In Defense of Birthright Citizenship

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There’s been a lot of discussion around here the last day or two about birthright citizenship in the US as well as immigration. It has been mostly driven by the Republican candidates for president, led mostly by Donald Trump, suggesting a “re-examination” of birthright citizenship. The truth is, there isn’t anything to examine - the text of the constitution is straight forward, the policies have been in place for over a century, and it works. In fact, if we’re going to be talking about immigration reform (and that’s what part of this stems from), we should be talking about making immigration easier, not harder.

(A quick aside about me: I’ve been reading LGF for years, but only recently registered and this is my first page. I have a degree in political science, I have a law degree, and I have had more than a passing interest in law and politics for longer than I care to admit - so I’m not just some random guy yelling at clouds… I’m some random guy who knows what he’s yelling about to those clouds.)

So, let’s start with the constitution and history (you can’t know where you’re going without knowing where you are, and you can’t know where you are without knowing where you’ve been). Naturalization laws were left to Congress in Article I, Section 8. And in 1790, Congress passed the first law regarding citizenship:

That any alien, being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof, on application to any common law court of record, in any one of the states wherein he shall have resided for the term of one year at least, and making proof to the satisfaction of such court, that he is a person of good character, and taking the oath or affirmation prescribed by law, to ‘support the constitution of the United States, which oath or affirmation such court shall administer

The law also provided that any child under 21 years of age would also be automatically naturalized. It provided that any child born to an American citizen “that may be born beyond sea, or out of the limits of
the United States, shall be considered as natural born citizens” - with the caveat that the father had to have been a resident of the United States.

During the Adams Administration, there was growing hostility to immigrants - which lead to the Alien and Seditions Acts, as well as increasing the residency requirements for citizenship to 14 years. By 1802, during Jefferson’s presidency, the residency requirement was reduced to 5 years. By 1824, the residency requirement went back to 2 years.

Of course, the first “four score and seven years” of American history had the complicating factor of slavery. A slave was property and thus couldn’t be a citizen. But what about a freed slave? Or a freeborn African American? In 1856, the Supreme Court issued one of the most notorious decisions in its history - the Dred Scot case - where they held:

A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a “citizen” within the meaning of the Constitution of the United States.

When the Constitution was adopted, they were not regarded in any of the States as members of the community which constituted the State, and were not numbered among its “people or citizens.” Consequently, the special rights and immunities guarantied to citizens do not apply to them. And not being “citizens” within the meaning of the Constitution, they are not entitled to sue in that character in a court of the United States, and the Circuit Court has not jurisdiction in such a suit.

Following the Civil War, Congress passed the Civil Rights Act of 1866. This was the first time that Congress codified birthright citizenship:

That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States ; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States, to make their rights and enforce contracts, to sue, be parties, and give evidence, to inherit, and obligations purchase, lease, sell, hold, and convey real and personal property, and to full and equal benefit of all laws and proceedings for the security of person and property, as is enjoyed by white citizens, and shall be subject to like punishment, pains, and penalties, and to none other, any law, statute, ordinance, regulation, or custom, to the contrary notwithstanding .

Birthright citizenship was also included in the text of the Fourteenth 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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The last point I’ll mention is the US v Wong Kim Ark case. Mr. Wong was born in San Francisco, his parents were subjects of the Chinese Empire, but residing in San Francisco. Mr. Wong traveled to and from China multiple times, and then on his third return visit, was denied entry under the Chinese Exclusion Act (a law that forbid immigration from China, a reminder that race and fear of outsiders isn’t something new in our politics). The Supreme Court held that Mr. Wong was a natural born citizen and could not be prevented from returning to the United States:

A child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution,

“All person 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.”

In the last few years, there’s been some debate regarding this ruling and the 14th Amendment within the legal world, specifically what constitutes being “subject to the jurisdiction” of the United States. For an example of the debate, here’s a transcript from a law review symposium at Florida International University School of Law from 2011. John Eastman, who argues for a limited reading of “subject to the jurisdiction”, was my constitutional law professor at Chapman. He’s someone that I like and occasionally agree with, but my libertarianism and his conservativism have often been at odds. Eastman’s position is basically that illegal aliens are not “subject to the jurisdiction” of the United States and thus neither are their children.

The inherent problem with this line of thinking is that it is based on the idea of one’s allegiance at birth and you can’t really proscribe an allegiance to a newborn. It is, for lack of a better term, a pre-Industrial view of the world - something that I think runs through much of Eastman’s legal views (he also supports a return to the Lochner era which would severely limit the power of the federal (and state) governments under the commerce clause).

Rather, the more logical view is that allegiance is something that develops over time and based on experience. You are not born a Lakers fan, or a Yankees fan, or (may the gods save you) a Cowboys fan. You develop those allegiances over time and through experience. It is the same for one’s allegiance to a country. If you want people to have an allegiance to the US, there needs to be a reason for them to develop it. Telling them, from birth, that they are not citizens, that they are not American, that they are different, is the surest way to prevent any such allegiance.

Some will argue that we should do away with birthright citizenship because so many other first world nations have. Many who argue that will also preach American exceptionalism and completely miss the irony of doing so. They will also ignore that birthright citizenship hasn’t been completely eliminated in many of those countries, only modified based on the residency of parents (assuming neither parent is a citizen). They also tend to ignore the fact that in Europe, the continent is becoming more integrated - for example, since 1992, EU citizenship allows peoples of Europe free movement across member nations as well as the right to settlement and employment, clouding the meaning of citizenship.

Those who argue for ending birthright citizenship should absolutely have the burden of proving why it should be changed. Especially in light of the history outlined above - while it has been an evolution, particularly with respect to race, citizenship laws in the US have historically become more inclusive, not less (much like all of our civil rights laws).

The truth is, though, that birthright citizenship works and there is no reason to change it. In fact, the alternatives would mean more bureaucracy and costs - not just for government, but for individuals. As it stands today, if you’re born in the United States, you’re a citizen (except for children of diplomats). Your birth certificate proves your citizenship. But what if birthright citizenship is taken away?

If those opposed to birthright citizenship have their way, that means parents of a newborn, in order to establish citizenship for that child, would have to prove their own (or prove their residency, if there was a residency requirement). The easiest way to do that would be with a passport - but not everyone has a valid passport - a drivers’ license and/or Social Security Card wouldn’t necessarily be enough. But that’s not all…

The children of refugees and asylum seekers could become “stateless.” This is problematic for a variety of reasons. First and foremost, it would be a violation of the UN’s Universal Declaration of Human Rights, which guarantees all persons the right to citizenship in a nation (we are signatories to the Declaration and were proponents of its adoption). Beyond that, these stateless individuals would exist in a legal netherworld. They would not be able to travel. They may not be able to get jobs.

It is said that approximately half of the 11 million illegal immigrants in the US today came here legally and overstayed their visas (which is a reminder that the border wall/fence is mostly a distraction, but that’s another post for another day). So, what happens to a child born in the US to parents who overstayed a visa? What if they overstayed because the mother wasn’t medically cleared to travel? What if it their visas weren’t renewed due to a clerical error?

How do we address the citizenship of children of permanent resident aliens?

Even if we use the boogeyman of the person who sneaked across the border and had a child born in the US… the logic fails. In effect, you will be holding the newborn child responsible for the alleged crimes of his/her parents. And again, you create a situation where a person grows up in this country who has no reason to have any allegiance to it. Denying birthright citizenship to these children doesn’t make America better, it sows resentment - the parents will resent the fact that “we” have decided that their children do not deserve the better life that our children do; the children, growing up in the United States, will eventually come to resent the same fact when they can’t go to college or get a job because they are not “legally” in the only country they’ve ever known.

Birthright citizenship doesn’t just help promote the allegiance of the children of immigrants - it promotes the allegiance of immigrants (legal or not). Immigrants come to America seeking a better life, for themselves and their children - this is part of the American mythos. By guaranteeing the children of immigrants American citizenship, we ensure that the parents will want to become a part of our community, that they will not want it to fail.

Eliminating birthright citizenship doesn’t make America better. In fact, it weakens our society. It would promote xenophobia and racism by allowing a certain segment of the population to hold everyone that doesn’t look (or sound) a certain way as suspect. It would create a costly new bureaucracy that would put the onus on ordinary citizens to prove something that we all take for granted. And, it would not solve any real problems.

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Last updated: 2021-06-05 2:51 pm PDT
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