Democracy, Amnesty, Citizenship and Anchor Babies

It is 500 B.C., Athens. Cleisthenes took power 8 years ago. Seeing that there was a continual strife among the ruling clans, leading to tyranny, he changed the tribes by taking away their family names (patronymics) and turning them to the names of the places they came from, after the local peoples (demonymics), divided geographically. This socio-geographical “gerrymandering” enabled the first “sortition” – elections based on ability rather than heredity. Each “demos” (geographical people) was represented. True democracy was born.

Cleisthenes established a court system where jurors were equally selected from each demos (tribe or polity, if you will). Everybody was equal before the law, equal at the polls – thus, he called this system iso-nomia (iso=equal, nomos=law). Any citizen who was deemed to have too much power was exiled. Such tyrant-to-be could retain his property but was unable to be physically present and influence people.
In order to be a citizen and have the right to vote, one had to be born in Athens. This became known as the “law of the soil” or “Jus Soli.” Greece was still a relatively small, unpopulated country and almost everyone lived in Athens. When Rome began to grow into an empire, the old Greek “Jus Soli” had to be first extended to all the territories of Rome. This was done by edicts, proclaiming the citizens of the conquered lands also the citizens of the Roman Empire, thus subjecting them to taxation and Roman Laws (for example: Edict of Caracalla).

The other device for expanding Roman citizenry was the “law of the blood” or “Jus Sanguinis” – making all those born to Roman citizens elsewhere (e.g. the Gaul, Britain) Roman citizens at birth. This was based on the blood relationship, not the relationship to the (Roman) soil.

The edicts making new citizens (mentioned above) are not comparable to modern amnesties by executive action because Roman Empire expanded, people were not physically moving and immigrating (to Rome or other parts of the “old empire”). The empire expanded to them.

Only one citizenship was possible, only one allegiance recognized. However, this also had undesirable effects, such as making it more difficult for Rome to recruit soldiers and increase the number of legions because prior to the edict (of Caracalla) being issued, there had been conditions on acquiring citizenship, one of them being that the new male Roman-to-be had to join the army and serve (in order to deserve citizenship).

As there were different periods of expansion, so there were also different levels of incorporation of territories and peoples (somewhat akin to the acquisition of territories and their recognition as states in our history). Citizenship had different levels with a different scope of influence. Only Cives Romani, full Roman citizens had all the rights: to vote, to marry, to sue on contracts, to bear arms… basically our Bill of Rights, Roman version.

One could achieve higher status as an immigrant by staying in Rome and working to improve the state. Granting citizenship to allies was also a great step forward in the “Romanization” of newly conquered territories and a powerful political tool. Alexander the Great successfully “mingled” and assimilated Persians, Egyptians, Syrians… under one heading.

This idea did not survive him very long, but it seems to me that our effort in Iraq was very similar – until recently. Post-World War II arrangement of Europe into “zones of influence” was also based on the same old (Alexander’s) devise of ruling over foreign nations.

Today, we recognize both: the law of the blood and the law of the soil and apply them so as to maximize our population. There exists very little discrimination and the only “level” of citizenship is that a person not born on the US soil (Jus Soli) cannot become the President or function in close hierarchy thereby (Vice-President, Speaker of the House, Chief Justice).

The only other difference is that between a permanent resident and a full-fledged citizen. Green card gives you the right to travel, do business, work, and reside on US territory – but not the right to vote. It should also not automatically grant you constitutional rights and protections.

If there should be indiscriminate right of citizenship (by executive action, i.e. edict or amnesty), then we have to re-institute the old Roman “levels of citizenship.” The right to vote should stand above all others, and be granted only to those citizens who have no other allegiance (no double citizenship) and have been in the country for a period of years, contributing to the economy. Any form of the dole, social support and almstaking from the government on the part of these newly integrated citizens should disqualify them from voting. Language proficiency in English ought to be a must, for how can you vote if you know not what you are voting for?

Currently, there is one level of citizenship and constitutional protections and rights are granted across the board, which is NOT FAIR to the native United States citizens who have lived here, worked and paid taxes and those new citizens who have done so for a major part of their lives.

The right to citizenship of so-called “anchor babies” is based on Jus Soli, not Jus Sanguinis. It is not necessarily older than Jus Sanguinis, the right of blood, which goes back historically to primitive exogamic tribes and, later, royal lineage and intermarriage. The problem with any kind of right is that once granted, it is difficult, if not impossible, to remove. As the right to citizenship under Jus Soli, the law of soil, it is legally gradually extended from the anchor to the entire family, even if they live abroad. The system is absolutely open in this respect, which incentivizes foreigners to come here just to give birth (to “throw the anchor” on our soil).

Let us be mindful of the origin of the word: the Old English “ancor” borrowed Latin “ancora” and Greek “ankyra” means a “hook.” The figurative sense is that of stability and security” – also securing people together (television “anchor”). Thus, we cannot speak of anchor babies unless we also speak of anchor-families, extended “tribes” of people anchored by Jus Soli. We can drop the “babies” and merely use the word “anchor” for it has a more substantive meaning on its own.

How is this problem approached by other countries? Great Britain chiefly implements the right of blood – at least one parent must be a British citizen. The right of abode grants citizenship to those with sufficient ties to the community, similarly to our residence rights in a particular state of the Union. The right of abode, however, is more difficult to acquire. In fact, there are many levels of citizenship: a “full” British citizen, born and residing therein; a BOC or “British Overseas Citizen” (Malaysia, Kenya – with the right to travel and do business); British Subject (British India or the Republic of Ireland); BNO or “British National Overseas” (people from Hong Kong and China); and BPP or “British Protected Person” (neither British nationals nor aliens but people with ties to the Commonwealth). The system is not foolproof but it protects Great Britain from foreign self-serving intrusions.

In Germany, until 2000, the right of citizenship could have been acquired purely on the Jus Sanguinis basis – in other words, one parent must have been a native German citizen. As of 1/1/2000, at least one parent must have had permanent residence for at least three years and been residing in Germany for at least three years.

In France, Jus Soli applies indiscriminately, which makes me think that perhaps our Jus Soli has been influenced by French laws, which, until recently, stated that anyone born in France or on former territories of France may automatically request French citizenship.

Coincidentally, as Bill Clinton finished his second term as President of the U.S., he could have claimed citizenship of France and run for leadership there under the law passed in 1961 [Article 21-19(5º)], which enabled people from former French territories to apply for immediate naturalization, bypassing the normal five-year residency requirement for would-be French citizens. As Clinton was born in Arkansas which had been part of French Louisiana before it was sold to the US, it was held that he would qualify under this law. Therefore, as a naturalized French citizen, he could run in the French presidential election.

Clinton himself later repeated this claim in 2012 as an amusing thought when speaking to an interviewer. However, by then, this possibility had already ended, because Article 21-19(5º) of the Civil Code was repealed (by article 82 of law 2006-911) on July 25, 2006 under the direction of Nicolas Sarkozy, then Minister of the Interior.

France currently makes a child of a foreigner French citizen at the age of 18, provided that the child resided in France since age 11 for at least five years. Younger children may become French citizens if they have resided in France continuously for at least eight years. Five years of “habitual and continual residence” is required for naturalization, as is the case in the United States.

As an attorney practicing in the area, I see very little room for improvement in the United States’ immigration system. Requirements for knowledge of English should be increased and rights obtained by family relationship limited. Permanent residency (Green Card) should be available to all those who have not been on (any kind of) government or social support for the past five years, have continually resided in the country and paid taxes for the past five years.

Laws applicable to minors in France (see above) would well behoove us to apply domestically too. Stateless persons, refugees, people willing to serve in our military – should all be approached with certain advantages. Many of them already exist and are applied. Finally, in none of the countries stated above is citizenship granted at birth unless the conditions posed on the parents at the time of birth are met.