Citizenship derived from parents is not automatic during transition from territory to “foreign nation” status
Statehood opponents in Puerto Rico argue that U.S. citizenship acquired during the territorial period can be passed to children born in Puerto Rico after it is no longer a U.S. territory. This is based on current federal naturalization statutes (i.e. citizenship laws) enabling foreign born children of U.S. citizens to acquire U.S. citizenship.
It’s misleading to compare US citizenship granted by Congress to foreign born children of US citizen as if it equates to US citizenship granted by federal territorial laws to persons born in a US territory. For people in territories national citizenship generally is determined under applicable federal territorial laws and treaties that define each jurisdiction’s legal status. Provisional territorial citizenship pending political status resolution generally is not derived from citizenship of parents.
Both territorial organic acts and federal naturalization laws Congress can impose conditions on acquisition and retention of U.S. citizenship granted by federal statute rather than by direct application of the U.S. Constitution. In all cases Congress can end future statutory conferral of U.S. citizenship by birth in a territory or birth to a U.S. citizen as it deems necessary in its discretion.
Thus, after the Panama Canal Treaty ended U.S. control of the Canal Zone, birth in the former American controlled zone no longer conferred citizenship, because that jurisdiction as defined by U.S. law ceased to exist. Passing US citizenship to children born in the Republic of Panama was subject to the power of Congress to make naturalization conditional under evolving statutory policies.
Similarly, birth in Puerto Rico would no longer give rise to U.S. citizenship “at birth” if it ceased to be a U.S. territory. That’s because those who acquired U.S. citizenship during the territorial period did so based on birth in the territory of Puerto Rico when it was subject to the power of Congress over territories under Article IV, Section 3, Clause 2 of the U.S. Constitution.
What if Puerto Rico chooses independence?
If Puerto Rico is reclassified as a sovereign nation (including a free associated state) the territory would cease to exist and federal naturalization law would have to be amended for birth in a sovereign Puerto Rico to confer U.S. citizenship, regardless of where duty of allegiance lies.
As with the U.S. territory of the Philippines and Canal Zone, termination of U.S. sovereignty and/or federal jurisdiction by treaty or statute normatively must provide for future termination of the conferral of U.S. citizenship “at birth.” That leads to a phase out of dual citizenship. Those who acquired U.S. nationality and citizenship during the territorial period also may be required to make an election between retention of U.S. citizenship or allegiance to the new nationality and citizenship of the former U.S territorial jurisdiction.
Myth of universal future citizenship for former U.S. territories
If there is a “myth” about U.S. citizenship in territories it is that 100% of the population of a former territory who acquired U.S. citizenship under federal territorial laws will have the same unconditional right as citizens in the states to pass their U.S. citizenship on to children born in the former territory once the territory ceases to exist.
How many former “U.S. nationals” in the Philippines and how many former “U.S. citizens” in Panama are able today to pass U.S. nationality or citizenship to children born in those former jurisdictions in 2018?
This is the context in which the terms “national” and “citizen” in the remaining U.S. territories must be defined and understood. That is because whether classified under federal territorial organic acts or U.S. naturalization laws, the legal status and rights of “nationals” and “citizens” in the territories are essentially the same.
That is to say that when Congress changed the political status and civil rights of residents in Puerto Rico from “nationals” of the U.S. and “citizens of Puerto Rico” to “U.S. citizens” in 1917, that did not actually change their status or rights while residing in Puerto Rico. Like “nationals” in the U.S. territory of the Philippines at the time and “nationals” in American Samoa today, applicable territorial organic acts provide unique forms of limited home rule in all territories. But constitutionally and at the national level all nationals and citizens in the territories have remained excluded from and were denied equal citizenship rights and representation compared to citizens in the states.
Only by leaving the territory and becoming resident and citizens of a state have those “nationals” in the territory reclassified as “citizens” based on birth in a territory under federal territorial statutes become full and equal “citizens” under the U.S. Constitution.
Want a precedent?
There is no constitutional distinction between “national” and “citizen” for Americans residing in a territory. Accordingly, the U.S. Supreme Court ruling upholding the 1946 act of Congress terminating “national” status for Filipinos in the states and the territory logically would apply to all “nationals” and “citizens” for residents of Puerto Rico or any other territory not incorporated into the union under the Constitution.
Thus, instead of hoping the Congress will treat Puerto Rico better than it has treated other former territories, the greater danger to liberty, democracy and freedom is lulling people into complacency, based on a false belief that rights have beed secured and duly-constituted when that is not true.
The truly pernicious myth is that U.S. nationality and citizenship rights arising under the U.S. Constitution in the states are the same as U.S. nationality and citizenship arising outside the states. Clearly, those who oppose statehood for Puerto Rico have devoted great effort to indoctrination of people in the territory this mythology, in order to deprive them of the knowledge needed to understand what legitimately to trust and what reasonably to fear as a person with U.S. citizenship based on birth in a U.S. territory.
Two sources of U.S. citizenship
To understand it is important to recognize there are two sources of U.S. nationality and citizenship.
Before the American Civil War the only source of U.S nationality and citizenship was whatever federal statutory law Congress might enact in the exercise of its power over “naturalization” (i.e. nationality and citizenship law) under Article I, Section 8, Clause 4 of the U.S. Constitution. Before the Civil War federal law provided for immigrants to acquire national citizenship, and recognized citizens of the states as U.S. citizens
After the Civil War under Section 1 of the 14th Amendment only those born or naturalized in a state acquire both U.S. nationality, i.e. national citizenship, and citizenship of any statue of residence. Only national and state citizenship combined secure equal civil rights and representation in Congress and the Electoral College.
The 14th Amendment did not repeal the naturalization power of Congress under Art. I, Sec. 8, Cl. 4. That power of uniform naturalization and statutes enacted by Congress in the exercise thereof remain the only source of citizenship for those not born or naturalized in a state and made full equal citizens constitutionally by operation of the 14th Amendment.
To assert that the children of all U.S. citizens “derive” citizenship from any U.S citizen parents is wrong. That’s because derivative citizenship exists only under federal statute, not under the U.S. Constitution.
That means that all forms of derivative citizenship created by statute can be ended by statute. Just as all forms of territorial status created by statute can be ended by statute, continued conferral of statutory citizenship in a current for former territory can be ended.
The terms and conditions for transition prescribed by Congress may vary, but the end result is that universal dual nationality and citizenship will be phased out if territorial status ends in favor of any status other than statehood.
Based on the fraudulent ideology of “autonomy” Puerto Rico wasted 75 years pursuing separatism instead of incorporation. If the U.S. decides Puerto Rico does not want or deserve statehood, it will become even more difficult if not impossible to secure equal rights of citizenship available under the U.S. Constitution.
Equal rights in America are not based on national citizenship alone, but only on U.S. nationality and citizenship coupled with state citizenship. That is why the national citizenship clause in the 14th Amendment includes the state citizenship clause, and both clauses appear in tandem.
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