Legal Commentary

By Evelyn Cruz, ASU

Proponents of Arizona HB 2561 argue that the 14th Amendment was enacted to bestow citizenship only to individuals who did not owe allegiance to any other country. And since a dual citizen has rights in more than one country, then his or his off-spring does as well. Therefore the offspring fails the "subject to the jurisdiction" requirement because he is also subject to his parent?s country of citizenship. Dual citizens, the argument goes, are not truly American subjects.

But this misconstrues the reality that dual-citizens in the United States are not treated any different from citizens who do not have a second citizenship. (David S. Gordon, Dual Nationality and the United States Citizen, 102 Mil. L. Rev. 181 (1983)) The dual-citizen cannot request to contact the consul of his second nationality if arrested. The dual-citizen cannot invoke the second citizenship if drafted into the Army. It is only when the individual leaves U.S. soil that the dual-citizenship comes into play, for instance when fighting extradition from the second nationality country back to the United States. (William Branigin, France Rejects Extradition for U.S. Killer, Ruling Outrages American Officials Washington Post (December 5, 1997))

Proponents of the birthright bill also interlace dual-citizenship with undocumented status. While their rhetoric purports that the bill will end the ability of children of undocumented immigrants to gain U.S. citizenship, the language of the bill strips the rights of dual-citizens as well as undocumented aliens. It associates what has for the most part been an inconspicuous segment of our society with another that has become the center of much controversy. It takes us down a dangerous path that may lead (some may argue that it already has) to a belief that multi-cultural privileges are unpatriotic and repugnant to an American way of life.

The view that sole loyalty defines membership in a state is out of step with modern international relations. Professor Spiro published a book in 2008 noting that globalization had brought about a change in the treatment of dual citizenship from a rare occurrence to a common reality. (Peter J. Spiro, Beyond Citizenship: American Citizenship after Globalization Oxford Press: 2008) More and more individuals posses dual or triple nationalities (if not citizenships) permitting them to tap into opportunities in multiple countries. To some nations, dual citizens have become lucrative economic development partners. China encouraged British dual citizens to remain in China after Hong Kong was returned to them by the British. (John Dodsworth and Dubravko Mihaljek, Hong Kong, China: Growth, Structural Change, and Economic Stability During the Transition, Industrial Monetary Fund Press: 1997) Mexico amended its constitution in 1996 to allow Mexican nationals naturalized in another country and children born abroad to Mexican citizens to retain Mexican nationality. The ability of dual-national Mexican-Americans to buy land in Mexico without restriction has fueled construction in coveted retirement areas in Mexico. (Seven W. Bender, RUN FOR THE BORDER: VICE AND VIRTUE IN U.S.-MEXICO BORDER CROSSINGS forthcoming)

Dual-citizenship is not an uncommon phenomenon in our country. Many countries, permit generations of descendants born abroad to apply for citizenship. Some do not require a renunciation of the birth country?s citizenship. (Patrick Weil. Access to Citizenship: A Comparison of Twenty Five Nationality Laws, in CITIZENSHIP TODAY: Global Perspectives and Practices, Aleinikoff and Klusmeyer ed. 2001) Therefore, a fair number of Americans could be dual citizens if they pursued the procedural requirements imposed by their ancestral homelands. So that person wearing the "Kiss me I?m Irish" may actually have rights to Irish citizenship, and his child could be stripped of U.S. citizenship if HB 2561 was upheld.

Dual-citizenship, as Professor Spiro, and other citizenship experts can attest, is quite complex. There are often inequalities in rights between the two citizenships. Some countries, like the United States, give citizenship rights to children of expatriates. The minor can move to the United States and vote. Mexico, which splits citizenship rights from nationality rights, only gives nationality to the children of expatriates. The derivative national cannot vote in Mexico.

The attempt to define the 14th amendment?s "and subject to the jurisdiction thereof" clause to mean that children of dual citizens are not U.S. citizens by birth advances a negative ideograph of dual citizenship. It pins those who see dual citizenship as means of continuing a connection to an ancestral homeland, or as means to keep open future opportunities, against those who see dual citizenship as a form of bigamy, a dilution of U.S. citizenship. It makes me wonder if perhaps someday the "Kiss-me I?m Irish" T-shirt will become an oppositional visual ideograph like the Mexican flag is today.