U.S. “Nationality” and “Citizenship”

There are two sources of U.S. nationality and citizenship.  The primary source is the Constitution itself. The secondary source is federal statute law.

Constitutional citizenship

Those born in a state of the union have U.S. nationality and citizenship by operation of the U.S Constitution. Constitutionally, “nationality” and “citizenship” have the same meaning, but the national citizenship clause in the Constitution uses the term “citizen of the United States.”

The national citizenship clause also provides that all citizens of the U.S. are citizens of any state in which they are legal residents.  That is because national and state citizenship operate in tandem to confer federal voting rights in national elections for Congress and President.

Statutory citizenship

The secondary source of U.S. nationality and citizenship arises under the power of Congress to grant national citizenship by federal statute to persons who are not born in a state, and consequently do not acquire national citizenship under the U.S. Constitution.

For example, Congress has granted U.S. nationality and citizenship to persons born overseas to U.S. parents, as well as persons born in U.S. territories rather than a state of the union.

When Congress grants U.S. nationality by statute to persons born outside a state of the union it can designate such persons “U.S. nationals.”  Or, Congress can designate such persons “U.S. citizens.”

Congress also could designate such persons “nationals and citizens,” or, as discussed below, Congress can and does designate some persons born in a territory “nationals but not citizens.”

What has not been done, and what arguably would make no sense, would be for Congress to designate a class of persons “citizens but not nationals.”

That is because references to “nationality” and “citizenship” can be used separately or jointly by Congress when making a statutory classification of persons granted nationality and citizenship, but one cannot have citizenship without having nationality as well.

That is why customary use of “nationality” and “citizenship” as distinct statutory designations for people born in one or more territory gave rise to the maxim that “all citizens are nationals but not all nationals are citizens.”

Nationality and citizenship

What this means is that “nationality” is the common denominator of constitutional and statutory nationality and citizenship, but under statutory law “citizenship” classifications are conferred on some nationals in some territories but not others.

These federal territorial nationality and citizenship laws originated under U.S. Supreme Court rulings that peoples of the Philippines, Puerto Rico and some smaller territories were neither “aliens” nor “citizens.”  Rather, because those territories were under U.S. sovereignty but not “incorporated” under the U.S. Constitution, natives were under “national protection” (hence “nationals”) of the United States.

In 1917 the U.S. Congress granted “U.S. citizenship” in Puerto Rico, but in the 1922 case of Balzac v. Puerto Rico the U.S. Supreme Court held Congress could continue to govern Puerto Rico as an “unincorporated” territory.

That meant Congress could continue to govern the “U.S. citizens” residing in Puerto Rico and other territories not incorporated under the U.S. Constitution in the same manner as non-citizen “nationals” in the unincorporated territories.

The court’s 1922 opinion openly declared this subclass with “Balzac citizenship” in “unincorporated” territories could attain equal rights of national citizenship only by relocating to a state of the union, or by the territory’s “incorporation” into the union as a step toward statehood.

Distinction Without Difference

In 20th century federal territorial statutory law the terms “citizenship” and “nationality” denote a difference in nomenclature rather than a difference in political or legal rights and status of residents in the territories.

Only under federal territorial statutory laws does “national” and “citizenship” designation sometimes have different meaning based on any variation in statutory status and rights granted by Congress.

For example, under federal territorial statutes people born in the unincorporated U.S. territory of American Samoa are designated “nationals but not citizens” of the United States.  Under federal territorial statutes people born in unincorporated territories of Puerto Rico, Guam, Northern Mariana Islands and the U.S. Virgin Islands are designated “citizens of the United States.”

All five of these territories are unincorporated, which means there is no birthright U.S. citizenship or other rights of national citizenship under the U.S. Constitution as it applies in the states of the union and incorporated territories of the United States.  Rather, the principles of the U.S. Constitution and federal law apply in all five unincorporated territories as determined by Congress under federal territorial statutes applicable in each such territory.

Equal rights of U.S. national citizenship under full and direct application of the U.S. Constitution are denied in all five unincorporated territories.  “Nationals” in America Samoa and “citizens” in Puerto Rico, Guam, Northern Mariana Islands and USVI all have the same unincorporated territory political status and vaguely defined “fundamental” civil rights under federal law.

All five unincorporated territories have local self government over internal civil affairs and federal relations based on the federal unincorporated territory model, as adapted to the unique circumstances of each such territory.

Accordingly, while residing in the territory the “nationals” of American Samoa and “U.S. citizens” of Puerto Rico, Guam, Northern Marianas, and USVI have the same political status as unincorporated territories, even though that status was invented by the courts for territories inhabited by non-citizens.

Only by moving to a state of the union do the “nationals” or “U.S. citizens” of all five unincorporated territories acquire fully equal rights of U.S. citizenship under full and direct application of the U.S. Constitution.

Persons born in Puerto Rico, Guam, Northern Mariana Islands and USVI are U.S. nationals and U.S. citizens at birth, both being designations made not by operation of the U.S. Constitution but rather pursuant to federal territorial statutes.

Those in American Samoa who acquire U.S. nationality at birth in that unincorporated territory also are fully eligible under federal territorial statutes for the same statutory U.S. citizenship as those born in Puerto Rico, Guam, Northern Mariana Islands and USVI.

The only distinction is that persons born in American Samoa must apply for the secondary designation of U.S. citizenship when and if they choose to reside in the states.  That is because the people of American Samoa have never petitioned for the secondary designation of U.S. citizenship.

That disinclination to seek “U.S. citizenship” to augment its “U.S. nationality” is because of the plausible perception in American Samoa that the designation of “citizenship” in the other four territories during the 20th century was accompanied by increased federal control and loss of local autonomy.

“Citizenship” matters in States, not Territories

The perception in American Samoa that territorial “citizenship” increases the federal footprint arises in part from the experience of the Northern Mariana Islands (NMI).  That’s because the terms of the 1976 federal territorial statute organizing the NMI’s local “commonwealth” regime of civil government expressly purport to provide internal “autonomy.”

NMI has even more statutory “autonomy” than the Puerto Rico Federal Relations Act of 1950 which also supposedly created an “autonomous” territorial “commonwealth” regime.  Yet, the NMI and Puerto Rico, along with “U.S. citizens” of Guam and the USVI, are subjected to greater federal regulation and control than American Samoa.

Most significantly of all, none of these “Balzac citizenship” territories have any actual greater vested legal rights of sovereignty or autonomy than American Samoa.  As confirmed by the U.S. Supreme Court in 2016, all five territories remain “unincorporated” possessions subject to the residual plenary sovereignty of Congress in all local as well as federal matters whosoever.

Puerto Rico and NMI have local state-like and sovereign-like powers over internal matters only to the extent not otherwise determined by Congress under federal law.  Still, it is federal law that is supreme and nullifies local law to the extent of any inconsistency.

In a very real sense, being “nationals” with a right to equal citizenship when residing in the states is no different that being “citizens” in the territories who also can have equal rights of citizenship only when residing in the states. As long as being “nationals” in a territory leaves open the option of seeking “citizenship” when living in a state, equality can be attained by American Samoa without providing Washington pretext for greater intervention in local affairs.

Only if legal classification as nationals and citizens is part of a self-determination process leading to equal rights of national citizenship at the national and local level through statehood does designation as both matter for any territory under U.S. sovereign rule.

Only Puerto Rico has chosen statehood by majority rule, only Puerto Rico is currently eligible for statehood by historical criteria.  So American Samoa appears entirely correct that classification as a citizen or national is a distinction without a difference for residents in any unincorporated territory.