Did you even read the post regarding the history of the law?
Not only did I read the post on the history, more important, I read all the Public Laws and searched down their effective dates. I gave you the effective date clause for all the amendments to Sec. 1409 and it looks fairly clear to me.
I have never to my knowledge anywhere suggested that the unwed mother clauses originated in 1952 or 1986 because I think it is clear on their face they did not. To the contrary, I think the material change to Sec. 1409(c) in 86 and 88 is only to the date.
Which statute have I misread? Which Public Law doesn't fit with my description? Where (in what statute or Pub.L.) is the effective date of the modifications to (c) made by the 1986 or 1988 acts?
I don't think moving back the operation of the statute does much violence to the fundamental issue here--if he was born offshore and was illegitimate, he wasn't a citizen when he was born because the statute didn't exist in that form on that date; he still flunks the natural born test. To get to citizenship, he needs to reverse the record of marriage of his parents.
I suspect the latter would be difficult to do because I now believe it will turn out that they were married in Kenya where having more than one wife was not a problem.
And I continue to think my reading of the effective dates is probably correct because the LawLink description of the law posted above says the same thing. Both of us might be incorrect--I don't see where.
What part of what statute conflicts?
In any case, it is a fascinating read regarding our history about citizenship and interesting for other reasons: (Bolding highlights are mine
The first statute on the citizenship of children born abroad, enacted in 1790, stated: “[T]he children of citizens of the United States, that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens: Provided, That the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.” Act of Mar. 26, 1790, ch. 3, 1 Stat. 104. Statutes passed in 1795 and
1802 similarly conditioned the citizenship of the child born abroad on the father’s at least one-time residence in the United States. Act of Jan. 29, 1795, §3, 1 Stat. 415; Act of Apr. 14, 1802, §4, 2 Stat. 155. This father’s residence requirement suggests that Congress intended a child born abroad to gain citizenship only when the father was a citizen. That, indeed, was the law of England at the time. See 2 J. Kent, Commentaries on American Law *50—*51 (hereinafter Kent’s Commentaries); 4 Geo. 2, ch. 21 (1731). The statutory language Congress adopted, however, was ambiguous. One could read the words “children of citizens” to mean that the child of a United States citizen mother and a foreign father would qualify for citizenship if the father had at some point resided in the country. See Binney, The Alienigenae of the United States, 2 Am. L. Reg. 193, 203—205 (1854). Or, as Chancellor Kent observed, the words might mean that both parents had to be United States citizens for citizenship to pass. 2 Kent’s Commentaries *53.
Under the 1802 legislation, children born abroad could not become citizens unless their parents were citizens in 1802, which meant that as the years passed few foreign-born persons could qualify. Daniel Webster, among others, proposed remedial legislation. His bill would have granted citizenship to children born abroad to United States-born citizen mothers as well as fathers. His effort was unsuccessful. See Cong. Globe, 30th Cong., 1st Sess., 827 (1848); F. Franklin, The Legislative History of Naturalization in the United States 271—276 (reprint ed. 1971). Instead, in 1855, Congress clarified that citizenship would pass to children born abroad only when the father was a United States citizen. Act of Feb. 10, 1855, §2, 10 Stat. 604. Codified as §1993 of the Revised Statutes, the provision originating in 1855 read: “All children heretofore born or hereafter born out of the limits and jurisdiction of the United States, whose fathers were or may be at the time of their birth citizens thereof, are declared to be citizens of the United States; but the rights of citizenship shall not descend to children whose fathers never resided in the United States.” Rev. Stat. §1993.
In these early statutes, Congress did not differentiate between children born abroad to married parents and those born out of wedlock. Section 1993, as applied, allowed transmission of citizenship to children born out of wedlock if the father legitimated the child. See, e.g., 32 Op. Atty. Gen. 162, 164—165 (1920); see also Guyer v. Smith, 22 Md. 239 (1864) (foreign born children who remain illegitimate do not qualify for citizenship). In several reported instances, children legitimated by their fathers gained citizenship even though the legitimation occurred, as it did in Lorelyn Miller’s case, after the child reached majority. See In re P, 4 I. & N. Dec. 354 (C. O. 1951); 7 C. Gordon, S. Mailman, & S. Yale-Loehr, Immigration Law and Procedure §93.04[2][d], pp. 93—43 to 93—44 (1992) (hereinafter Gordon). But see 3 G. Hackworth, Digest of International Law 29 (1942) (noting a case in which legitimation post-majority was deemed sufficient, but maintaining that “[n]ormally the legitimation must take place during the minority of the child”).
In the early part of this century, the State Department permitted the transmission of citizenship from unwed mother to child reasoning that, for the child born out of wedlock, the mother “stands in the place of the father.” House Committee on Immigration and Naturalization, A Report Proposing A Revision and Codification of the Nationality Laws of the United States, Part One: Proposed Code with Explanatory Comments, 76th Cong., 1st Sess., 18 (Comm. Print 1939) (hereinafter Proposed Code). Ultimately, however, the Attorney General rejected the Department’s reasoning, finding it incompatible with §1993’s exclusive reference to fathers. See 39 Op. Atty. Gen. 397, 398 (1939).
Women’s inability to transmit their United States citizenship to children born abroad was one among many gender-based distinctions drawn in our immigration and nationality laws. The woman who married a foreign citizen risked losing her United States nationality. In early days, “marriage with an alien, whether a friend or an enemy, produce[d] no dissolution of the native allegiance of the wife.” Shanks v. Dupont, 3 Pet. 242, 246 (1830) (Story, J.). By the end of the nineteenth century, however, a few courts adopted the view that a woman’s nationality followed her husband’s, see, e.g., Pequignot v. Detroit, 16 F. 211, 216 (CC ED Mich. 1883), particularly when the woman resided abroad in her husband’s country, see, e.g., Ruckgaber v. Moore, 104 F. 947, 948—949 (CC ED NY 1900). See generally C. Bredbenner, Toward Independent Citizenship: Married Women’s Nationality Rights in the United States: 1855—1937, 54—59 (Ph. D. dissertation, University of Virginia, 1990) (hereinafter Bredbenner); Sapiro, Women, Citizenship, and Nationality: Immigration and Naturalization Policies in the United States, 13 Politics & Soc. 1, 4—10 (1984). State Department officials inclined towards this view as well. See L. Gettys, The Law of Citizenship in the United States 118 (1934). In 1907, Congress settled the matter: It provided by statute that a female United States citizen automatically lost her citizenship upon marriage to an alien. Act of Mar. 2, 1907, §3, 34 Stat. 1228. This Court upheld the statute, noting that “[t]he identity of husband and wife is an ancient principle of our jurisprudence.” Mackenzie v. Hare, 239 U.S. 299, 311 (1915).
The statutory rule that women relinquished their United States citizenship upon marriage to an alien encountered increasing opposition,fueled in large part by the women’s suffrage movement and the enhanced importance of citizenship to women as they obtained the right to vote. See Bredbenner 81, 95—105; Sapiro, supra, at 12—13. In response, Congress provided a measure of relief. Under the 1922 Cable Act, marriage to an alien no longer stripped a woman of her citizenship automatically. Act of Sept. 22, 1922 (Cable Act), ch. 411, §3, 42 Stat. 1022. But equal respect for a woman’s nationality remained only partially realized. A woman still lost her United States citizenship if she married an alien ineligible for citizenship; she could not become a citizen by naturalization if her husband did not qualify for citizenship; she was presumed to have renounced her citizenship if she lived abroad in her husband’s country for two years, or if she lived abroad elsewhere for five years. Id., §§3, 5; see also Sapiro, supra, at 11—12. A woman who became a naturalized citizen was unable to transmit her citizenship to her children if her noncitizen husband remained alive and they were not separated. See In re Citizenship Status of Minor Children, 25 F.2d 210, 210 (NJ 1928) (“the status of the wife was dependent upon that of her husband,
and therefore the children acquired their citizenship from the same source as had been theretofore existent under the common law”); see also Gettys, supra, at 56—57. No restrictions of like kind applied to male United States citizens.
Instead, Congress treated wives and children of male United States citizens or immigrants benevolently. The 1855 legislation automatically granted citizenship to women who married United States citizens. Act of Feb. 10, 1855, ch. 71, §2, 10 Stat. 604; see also Kelly v. Owen, 7 Wall. 496, 498 (1869) (the 1855 Act “confers the privileges of citizenship upon women married to citizens of the United States” without further action). Under an 1804 statute, if a male alien died after completing the United States residence requirement but before actual naturalization, his widow and children would be “considered as citizens.” Act of Mar. 26, 1804, §2, 2 Stat. 292, 293. That 1804 measure granted no corresponding dispensation to the husband and children of an alien woman. In addition, Congress provided statutory exemptions to entry requirements for the wives and children of men but not for the husbands and children of women. See, e.g., Act of Mar. 3, 1903, §37, 32 Stat. 1213, 1221 (wives and children entering the country to join permanent resident aliens and found to have contracted contagious diseases during transit shall not be deported if the diseases were easily curable or did not present a danger to others); S. Rep. No. 1515, 81st Cong., 2d Sess., 415—417 (1950) (wives exempt from literacy and quota requirements).
In 1934, Congress moved in a new direction. It terminated the discrimination against United States citizen mothers in regard to children born abroad. Specifically, Congress amended §1993 to read:
“Any child hereafter born out of the limits and jurisdiction of the United States, whose father or mother or both at the time of the birth of such child is a citizen of the United States, is declared to be a citizen of the United States; but the rights of citizenship shall not descend to any such child unless the citizen father or citizen mother, as the case may be, has resided in the United States previous to the birth of such child.” Act of May 24, 1934, §1, 48 Stat. 797.1
Senate and House Reports on the Act stated that the change was made “to establish complete equality between American men and women in the matter of citizenship for themselves and for their children.” S. Rep. No. 865, 73d Cong., 2d Sess., 1 (1934); accord, H. R. Rep. No. 131, 73d Cong., 2d Sess., 2 (1933); see generally Orfield, The Citizenship Act of 1934, 2 U. Chi. L. Rev. 99, 100—106 (1935). Congress again did not speak of children born out of wedlock, but the 1934 Act “was construed as authorizing transmission of American citizenship by descent by an American citizen mother to a child born abroad . . . out of wedlock under the same conditions as a child born in wedlock.” 7 Gordon §93.04[2][b], p. 93—42; see also id., §93.04[2][d][iii], p. 93—46.
The 1934 Act’s equal respect for the citizenship stature of mothers and fathers of children born abroad did not remain unmodified. Six years later, Congress passed the Nationality Act of 1940, which replaced the Revised Statutes’ single provision on citizenship of children born abroad with an array of provisions that turned on whether the child was born in an outlying possession of the United States, whether one or both of the child’s parents were United States citizens, and whether the child was born in or out of wedlock. The 1940 Act preserved Congress’ earlier recognition of parental equality in regard to children born in wedlock, but established a different regime for children born out of wedlock, one that disadvantaged United States citizen fathers and their children.
Under the 1940 Act, if the mother of the child born abroad out of wedlock held United States citizenship and previously had resided in the country or in a United States possession, the child gained the mother’s nationality from birth, provided the child’s paternity was not established by legitimation or a court order.2 But if the father and not the mother held United States citizenship, then the child would qualify for United States citizenship only upon legitimation or adjudication of paternity during the child’s minority. Furthermore, the child generally had to live in the United States for five years before the age of 21. The same residency requirement applied to children born abroad to married couples with only one United States citizen parent, whether that parent was the mother or the father. Nationality Act of 1940, §§201, 205, 54 Stat. 1138—1140.3
Subsequent legislation retained the gender lines drawn in the 1940 Act.The Immigration and Nationality Act of 1952 made only one significant change regarding the citizenship of children born abroad out of wedlock. It removed the provision that a mother could pass on her nationality to her child only if the paternity of the child had not been established.4 Immigration and Nationality Act, §309, 66 Stat. 238—239. In 1986, however, Congress added further gender-based differentials. The Legislature that year permitted substitution of a written acknowledgment under oath or adjudication of paternity prior to age 18 in place of formal legitimation. To that extent, Congress eased access to citizenship by a child born abroad out of wedlock to a United States citizen father. At the same time, however, Congress imposed on such a child two further requirements: production of clear and convincing evidence of paternity, also a written statement from the father promising support until the child turned 18. The requirements for a child of a United States citizen mother remained the same; such a child obtained the mother’s nationality if the mother had resided in the United States or its territorial possessions for at least a year before the child’s birth. Act of Nov. 14, 1986, §13, 100 Stat. 3657, codified as amended at 8 U.S. C. §1409. No substantive change has been made since 1986 in the law governing citizenship of children born abroad out of wedlock. http://www.law.cornell.edu/supct/html/96-1060.ZD.html