Donald Trump recently announced his intention to end “birthright citizenship,” the longstanding practice whereby people born in the United States are treated as being from the United States. Many have scoffed at Trump’s proposal, pointing out that it conflicts with the text of the 14th Amendment. I am not sure they should be so certain; some conservatives have a legal theory for why the Amendment does not in fact guarantee birthright citizenship. It’s a bad theory, and many conservatives don’t buy it either, but there are plenty of legal theories I find absurd that have been adopted by the Supreme Court, and what matters is not what the text of the Constitution says but what five justices think it says.
There is a danger, however, that those who want to protect birthright citizenship will be drawn into a legal argument over the meaning of the 14th Amendment, and will fail to emphasize the reasons why birthright citizenship is actually important and sensible. I recognize that having this conversation at all is “playing Trump’s game” in a certain sense: Trump wants to put birthright citizenship “up for debate,” turning it from settled law into a “some people think X, some people think Y” issue. Even to discuss the issue is a bad idea, because we appear to be admitting that it ought to be discussed. I do not admit that. I think that it’s an inhuman disgrace to strip people who were born here of their legal protections, and make them second-class citizens (or rather, second class noncitizens—in America, even our second-class citizens aren’t citizens). Debating this question makes me morally queasy.
However, with the resurgence of ugly nationalism, I imagine the issue is not going away. And I am worried that whenever it comes up, a lot of people will talk about the 14th Amendment without explaining why we need birthright citizenship to begin with. Most nations do not have this policy (though it is far from, as Trump says, being exclusive to the U.S.), and some may not know how to defend it. One National Review writer says that it is a “nutty policy” that we’re “stuck with” because of the Constitution, and I think we must be careful not to simply agree that we’re stuck with it without simultaneously pointing out that it isn’t nutty at all.
Those who oppose birthright citizenship often dwell mostly on their interpretation of the 14th Amendment. Here is a Wall Street Journal op-ed from today, making the “case against” the right. Note that most of the op-ed isn’t actually a case against having the right; it’s a case that it isn’t required by the Constitution, as if that implies that the right is also a bad thing. But the 14th Amendment can’t tell us whether we ought to give all U.S.-born babies citizenship. When the writer does come to their argument for getting rid of it, here is what he says:
Few developed nations—and none of the countries in Europe, which many Americans want to emulate—practice the rule of jus soli, or “right of soil.” More common is jus sanguinis, “right of blood, by which a child’s citizenship determined by parental citizenship, not place of birth. After first securing the nation’s safety, America’s immigration policy should be an extension of America’s liberating first principles. That means it should be based on the consent of the governed and the rule of law, and a deliberate and self-confident policy of patriotic assimilation. Birthright citizenship does not meet this rubric. It ignores the principle of consent annunciated in the Declaration of Independence, undermines the rule of law established in the Constitution, and belittles the idea of citizenship and naturalization—the source of America’s uniquely successful immigration story.
Here is another “normative” argument, added by the National Review writer:
Many of us think that in today’s world, birthright citizenship is an insane policy that undermines our sovereignty. Why reward people who come here illegally with citizenship for their kids?
Now, first: The fact that European countries don’t do this tells us absolutely nothing. Like most lefties, I want to copy the good aspects of Europe (scrumptious food, single-payer healthcare) and discard the bad ones (nationalism, continental philosophy). America’s multiethnic character, its history of liberal immigration, its grant of citizenship to all babies: These are things that distinguish this country. They are our moral “gold stars,” a small reason to be proud despite the many horrible things our country has done over the course of its history. If birthright citizenship puts us in the minority of countries, well, in that respect we’re better than other countries! Well done, U.S.!
But what about all stuff concerning “liberating first principles”? Consent of the governed and all that. When conservatives say the 14th Amendment doesn’t grant birthright citizenship, one of the things they say is that only those who “owe allegiance to” the United States are considered to be part of its political jurisdiction. By giving foreign children citizenship, aren’t we allowing them to circumvent the process by which a person’s allegiance is switched? What about “the idea of citizenship and naturalization”?
I think the major mistake here is focusing on the status of the parent rather than the status of the child. If we think about this from the child’s perspective, we realize that not granting birthright citizenship is far “nuttier” than granting it. A child, conceived in the U.S., is born in a U.S. hospital. Not a moment of their life has been spent anywhere but the U.S. They have never seen another country. Where is the child from? Having citizenship in your “country of birth” makes much more sense to me than having it run through “blood,” and having your “allegiance” depend on what the “allegiance” of the womb you popped out of was. Having a baby who has never seen France owe their loyalty to France, when they will grow up indistinguishable from any other American, strikes me as strange.
This framework creates actual absurdities. A child is born in the U.S. to a British mother, who is a graduate student. When the child is still very young, the mother dies, and the child is raised by a close friend. The child does not even know their parentage, and is raised as part of the other family. Are we really to say that the child, who has never spent a minute of life outside the U.S. and cannot even remember interacting with a British person, is somehow British? The child is not an “immigrant,” because the child never came here. The child has always been here! I think the writer who worries about “parents being rewarded for coming here illegally and having a child” is missing half the story: What about the punishment of a child who was born in the same place, and raised in the same manner, with the same degree of loyalty, as every other child in the neighborhood, but is not considered part of the country because of a legal violation committed by a parent? I am less concerned about “rewarding” parents (especially since that reward costs us hardly anything) than with punishing children (which does cost them something, namely all of their equal rights in the country they have lived in their entire lives). They are a kind of non-person, unrepresented in government because of an offense that they did not commit and may not even have known about. Born here, raised here, gone to school here, paid taxes here, worked here, yet somehow… not from here.
Of course, even with birthright citizenship in place, you will get plenty of injustices of this kind. A child who is born elsewhere, but comes here at a very young age with unauthorized parents, and grows up totally American, with American friends, American loyalties, speaking no other language, can find themselves deported to a country they have no memory of! I don’t think this sort of thing embodies “social contract” principles. In fact, I think it flagrantly violates them: You have people who have completely “assimilated,” completely accepted the social contract, who are part of this country in every sense that their peers are, and yet who are excluded from political participation and subject to exile thanks to an offense they had no knowledge of by people other than themselves. Even with birthright citizenship in place, our immigration laws are monstrously unjust, and for people who have become part of the fabric of our country, the punishment of deportation to a land you have no connection to is drastically disproportionate to the initial offense of not having the proper paperwork. The idea that our immigration system is based on noble “principles” is laughable—I should know. I am an immigrant, and a citizen. I did absolutely nothing to earn my citizenship, other than being brought here at a young age. I took no test, I demonstrated no outstanding moral character. Yet I’m here, while plenty of others far worthier, with far more to lose, are summarily expelled (sometimes to their deaths). My parents are a little more deserving; they did take a test. But native-born people who came out of “authorized” wombs didn’t. Those who talk about “earning” citizenship frequently did absolutely nothing to earn their own, except win the birth lottery. If you want a merit-based system of citizenship, by all means introduce one. We can start by giving Donald Trump a civics test.
Personally, I find the entire concept of nation-states somewhat absurd, and hope someday the nations of the world can tear down their borders and allow everyone to come and go according as it pleases them. That, however, is a faraway dream. In the meantime, we need to loudly defend the few aspects of American law that are just and admirable, like granting those who are born here the rights they deserve. I don’t want to be baited into having a conversation about whether we “should” continue to grant birthright citizenship, as if the issue is worth discussing. But if this is going to be an issue pushed by the nationalist right, then the left needs to be prepared with a clear and compelling defense of this extremely important entitlement.
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