As I noted last week, President Trump threw something of a grenade into the immigration debate last week with the suggestion that he could sign an Executive Order that would eliminate birthright citizenship under the 14th Amendment for the children of undocumented immigrants. As I noted at the time, and as numerous legal scholars have stated since the President’s remarks and in the past, there is quite simply no support under the law for the idea that the President has the authority to rewrite the Constitution in the manner that President Trump suggests. Additionally, given Supreme Court rulings that go back the 1898 ruling in United States v. Wong Kim Ark, 169 U.S. 649 (1898) and affirmed most recently just about 30 years ago in in Plyer v. Doe 457 U.S. 202 (1982), it is clear that birthright citizenship for virtually all children born within the territory of the United States is the only logical reading of the 14th Amendment’s citizenship clause. Therefore, the only way to eliminate birthright citizenship for the children of undocumented immigrants is through a Constitutional Amendment, which is obviously a harder thing to accomplish than either an Executive Order or Congressional legislation.
Leaving aside the legal arguments, though, birthright citizenship as it exists today is a good idea that should not be disturbed, especially since it would fundamentally alter what it means to be an American in a way that would have a negative impact on the nation and on our political culture. From the very beginning of the Republic, it has been the general rule that anyone born within the territory of the United States was an American citizen from birth. The only exceptions to this rule were African-Americans held in slavery and Native Americans. In the first case, that tragic and inexcusable omission was fixed only after a bloody Civil War and the ratification of the three Constitutional Amendments — the 13th, 14th, and 15th Amendments — that fundamentally altered not only those restrictions on citizenship and equal rights but also the relationship between the states and the Federal Government. With respect to citizenship, though, the guarantee that African-Americans would be treated as citizens under the law was put right in Section One of the 14th Amendment, which states:
All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside
With respect to Native Americans, the understanding at the time that the Amendment was ratified that those Native Americans living on reservations were effectively citizens of their respective tribes, which at the time were still recognized as what amounted to independent nations, Therefore, they were not “subject to the jurisdiction” of the United States. It was not until Congress adopted the Indian Citizenship Act in 1924 that this was changed and Native Americans were granted citizenship as were their descendants.
In any case, leaving aside these two exceptions, the United States has always been a nation where literally anyone could become a citizen either by being born here or by going through the naturalization process established by Congress. This was quite different from the citizenship rules that existed at the time in other parts of the world which depended on bloodlines and ancestry, a rule that still applies today in nations such as Germany and most of the rest of the world outside of the Western Hemisphere. It was a rather unique idea at the time, but it was appropriate for a new nation that was welcoming immigrants from all over the world who wanted to start a new life in a nation based on freedom and liberty. After the Civil War, the 14th Amendment was adopted in apart to codify that idea in the law once and for all. If you remove birthright citizenship or change it radically as the President, as well as Republicans such as Lindsey Graham, are proposing, that will change the nature of what it means to be an American forever. Moreover, to the extent that Republicans are concerned about the idea of immigrants who have not fully assimilated into American society, eliminating birthright citizenship would seem to not only guarantee that will continue but that it will continue across generations, thus creating divisions between people who live in the United States that didn’t exist before. One can argue that there are some social costs created by birthright citizenship, but they pale in comparison to the costs that would be incurred by society, culture, and the law if we ended it.
Additionally, the arguments against birthright citizenship hold little merit and are generally counterintuitive to the ideas that critics of the idea have of what immigration should be about. It is the idea that we are all citizens from birth or naturalization, for example, is what helps encourage quick assimilation by immigrants and to discourage the formation of what amounts to a second class of citizens who can never fully be a part of the nation in which they reside. The contrasts greatly with nations such as those in Europe, Asia, and Africa where citizenship is effectively conveyed not by soil by but by blood. In those nations, there are entire populations of people who are born residents of the nation in which they live but who can either never become citizens or can only do so by going through a long an laborious process that is designed to discourage them from even trying to do so. Because of this, we see nations like France and Germany with large populations of second-class citizens who never become fully integrated into the nations in which they live, and whose descendants grow up to find that they aren’t really considered citizens of the only nation they’ve ever called home. These children know little about the nation their parents came from, but because of the laws in the nation in which they live, they can’t claim to be citizens of their “home” country and often find themselves equally rejected by the nation of the parent’s origin. This leads to the creation of what effectively amounts to an underclass that, in addition to being an easy target for exploitation, can also be an easy target for radicalization by those who would recruit them to commit violent acts against people that they ought to consider to be their countrymen.
Arguing against birthright citizenship then is effectively to argue against fundamental parts of what it means to be American and what has made our nation what it is over the past nearly two and a half centuries. The first is the idea that we are all equally American regardless of where we or our parents came from and regardless of how they got here. As I noted above, this isn’t true in other parts of the world where citizenship is conferred by blood rather than birth or soil. One can live in Paris or Berlin one’s entire life and still not be considered wholly French or German. There is no such bar based on ethnicity or loyalty that applies in the United States. We all have a place of birth, and for those born within the territory of the United States, that birthplace is America. It doesn’t matter if your name is Smith and your family has been here since the 17th Century, or if your name is Gonzalez and your family has only been here since 1980. We’re all equally American, we all have the same rights under the Constitution and the law, and we all pledge allegiance to the nation that exists to defend those liberties. To argue against that by saying that some people born here can never be “real” Americans because of where their parents came from or how they got here is, fundamentally, a rejection of everything this nation has ever stood for, and a contradiction of the promises made in the Declaration of Independence and the Constitution and reiterated by great Americans such as Abraham Lincoln in the Gettysburg Address and Martin Luther King, Jr. in his speech to the people who gathered in Washington on a hot day in August, 1963 to demand for themselves the rights guaranteed to them by virtue of the fact that they are American citizens and have been from the moment they were born. While there are other nations that have birthright citizenship, including Canada, Mexico, and a majority of the nations in the Western Hemisphere, the idea itself is uniquely American and it makes all of us Americans.
