Emails, Christopher McKnight Nichols, assistant professor of history, Oregon State University
Aug. 31, 2015
Professor Nichols:
Good morning. I write with urgency because we're trying to fact-check this claim by Sen. Ted Cruz: "It has been the law since the beginning of the country that the children of American citizens born ... abroad are American citizens by birth."
Mindful that you've taught a course drilling into the origins of U.S. citizenship, I am hopeful you can help us get a historical grip on Cruz's statement.
?
W. Gardner Selby
Reporter / News
Austin American-Statesman
-----Original Message-----
From: Christopher Nichols
Sent: Monday, August 31, 2015 10:43 AM
To: Selby, Gardner (CMG-Austin)
Subject: Re: [College of Liberal Arts] Urgent inquiry for a fact
check of Sen. Ted Cruz
Dear Gardner,
Understandings of citizenship have changed so dramatically since the
late 19th century, in terms of who is included or excluded,
particularly by race and gender, and in terms of the documentary
record required to "prove" citizenship (recall that before the 20th
century birth records, driver's licenses, etc. were few and far
between, just "attesting" to a clerk in a small community often could
be enough to establish citizenship), as to make early laws on this
issues seem almost unrelated to contemporary discussions of the topic.
Despite radical changes in the legal and cultural understanding of
citizenship Cruz is essentially accurate. Since the Naturalization
Law of 1790 it is clear that Congress attempted to establish a
citizenship right for children born of citizens abroad.
The Naturalization of Law of 1790 was the first to make explicit that
the children of American citizens (which at the time could generally
not include those other than "free, white persons" of "good character"
individuals - and in most ways excluded women, except with regard to
giving birth to citizens), and it detailed that this citizenship
status could not descend those whose fathers were "aliens" who had
never resided in the U.S. The path to citizenship then for a free,
white immigrants was just two years (later extended to five years in
1795 as anti-immigrant sentiments flared).
The 1790 law, and most of this era, was deliberately vague about the
citizenship status of those born in the U.S. Why? The idea here, as
scholars argue, was that the path to American citizenship was "creedal"
-- that is, one became a citizen by choice, not simply by descent.
Still this only applied to free, white immigrant men of good
character. This
1790 law also was the first use of the term "natural born citizens"
-- after this the laws of citizenship were gradually broadened in a
series of laws to be more inclusive and to require more documentation
regarding birth place and parentage.
It is the 14th Amendment and the post-Civil War era is a better
historical period to start a discussion of this issue because it is
with the 14th amendment that domestic citizenship status was
clarified to include all born in the U.S. regardless of parentage or
race. Except, even in this case, there were exclusions: indigenous
peoples and the children of ambassadors and foreign ministers.
Enforcement of citizenship often fell to the lowest of levels of
government via federalism and thus citizenship rights could be
deprived without recourse to the federal government (thus, in part,
the process culminating in the CRA and VRA, 1964, 1965).
--
On 8/31/15 9:52 AM, Selby, Gardner (CMG-Austin) wrote:
Appreciated. I see a 1795 act superseded the 1790 law, perhaps only
in certain respects?
g.
On 8/31/15 9:58 AM, Christopher Nichols wrote:
Yes indeed, the 1795 Act just changed a few details -- made the time
required for residence five years (not two), added word "moral" to
"good character" and enacted a few other modest changes. There also
was an Act in 1798, again minor tweaks (up to 14 years for residency)
... and other laws continued to make modest changes (1802 ...).
From: Christopher Nichols
Sent: Monday, August 31, 2015 12:23 PM
To: Selby, Gardner (CMG-Austin)
Subject: Re: [College of Liberal Arts] Urgent inquiry for a fact check of Sen. Ted Cruz
Dear Gardner -- One more reply as I consider this topic. Thanks again for reaching out to me.
As a point of fact check I would say the Cruz statement is accurate and "mostly true" but taken out of context, which makes the claim somewhat deceptive considering how dramatically legal, political, and cultural understandings of citizenship have changed since the dawn of the United States.
Best,
-Chris
On 8/31/15 10:56 AM, Selby, Gardner (CMG-Austin) wrote:
Thanks. For the moment, I am struggling with whether derivative citizenship, especially through mother-citizens, was considered the U.S. law from 1790 on. Dean Trasviña at the USF School of Law pointed me to this article indicating not--and maybe that it wasn't settled, by law, until amendments were adopted by Congress in 1934.
Thoughts?
Other resources?
g.
1:24 p.m.
I agree that it is not entirely clear nor is there a precise consensus among scholars, but I would note the US government archives on this, as follows:
"'derivative' citizenship was granted to wives and minor children of naturalized men. From 1790 to 1922, wives of naturalized men automatically became citizens"
(*archives.gov cites a 1998 article, overall it is a useful site) for more see:
http://www.archives.gov/research/naturalization/naturalization.html
John Higham's Strangers in the Land and Mae Ngai's Impossible Subjects suggest that long-standing U.S. policy precedent in immigration and citizenship law was that those born to citizens -- white, free, of good character -- were or could be considered U.S. citizens, regardless of place of birth, so long as they applied for citizenship status and could prove their birth mother held full-birth or derivative citizenship, but such precedents were not formally established until those amendments of the 1930s.
Interestingly women who married non-US nations (aka "aliens") were stripped of their citizenship by the Expatriation Act of 1907, which built on a similar law of 1868 and it was not until 1940 that provision was fully repealed (partly repealed by Cable Act in 1922). Part of these acts was to determine under what conditions citizenship would be forfeited.
That is the best I can do there. It is a bit of a complicated morass ...