This week's modest proposal

This scribbler has more reason than most to snicker at the Republican rantings about repealing the 14th Amendment. I think a number of them would like to repeal the 13th Amendment as well, but they need their majority back. The 14th Amendment does much more than determine citizenship. It also has a good deal to say about the rights of American citizens within the several states, and the penalties that accompany insurrection and rebellion. Considering the company they're now keeping, it's no wonder Republicans want to repeal it.

The dribbling rants of the interweb wingnuts move the entire discussion from the ridiculous to the absurd. The absurdists howl that conferring US citizenship on the basis of birth within the United States is a liberal plot unique to this country. Not so: with the 14th Amendment (the work of Republicans, be it said), the USA belatedly aligned itself with one of two already-established principles of international law. There were (and are) two ways in which citizenship can happen. One is by birth within the native folk group of a nation-state, called jus sanguinis (right of descent). The other is by birth on the land of the nation-state, called jus soli (right of the soil).

It will occur at once to thinking adults, and to more attentive children, that limiting American citizenship to jus sanguinis would instantly disenfranchise about 98.5 percent of the residents of this country, since it can apply only to the Native peoples. That is an attractive proposition in some ways. It certainly would be a great leveler, since for a time most of the population would be illegal immigrants. It would greatly increase the number of people who sign up for mitochondrial DNA sampling, in hopes of proving jus sanguinis through that Native American ancestor they would now rather forget.

It was these considerations, rather than an idea of being soft on them foreigners, that likely influenced the framers of the 14th Amendment to choose jus soli as their precedent. They were rather closer to the idea of who were the natives, since in 1868 there were still nations of Native people doing quite a good job of making that point to the illegal white immigrants. No, howlers, they chose the one path that seemed likely to make sense of such a diverse stew of people.

The only option we have is to modify, not overthrow, jus soli, and we would not be the first. But to do so would be to plunge headfirst into the gigantic bowl of lukewarm spaghetti called nationality law. Here are a couple of interesting examples:

1. A very pregnant woman and her husband are flying back to the USA from Greece. The wife is American by birth, the husband a Greek, a lawful permanent resident of the USA. En route, the woman goes into labor. the plane is diverted and lands in Vienna, where she is rushed to the hospital and has a happy outcome.
   
   Q: What nationality is the baby? American or Greek?
   
   A: Neither. The baby is Austrian by birth under jus soli, which was the law in force at the time and place of the birth. To become an American citizen, the baby must go through a process called derivative citizenship, which establishes the bona fides of the mother.
   
   
2. Just before WWII, a middle-aged permanent resident of the US, born in the UK, is offered a job in the defence industry, on condition that he become a naturalised US citizen. He and his wife do so, assuming that their US citizenship oath absolves them from loyalty to the British crown. Their two adult children, one male, one female, assume that their parents' naturalisation takes care of them as well. The male child then serves in the US armed forces in WWII. Time passes and eventually the son gets a job which takes him often to Canada. In those casual days of yore, he re-enters the US either with his drivers' licence or his army discharge papers. Then, more than 20 years after his parents' naturalisation, an alert US immigration inspector observes this man's place of birth on the discharge papers: United Kingdom.
   
   After a few awkward hours, this man learns first, that his parents' naturalisation has no bearing upon his nationality, since he was an adult at the time. Second, the mere fact of serving in the armed forces does not make him a US citizen; only eligible for citizenship. In international law he is a British citizen until he goes through the naturalisation process, which he does.
   
   Years after that, one of this man's sons comes across another oddity. Under British law, being naturalised somewhere else doesn't mean you cease to be a British citizen. It may; then again, it may not. If this son returned to the UK, could he claim British citizenship? The answer is a resounding maybe.

I saw the first example play out many years ago when I worked for the Immigration Service. The male parties in the second example are my grandfather, my father, and myself. I don't think the current crop of US Senators--much less the average Internet intellects--are entirely prepared for the intricacies of the law of nationality, which makes rocket science look like preschool building blocks.

Speaking of intellect brings me back to my proposal. Let's leave birth under jus soli alone. However, let's return to the good old days of certain tests for the benefits of citizenship, such as voting and season passes to NFL games. In place of poll taxes and race, I suggest an intelligence test involving, say, basic civics and civility. As a sop to the wingnuts, this test would be in English: standard American English, not the imitation variety in Internet chat rooms or comment lists.

Come to think of it, that would reduce the electorate more than jus sanguinis.