I just finished reading (and writing up a post for the Flophouse to be published tomorrow) about Patrick Weil’s new book, The Sovereign Citizen: Denaturalization and the Origins of the American Republic.
In a nutshell this book traces the evolution of American citizenship from a conditional citizenship to an unconditional one. Unconditional in what sense? As a result of a series of Supreme Court decision it is impossible today for a birthright American citizen to be forcibly denationalized (have his or her American citizenship stripped away) though it is still possible for a naturalized one to be denaturalized in very rare circumstances.
What is fascinating about Weil’s analysis is that he says that the major change in the American conception of citizenship was to change the “Who Decides.” According to Weil the Supreme Court decided that it was NOT the the U.S. government, the U.S. Congress nor the American people who get to decide – it’s the Constitution. It says so right there in the Fourteenth Amendment and that has been interpreted by U.S. courts to mean that American birthright citizenship is unconditional. Doesn’t matter if you leave the country 5 days after you were born or take on another citizenship or commit terrible acts while abroad. An American citizen’s “right to have rights” is derived from and guaranteed by the U.S. Constitution.
So when a U.S. border agent stops someone at the border and proclaims, “You are an American citizen until we tell you otherwise,” that person is full of it. It’s not up to him or any agent of the U.S. government to say such a thing. It’s not even up to the American public unless they decide to go forth and alter the Constitution, a lengthy and complex process.
That was a revelation for me. Doesn’t address all the unintended consequences of the Fourteenth Amendment. Surely doesn’t help all those “Accidental Americans’ out there either. But if I understand Weil’s analysis correctly, it is not within the power of the U.S. government to simply declare that certain people are no longer U.S. citizens. I found that fascinating.
So here we are in a globalized era with a government which cannot denationalize citizens under any circumstances but can and does make their lives very difficult when they live outside of the United States. Citizens abroad can be killed without due process. And as we know they can also be double-taxed. I imagine as well that there are a whole host of others things the U.S. government could do if it was sufficiently motivated.
It has been suggested that the recent enforcement of citizenship-based taxation is not a roundabout attempt to get U.S. citizens to voluntarily give up their citizenship. A lot of Americans I’ve talked to in the homeland (Left and Right) seem to think that things like living in another country long-term, voting in a foreign election or marrying a foreign national should get your citizenship pulled. They can’t do that but what if we could be encouraged to go away of our own accord? I doubt it is the main reason behind citizenship-based taxation/FBARs/FATCA but perhaps America thinks that renunciations/relinquishments are a happy by-product of these things?
What do you folks think?