4 Subsection (b) of section 301 (8 U.S.C. 1401(b) is amended by inserting ", or in an outlying possession thereof" after "United States".

Sec. 5. Subsection (f) of section 301 (8 U.S.C. 1401(f) is amended-

(a) by inserting ", or in an outlying possession thereof" after "found in the United States"; and (b) by striking out "twenty-one" and inserting in lieu thereof "six".

Sec. 6. Subsection (g) of section 301 (8 U.S.C. 1401(g) is amended-

(a) by striking out "one of whom is an alien and the other" and inserting in lieu thereof "at least one of whom is"; and

(b) by striking out all after "a citizen of the United States".

Sec. 7. Section 301 (8 U.S.C. 1401 is amended by repealing subsections (c), (d), and(e), and by redesignating subsections (f) and (g) as subsections (c) and (d) respectively.

Sec. 8. Section 301 (8 U.S.C. 1401) is amended by inserting the following new subsection after new subsection (d):

"(e) This section shall apply to persons born on or after May 14, 1934, to the same extent as if it had become effective in its present form on that date."
 
 

1.

¹ See Annex 1, An Historical Summary of U.S. Citizenship Laws and Overseas Americans.