The Birthright Citizenship Debate
Some discussion of history, politics, and policy.
As noted in a recent post by James Joyner, President-elect Trump is talking about doing away with birthright citizenship. This is a topic I have written about before (see, On Birthright Citizenship from 2018). I would note in that previous post I wrote about Michael Anton. Anton served in the first Trump administration and has been named to be the deputy National Security Advisor in the incoming administration.
My basic views have not changed.
First, I think that the practice is firmly established in US history and its legal order.
Second, I think it is a largely unvarnished good. Even if one can conjure odd or questionable edge cases the good far, far outweighs the bad.
The text of the 14th Amendment couldn’t be clearer:
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.
If we are to take a plain reading of the language seriously, what else do you need to know? The question of “subject to the jurisdiction thereof” is the only place for argument, but this refers to ambassadors/ministers of foreign governments (the same reason they have diplomatic immunity), native tribes not otherwise under the jurisdiction of the federal government, or invading armies.
The debate at the time also encompassed and understood that the amendment’s language was not limited to former slaves. See Neufeld and Schneider’s 2020 piece for the Niskanen Center, Birthright Citizenship: A Core Tenet of American Liberty for some details about the contemporaneous debate.
The current interpretation of the clause was upheld by the Supreme Court in United States v. Wong Kim Ark, 169 U.S. 649 (1898). For those keeping score at home, that was a century and a quarter ago.
Moreover, what the 14th Amendment did in correcting Dred Scott was not establish a new right, but to affirm preexisting practice. See Stock’s 2010 article in the Cato Journal, Is Birthright Citizenship Good for America? In that piece, she notes that the common law practice of jus soli (law of the soil rather than of blood) dates to the founding. And, moreover notes a NY state case, Lynch v. Clarke (1844), which underscored this fact.
In other words, it was Dred Scott that was the deviation and the 14th Amendment was not the introduction of something new and novel into American jurisprudence.
If, somehow, the Trump administration can get the Supreme Court to reinterpret the 14th Amendment’s citizenship clause, then precedence will have lost all meaning, and plain text readings of the document and/or originalism will be shown to be empty husks as concepts.
I think that birthright citizenship is a policy good because it provides the surest pathway for the long-term integration of migrant communities. This is especially important in a country like the United States where almost everyone’s ancestors are from somewhere else. It may create some odd cases like the possibility that a person could start labor on one side of the border, but give birth upon crossing, thus conferring citizenship to the newborn. But so what?
If one of the alleged concerns about immigrants is that they don’t properly assimilate, taking away birthright citizenship makes that problem substantially worse, not better. I would argue, too, that citizenship based on blood leads to ethnonationalism, which never ends well. Moreover, the best way to assure allegiance to the US is for a person to be an American.
There is a lot to be said for a simple, clean way to prove you are a citizen: your birth certificate. No need to prove parental lineage or anything else.
Also, note that contrary to Trump’s assertions, the US is not alone in this arena (via the LOC):
Postscript.
I have to admit, it is kind of exhausting to be writing about this yet again. While I suppose there are some nuanced arguments one could have about this subject (i.e., what the exact best way to navigate and regulate citizenship), the reality is that most people who want to revoke birthright citizenship are likely just some version of a white nationalist who thinks that “American” mostly means “Anglo.”
Even apart from the legal (and other) considerations, the US simply does not have the governmental infrastructure to switch to a parental status citizenship model.
In order to make that work, you would need a solid civil registry. That’s not something you can build in a couple of years.
Trying to do this without a well-functioning civil registry already in place is a recipe for disaster. Many people won’t be able to prove their citizenship and will become de facto stateless.
But perhaps that’s the intention.
ETA: What I’m trying to say is that this isn’t a serious discussion in the sense that people are looking to balance competing policy aims. Instead, it’s just hating on foreigners. Practicalities be damned.
You’re going to want to record that as a macro for pretty much every comparison of Trump’s assertions and reality.
I don’t understand how this is at all debatable. It seems to me (a non-lawyer, a non-Constitutional Scholar) that you ou either change the Constitution by way of Amendment, or you let the ‘originalists’ on this Supreme Court interpret this to Trump’s favor (normally thought to be far-fetched.)
I don’t know how my Norwegian ancestors got here three and four generations ago. They may have wetbacked into Minnesota from Canada. I certainly can’t prove any of them were naturalized. But, being of Norwegian descent, I’m whiter than white, so no Republican is likely to question it.
Also, water would be wet.
@al Ameda:
It’s a hell of a lot clearer than the 2d Amendment.
We both know Trump’s never read any portion of the Constitution and has no idea what’s in it, let alone why. And he doesn’t GAF. Like many rapists, he’s not a Constitutional scholar.
@drj:
The same people that are screaming over birthright citizenship will lose their minds about a civil registry. Remember the debates of national ID cards and even gun registries.
Though a civil registry or national ID’s would address all those conservative concerns about fraudulent voters and undocumented individuals receiving welfare and other social benefits.
@Michael Reynolds: IANAL, but the Second seemed clear enough for a long time. Then SCOTUS Republicans stripped away the explanatory preamble and ignored the unwritten principle of common law jurisprudence, “Don’t do anything stupid.”
I wonder why birthright citizenship is so much more prevalent in the western hemisphere.
Many of the nations that gained independence from Spain copied a lot from the US model of governance. This mostly means a constitution, a presidential system, a bicameral legislature, and an independent judiciary. Birthright citizenship in the US came much later.
I recall having studied parts of earlier Mexican constitutions (the current one dates from 1917), but not what was in them*. So I cant tell whether birthright citizenship was the rule from the beginning or not. it is now, as I mentioned the other day.
*One of them declared a state religion (Roman Catholic, no surprise), but also freedom of religion. I forget which one or how it worked. I remember it only because the teacher asked for an example of a liberal provision in that constitutions, and one classmate brought up the state religion.
@Kathy:
Because land without people is economically worthless. And the native populations had been wiped out by conquest and disease.
That made anyone welcome.
@drj:
In Mexico the native population interbred with the conquerors. There were massive deaths due to disease, but the large majority of the population today is the result of such interbreeding. I think this is true of most of Latin America as well.
But it’s true that the Americas had a lower population as compared to land as Europe. So, yes, there was a lot of open space to exploit.
I would think it is clear that he meant White countries, with a capital W. Once you factor that in, he is surprisingly close to accurate.
It looks like the only exception is Canada, but is Canada even really a country? Opinions differ.
Canada snark aside, you can’t have a successful White Nationalist state with birthright citizenship. Any random brown person could slip across the border and have a kid while you’re not looking, and then where would you be? You would be in a shithole country, that’s where.
You’re trying to make a logical and legal argument against the proposed policy, but without addressing the White Nationalism, I think you’re missing the bulk of the rationale for it or at least assuming a lot more good faith then is actually there in anyone supporting Trump.
You’re right that it’s only an alleged concern, but the actual concern is the exact opposite — what if they do assimilate, and start breeding with our pure White maidens and pollute our precious bodily fluids? What if those pure White maidens start listening to rap, or jazz?
I shared this once before, I think. About a decade ago, there was a very short-lived “Minority Report” TV series, based on the Tom Cruise movie. Set about 5 years after the events of the movie, so circa 2059, it features the youngest of the precogs, who is still trying, unsuccessfully, to use his gifts to stop crime, until he teams up with a female cop and starts helping her solve her cases.
It wasn’t a very good show, but one episode stayed with me. It was called “14” and focused on the cop’s boss, played by Wilmer Valderrama. In this episode, they were pursuing a criminal gang of “14s”: children and grandchildren of undocumented immigrants who were left stateless by the repeal of the 14th Amendment. With no stake in society and no legal ways to earn a living, most turned to crime.
There are flashbacks to the boss’s childhood, where his undocumented mom remained in her marriage to a violent US citizen in order to protect the legal status of her sons. You watch him wrestle with understanding that if it weren’t for his mom’s terrible sacrifice, he would be in the same position as the 14s he’s pursuing.
It was all wrapped up in one episode, although I don’t remember how. In a better show, this could have been a recurring theme: the social and criminal impacts of leaving people stateless, and how someone who could have been one of them deals with it. Furthermore, it could have built upon some of the ethical issues raised in the Minority Report movie: if you can precog a crime committed by someone who has no other options, do you expose it or not?
@Monala:
Are you a writer?
My instinct is that this is a “policy proposal” that is not intended to work, but to dramatize. Oh, he’ll try to make it work, and force someone else to stop him. Maybe that will be the courts, maybe it will be something else.
What does the drama say? It says “immigrants are bad, they cheat and game the system, and in doing so, they take away resources from other [in their eyes] more legitimate citizens.” This is scapegoating, it lets people who have not done well blame someone else for their problems, which may be of their own making, or may be attributed to a system that is very definitely rigged against them. Rigged by people like Trump.
I don’t want to play this game. I don’t want to fight on the ground he’s chosen. I’m not sure what to do, but that’s my reaction.
@Gustopher:
Or sneakier yet, have the gall to be residing in the half of their country that we stole. Or get kidnapped in Africa and shipped here and sold. I would have thought the ethnostate ship had sailed long ago.
@Jay L Gischer:
I think you’re right. But I worry about the possibility Trump, pushed by his Koch and tech bro backers, will use partial repeal of 14A as an excuse to call a convention of the states to try to rewrite the Constitution more to their liking.
The only thing even remotely debatable is the phrase “subject to the jurisdiction thereof.” And it’s not really debatable when you look at Supreme Court precedent and the history of the concept. Also, if illegal aliens living in this country are not subject to the jurisdiction of the United States, then by what right would we have to deport them? The meaning of the 14th amendment is clear here. If you’re born in the United States, and not a member of an invading army or a foreign diplomat, then you are a citizen.
@Jay L Gischer:
Or as a starting point to eventually “compromise” on doing away with family reunification completely as a reason to grant naturalization or even legal residency.
@gVOR10:
If you keep the brown people we have in the country separated, you can get an ethnostate. Look at Trump buddy Elon’s childhood homeland.
Also, it’s worth noting that White Nationalists aren’t the best and brightest. They are in fact the best argument against White Supremacy.
@drj:
Not so much, at least in Mexico and the central/western parts of “Latin” America.
iirc Mexico is 55% “mestizo” (ie mixed Hispanic/native American), 30% “indio” (native American), 10% “criollo” (ie “white” Hispanic), and 5% “other” (mostly “mulatto” ie whollyor partly African descent)
And similar in many other parts.
iirc Brazil, Argentina, Uruguay and Chile are far more non-native American descent