Who or What, Exactly, is an American?

Alan Milner 01/07/2016

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No one can adequately answer the question of “What is an American?” because the answers vary on the basis of personal prejudice. We should, however, be able to definitively state “Who is an American,” but it turns out that it’s not as simple as it seems.

Who, really, is an American?

Pop Quiz: Which of the people on this list is a native-born American?

A. Winston Churchill

B. Bruce Lee

C. John McCain

D. Mel Gibson

E. Bruce Willis

F. Barack Obama

The answer may surprise you: ALL of the above.

Winston Churchill

Let’s take the most famous example first: Sir Winston Churchill, Great Britain’s war-time Prime Minister, born and raised in England, was, nevertheless, a native-born American citizen because his American-born mother, Jeanette Jerome, was born and raised in the United States. Therefore, as her son, Sir Winston was legally entitled to claim citizenship in the United States. There’s no record that he ever did so, but he was legally entitled to do so.

This is because the U.S. Code, under Title 8, Chapter 12, Subchapter III, Part 1 Section 1401 states:

“The following shall be nationals and citizens of the United States at birth:

(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years. (In 1986, the statute was changed to read “at least four of which were after attaining the age of fourteen years.”)

Since Jeanette Jerome was born and raised in the United States, Winston Churchill was, ipso facto, an American citizen by birth.

Bruce Lee

Next, we come to the famous Chinese martial arts master and actor, Bruce Lee, who was actually born in the United States while his parents were on a tour of the United States as members of a Chinese Opera company. Because his parents were from Hong Kong during the period when Hong Kong was a British Crown Colony, the legendary Chinese actor could actually claim American, British and Chinese citizenship by virtue of birth, residency and ancestry.

Yes, Bruce Lee could have been elected President of the United States, while also being both a British and a Chinese citizen in name, if not in fact.

The difference is that a citizen in fact has claimed citizenship, while a citizen in name is entitled to citizenship but has not claimed it.

John McCain

John McCain was born in 1936 at the Naval Air Station in the Panama Canal Zone, when the Zone was an American Protectorate. Because he was born on a U.S. Military Reservation, which is considered American territory by international law, McCain would have been a native-born American even if his parents were not themselves American citizens, but he was also eligible by virtue of the fact that both of his parents were native-born Americans, and because his father was serving in the military at the time. Therefore, Senator McCain’s citizenship was based on the same criteria as President Obama’s citizenship, by birth and by ancestry, as well as military service.

Next, we come to the famous (or, depending upon your point of view, infamous) Australian actor, Mel Gibson, who was actually born in the United States before his parents move their family to Australia, making him an American citizen by birth and by ancestry, giving him the exact same citizenship rights as those to which Bruce Lee was entitled.

Bruce Willis

Bruce Willis, on the other hand, was born in Germany from an American father and a German mother in the town of Idar-Oberstein, where his father, an American soldier, was assigned to the Strassburg Barracks, making him an American citizen by virtue of the fact that one of his parents was serving in the U.S. military when he was born outside the United States. (Editor’s Note: We can’t refrain from noticing that Bruce Willis plays a character name John McClane in the Die Hard movies. We wonder if they have ever joked about that.)

Barack Obama

And, finally, there’s the most-disputed case of all, the citizenship of Barack Obama, who was born in Hawaii in August of 1961. As we all know, questions have been raised about whether Mr. Obama was actually born in Hawaii. Doubt has been cast upon the authenticity of his birth certificate by otherwise seemingly sane public figures and, as a consequence, Mr. Obama has become the most reviled president since Abraham Lincoln on the basis of unfounded accusations that he’s not an American citizen by birth and therefore not eligible to serve as President of the United States.

But, in point of fact, Mr. Obama’s place of birth has no effect upon his status as a native born American for the exact same reason that Winston Churchill was an American citizen by birth: the citizenship status of his mother.

Note, please, that the statute is silent on the question of the current status of the mother’s citizenship. The fact that Churchill’s mother became a British citizen upon her marriage to Lord Randolph Churchill is irrelevant to Winston Churchill’s citizenship status.

By the same token, Mr. Obama’s citizenship is definitively established on the basis of the fact that his mother meets the criteria under which her citizenship transfers to her children, regardless of where they were born.

So, the next time you hear someone claiming that Barack Obama isn’t entitled legally entitled to serve as President of the United States, ask them if Winston Churchill was.

Ted Cruz

It seems that this is one lesson that never quite gets learned, because, now, Donald Trump, that supreme arbiter of all things American, has decided that Ted Cruz might not be eligible to serve as president because he was born in Canada. Ted Cruz might not be qualified to serve as president. As a matter of fact, we doubt whether he is qualified to serve as a Member of the United States Senate, but there is absolutely no doubt in anyone else’s mind as to whether Ted Cruz is eligible for the Oval Office. He is.

This gets even more complicated for the Republican party because, if he is not deemed eligible to serve as president of the United States by virtue of his citizenship status, then he is not eligible to serve in the United States Senate either…but perhaps the Senate could gather itself together and do for Ted Cruz what the Senate did for John McCain.

In 2008, in a reasonable reaction to extreme right-wing allegations that John McCain, whom they never liked in the first place, was ineligible to serve as president because is was born in Panama while his naval officer father was serving there, the United States Senate passed a resolution proposed by Claire McCaskill, Patrick Leahy, Barack Obama, Hillary Clinton, and James Webb to the effect that John McCain was a natural born citizen of the United States. (Note that several of these proposers were actually lining up to run against McCain in the upcoming presidential election.)

Now, a Senate resolution does not carry the force of law. It is called “the sense of the Senate” but the sense of the Senate is an indication of how the Senate would vote if such a measure were proposed as a bill. Interestingly, when this resolution was approved on April 30, 2008, no one seemed to think that Barack Obama needed a similar resolution to certify his eligibility to serve as president.

So, What is an American?

Ever since the founding of the American republic, American citizenship was automatically conferred on any child born in the United States, except the children of black slaves and the native tribes. It is important to make the distinction between black slaves and other indentured servants, because there were many non-black slaves in Colonial America and the early republic who earned their passage from the Old World to the new one by promising to serve a term of indentured servitude. The children of these non-black indentured servants were never denied citizenship, while the children of black slaves were.

Black Americans were granted citizenship rights by the 14th Amendment to the Constitution on July 9, 1868, but tribal people were not given citizenship status through the Indian Citizenship Act of 1924, and were not allowed to vote in all jurisdictions until 1957.

Absent these two heinous exceptions, every child born in America has always been accorded American citizenship even if the child’s mother had arrived the day before giving birth. What mattered, in America, was where you were born, not where your mother or father was born.

Now, with the Donald Trump leading the charge, there is a movement to deny American citizenship to the children of illegal immigrants, the so-called “anchor babies,” on the grounds that, since their parents weren’t citizens, they had no right to citizenship either. There are no Constitutional constraints or judicial decisions supporting this position, but there is a movement afoot to make it so.

It would actually be fairly easy to enact legislation changing the criteria for citizenship simply by amending Title 8, Chapter 12, Subchapter III, Part 1 Section 1401, but the question isn’t whether it would be fair to do that. The question is whether it would be moral for one generation of Americans to exclude another generation from citizenship on the basis of where their parents came from.