State Citizenship Is Alive And Well

Did the 14th Amendment do away with State Citizenship?

"The Fourteenth Amendment of the Constitution of the United States, ratified in 1868, creates or at least recognizes for the first time a citizenship of the United States, as distinct from that of the states." Black's Law Dictionary, 5th Edition, p. 591 [1979].

The answer is absolutely not.

In fact the leading and controlling case on State Citizenship and United States Citizenship is the Supreme Court case, The Slaughter-House Cases (16 Wallace 36: 21 L.Ed. 394 [1873]). In this case, the Supreme Court distinguishes between State Citizenship and United States Citizenship.

"It is quite clear, then, that there is a citizenship of the United States and a citizenship of a state, which are distinct from each other and which depend upon different characteristics of the individual." The Slaughter-House Cases: 83 U.S. 36, 74.

"The importance of the case can hardly be overestimated. By distinguishing between state citizenship and national citizenship and by emphasizing that the rights and privileges of federal citizenship do not include the protection of ordinary civil liberties such as freedom of speech and press, religion, etc., but only the privileges which one enjoys by virtue of his federal citizenship, the Court averted, for the time being at least, the revolution in our constitutional system apparently intended by the framers of the amendment and reserved to the states the responsibility for protecting civil rights generally." Cases In Constitutional Law by Robert F. Cushman, 5th Edition, pp. 250-251 (College Law Textbook) [1979].

"Citizenship is elaborated in two privileges and immunities clauses of the United States Constitution. . . . The Slaughter-House Cases [1873] 83 U.S. 36, 21 L.Ed. 394, emphasized the distinct character of federal and state citizenship. Slaughter-House held that privileges and immunities conferred by state citizenship were outside federal reach through the Fourteenth Amendment. . . . Federal citizenship was seen as including only such things as interstate travel and voting. While subsequent decisions have extended the meaning of citizenship in the Fourteenth Amendment, Slaughter-House is still controlling in that it precludes use of privileges and immunities language in protecting citizens by federal authority." Constitutional Law Deskbook - Individual Rights, by Chandler, Enslen, Renstrom; Second Edition, p. 634 (Lawyers Cooperative Publishing, 1993).

How the 2009 Citizenship Law Applies to Adopted Children

The Canadian government has passed a new citizenship law that resolves a variety of issues about Canadian citizenship (Bill C-37). Buried in that law is a provision that has passed unnoticed, until now, which puts limitations on the Canadian citizenship rights of some internationally adopted children. Recent articles in the National Post, the Globe & Mail and the Ottawa Citizen have brought these provisions to the attention of the adoption community.

Although this new law will come into effect on April 17, 2009, I hope it is not too late for adopting parents to express their views (read Comments from adopting parents so far. Also read Complex Citizenship Laws Anger Adopting Parents). The provisions of the new law are complex, so I have set out a series of questions and answers at the end of this article, which I hope will clarify the finer points of the new rules.

A good way to begin understanding the issues is to read the newspaper articles "Critics Fear Two-Tier Citizenship" and "Citizenship Changes Could Create Inferior Citizens". For the perspective of Robin Hilborn of Family Helper, see "Canadian law denies citizenship to children of foreign adoptees"

Essentially the legislation provides that the children of some internationally adopted children will not have a right to Canadian citizenship. In practice, this is likely to affect only a small proportion of all adopted children. What upsets adopting parents, however, is the notion that their children will have a lesser class of citizenship. In effect, the children are being discriminated against. Adopting parents do not want to feel that their children are second-class citizens.

Adopting parents in Canada are losing their tolerance for being discriminated against. Resentment at the inherent discrimination against adopting families built into the EI legislation has been simmering for the past decade (for a detailed description of the discrimination which adopting parents feel about this subject, see our earlier Spotlight, "Adoption in the Workplace"). Now a new law that discriminates against their children is going to have a galvanizing effect on the adoption community.