Birthrights & Wrongs

Do you think much about “why?” you are a citizen? For most Americans, it’s simply an existential state: I am, therefore I am an American. Or perhaps, I am an American, therefore I pay taxes. As an expat, citizenship has more immediate resonance. I remain an American citizen: I vote, pay taxes (state & federal), carry a US passport, and retain all the rights and obligations that ensue. I am also a foreigner. I carry a card (my residente permanente) with me at all times that explains my status in Mexico, as Mexican law requires. When I walk around in public, it is quite obvious ‘I’m not from around here,’ partly because I’m too blanco, too tall, and I walk with the quintessentially American ‘I’m in charge here’ stride. Citizenship affects my daily life.

Every nation has to decide how it determines who is a citizen. There are basically two options, known legally in Latin as Jus Sanguinus (the right of blood) or Jus Solis (the right of soil, as in location). In the former, you are what either of your parents is; under the latter, you are what you are based on where you were born. Neither is an absolute condition. Countries with birthright citizenship exempt the children of foreign diplomats, for example, and nations with blood citizenship often place limits of how far back you can claim descent (parents? grandparents? great-grandparents?).

The vast majority of nations today employ blood citizenship, and have throughout history. Birthright citizenship is a fairly new concept, historically, mostly used by new nations in the Western Hemisphere who were trying to encourage a growing population. These same countries also employed a version of immigration which basically allowed anybody (or at least anybody white, back in the day) to enter and then claim citizenship. There was a lot of land, not enough people, so those were the rules. Among the countries that had birthright citizenship and either restricted or eliminated it recently are Britain, Ireland, Australia, New Zealand and India.

While it has always been the practice in the United States, the Constitution is silent on the issue. What? Aren’t there people screaming that President Trump’s order is UNCONSTITUTIONAL? Yes, yes there are. The original text of the Constitution has no language about citizenship rules, birthright or blood. The common practice was birthright, but that was all it was: common law. After the Civil War, some people wanted to exclude freed slaves from citizenship, and they claimed the slaves did not belong here as they were brought here against their will (further punishment, what a concept!). The 14th Amendment was written with specific text to cover this case and end the discussion. Here’s the important section:

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.”

Amendment XIV, US Constitution, 1868

Some folks on Trump’s side of the argument are trying to make a great deal out of the phrase “and subject to the jurisdiction thereof,” claiming that illegal aliens are not this (subject to the jurisdiction thereof) and therefore their children are not US citizens. The problem with this argument is those illegal immigrants are most certainly subject to our laws, most specifically, they may be deported. One would have to first claim they couldn’t be deported, which is hardly the case.

What about the concept of signing an Executive Order to change a Constitutional principal? Odd business, that, but not as off-the-wall as you might think. First off, many of the people claiming this is completely unacceptable didn’t blanch at then-president Biden’s attempt to ratify the Equal Rights Amendment with a statement, not even a formal order. Also, since the birthright concept is based on multiple judicial rulings (not the original text of the Constitution), generating a court case by promulgating an Executive Order and lawsuits to halt it is perfectly acceptable. Better to begin the formal amendment process in my opinion, but there is nothing to exclude getting a favorable review from the US Supreme Court, either.

As to the legal arguments: An originalist legal interpretation of the Constitution might hold this was specific language dealing with a specific case (freed slaves), and probably does not apply universally. However, the US Supreme Court did rule in the case of the United States vs Wong Kim Ark in 1898 that the same birthright rules apply to the children of immigrants. But hold your horses, that case involved legal immigrants! This is where things get really interesting.

The Justices in that case made birthright citizenship crystal clear, but they also pointed out two obvious exceptions. One was the aforementioned exclusion of children of diplomats, the other children born to a foreign occupying army. Yes, the Supreme Court stated that if a foreign army occupied US territory, and those soldiers had children in that territory, those children would not be US citizens. But why these exceptions? The diplomatic one is a reciprocal courtesy, one of those areas where the need to engage in foreign discourse creates one-off exceptions to normal rules (like the limited extra-territoriality of embassies). But the occupier’s children? Basically, they don’t belong here, which is a value judgment. Thus even the seminal case affirming birthright citizenship has in its majority opinion language allowing for exclusion.

Will the courts use that? Of course the lower courts will hold that the matter is settled, and it is, according to precedent. The question is: is the precedent correct? That is a decision for the US Supreme Court. Overturning birthright citizenship would mean overturning a century of legal holdings, so the odds are long against it, but not impossible, especially if an originalist legal argument can build a simple majority among the justices.

The better question, lost in the pro/anti Trump noise: is birthright citizenship working for America today? There is nothing about the concept that screams “authoritarian” or “racist”, unless you think countries like the UK, Ireland, and New Zealand have those attributes. There is nothing inherently American in birthright citizenship, that is, nothing essential for America’s self-concept. It is a historical legacy, true. But how is it working?

“Au contraire!” Professor David W. Blight responds in The Atlantic. He calls birthright citizenship “A Sacred Guarantee,” and he’s right, with respect to freed slaves. But his argument goes further to suggest what’s really at stake is equality before the law, which is also in the 14th Amendment. But that’s a separate section, unaffected by the citizenship clause. And the Supreme Court has already held that equality before the law extends beyond citizenship to everyone physically in the Unites States, including foreign diplomats, visitors, and even enemy Prisoners of War (an issue which cropped up with respect to the terrorists held at Guantanamo Bay, Cuba)!

Even before the 14th Amendment, America employed birthright citizenship because we wanted to encourage population growth, and not that many people wanted to come. Is that still the case? There are documented cases of birth tourism, where pregnant women from countries like China pay to to gain an entry visa near a due-date, then stay and deliver a brand new American citizen before returning home. The numbers are not large, but I know no one who thinks this is a good idea. There are also “accidental Americans,” people who were born in America to visiting foreign parents who later get a note from the US IRS explaining they owe taxes and fines for not submitting annual returns! And of course the millions of children of illegal immigrants (or the undocumented, if you prefer) present another form of challenge. Try to detain them as a family and the courts have held you can’t hold the children as they have done nothing wrong. Try to deport the parents and you risk splitting up a family. Why do we privilege those who flout the immigration system but then have children, too?

Some suggest dire consequences if birthright citizenship is banished. Much of this is simple hysteria: other forms of citizenship are in force all over the world, so it’s not exactly an unknown concept. For example, the vast majority of people in the USA at the time the law–or its interpretation —is changed would be simply “grandfathered” in as citizens. So, no, I wouldn’t have to go back and prove my parents were Americans. Going forward one would, but that is increasingly the way of things, as anybody who went and got the new REAL ID knows.

The Washington Post recently had a scary story about the possibility of mothers in labor being turned away from hospitals because they don’t have a US passport. They warned about the administrative burden for hospitals having to “affirm” citizenship of newborns. There is even the emotional account of a woman whose premature labor results in her son being born before President Trump’s edict goes into effect, thus “I know he will be able to live in peace in this country.” The problem with such “reporting”? Hospitals can’t turn anyone away for their papers: it’s the law (and it is how many illegal/undocumented persons get emergency room health care). A birth certificate doesn’t need to be issued in the hospital; it was a matter of convenience that can easily be transferred back to the local government. And an administrative burden? Really? Like hospitals don’t require forms and proofs already? Finally, the mother and child story almost prove the point: is this how citizenship should work?

Carlos Lozada (himself a naturalized American citizen) wrote in the New York Times “the practice (birthright citizenship) has become an essential trait of our national character.” What does that even mean? Is it unchanging and unchangeable? Slavery was an essential trait of our national character for ninety years, too.

There is a valuable debate to be had about our existing immigration and citizenship laws. It is necessary and overdue, but must be had without unnecessary inflammatory rhetoric. Very many nations, nations we respect, use blood citizenship. America has used birthright citizenship for a very long time. This issue should not be decided based on who proposes it, or what racist ulterior motives can be ascribed to them. It should be decided on one point alone: what works best for America today?