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End Birthright Citizenship
Oleysa Suhareva traveled from Russia to Miami to give birth.
Last week, Michael Anton (of “The Flight 93 Election” fame) wrote an op-ed in the Washington Post titled “Citizenship Shouldn’t be a Birthright,” which has caused paroxysms of huffing outrage from all of the predictable quarters of the left. A worse messenger for a perfectly sensible message would be hard to locate, but it isn’t merely the identity of the author that has people up in arms.
Monday, even the otherwise calm and reasoned Robert Tracinski wrote quite a doozy at The Federalist. Titled “Ending birthright citizenship will make the Republican Party look like the party of Dred Scott,” Robert responds to Anton’s op-ed with several hyperbolic claims that give undue credence to the left’s continuous charge that anything a Republican ever does (including breathe) is racist:
Anton’s proposal will be overwhelmingly interpreted as a declaration to black Americans that the Republican Party—the party that drafted the Fourteenth Amendment in the first place—now does not see them as equal citizens.
Excuse me, but this argument is so poor that it must be considered the leader in the clubhouse for non sequitur of the year. Not for nothing, when did Democrats start countenancing Republican policy proposals as anything other than racism? Welfare reform? That’s racist. Voter ID? Also racist. Border enforcement? Totally racist. Prisons and law enforcement? Super-duper racist. Even tax reform was pilloried as racist because it would disproportionately benefit whites according to its critics.
It’s true that the Democrats’ penchant for shouting “racist!” isn’t enough to dispel the possibility that this policy proposal didn’t stem from some wellspring of latent pro-white sentiment, however. So, what precisely is anti-black about the prospect of denying foreigners the right to have their children receive citizenship just for being born on our dirt? Nothing that I can see.
It’s an argument that doesn’t doesn’t even make sense, and no answer as to why is in the offing. Clearly, all African Americans who are currently citizens (and their children, by extension) are citizens. Anton’s proposal wouldn’t affect that one whit.
So, what exactly is the contemplated change? To understand this, you have to understand the history of Birthright Citizenship, which goes back (as most people will recall from history class) to the 14th Amendment. It 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 reasoning behind this is pretty straightforward. The 14th Amendment was necessary to annul the horrific Dred Scott decision, and was worded as it was to nullify the idea that black slaves and their children couldn’t even be citizens of the United States by dint of some spurious claims of “inferiority.” This, of course, was back when people had the will to do the hard work required to amend the Constitution if legislation or Court decisions went against them, rather than trying to enforce their will through judicial fiat — but that’s another story.
The trouble here arises from the term “all persons born or naturalized in the United States, and subject to the jurisdiction thereof,” which under modern understanding includes people whose parents were neither born here or naturalized; i.e., people who are not citizens or legal residents of this nation. This understanding, however, is merely an extension of the Wong Kim Ark case in which the Court held that the children of legal immigrants were granted citizenship. Congress could clarify that definition with a simple statutory modification.
But this is all dancing around the central issue: Why should we do away with birthright citizenship? First and foremost because there’s no reason for us to give something away to foreigners for nothing which is so intrinsically valuable. Citizenship is literally for sale in many nations of the world for a variety of prices. American citizenship (it should come as no shock) is worth a boatload to its possessor. A person with birthright citizenship can essentially never be deported, and thanks to the various and sundry welfare laws in our country, the nation is statutorily obligated to care for him in the event of his incapacity. This is a massive windfall for merely having had the good fortune to have been birthed within the confines of our nation.
The current policy also leads to absurdities, such as Birth Tourism, whereby foreigners (like from the left’s favorite country, Russia!) travel to the United States for the sole purpose of having their baby so that it will gain US citizenship … and thereby have a bolthole in the event things go sideways in their home country. To wit:
Why do they come? “American passport is a big plus for the baby. Why not?” Olesia Reshetova, 31, told NBC News.
Indeed. Why are we so stupid as to give something away which is obviously worth so much?
Reciprocity is another reason why this policy needs to be modified. If you’re a pregnant Spanish tourist and deliver your child here in the US, citizenship is automatic. If you’re an American in Spain? Buena suerte, chica. There’s simply no reason for us to have such an expansive policy when other nations don’t.
I can hear some people saying, “but American citizenship is a windfall that you were an unjust recipient of!” That is completely accurate. But I would point such people to other things such as “inheritance” or “having caring, intelligent parents” that are similarly “unjust” but about which conservatives are rightly nonplussed by comparison. Citizenship is a thing that we will to our children merely by having them.
What was the Founders’ opinion about this windfall? Well, we could also look at the Preamble of the Constitution for some guidance:
We the People of the United States, in Order to form a more perfect Union, establish Justice, insure domestic Tranquility, provide for the common defence, promote the general Welfare, and secure the Blessings of Liberty to ourselves and our Posterity, do ordain and establish this Constitution for the United States of America. [emphasis mine]
To whom were the blessings of liberty to be secured by the formation of this nation? Ourselves and our posterity … our children. Explicitly not the children of foreigners who sneaked into the nation. Worth noting is that the notions of “Justice” and “Domestic Tranquility” surely must include fair and even enforcement of the law and an expectation of peace which comes from knowing that the people who surround you are also citizens or legal immigrants to the nation.
How many other nations in the world have birthright citizenship? Many, mostly in the Western Hemisphere, but not all. Is there precedent for revoking birthright citizenship? Yes. In 1986, Australia imposed restrictions upon birthright citizenship, holding that at least one parent of a child must have legal, permanent residency in Australia in order to gain citizenship there. It’s possible the deliberations of the Australian Parliament in Canberra centered solely upon the need to deprive non-whites of Australian citizenship, but somehow I doubt it. India (curiously, another Anglosphere nation) abolished it utterly in 2004. Worth noting: neither of these countries were subducted by vengeful flames into the Earth’s molten core for daring to remove birthright citizenship either.
Given my druthers, citizenship and residency would work on a sliding scale, whereby people gain full citizenship in our nation via a demonstration of merit. That isn’t the world we live in, and I am utterly resigned to that fact. But I’m also not the sort of person who will allow a presumed image of perfection to be the enemy of the good. Therefore, down with birthright citizenship. It is both a travesty and a con played upon our children and the future of our nation.
Published in Immigration
You realize that our immigration laws can’t be expressly designed around the whims of one aspiring college student, yes?
Gee, I never heard that one before.
Immigrant voting patterns of the past 50 years have been in place long before the Republican party became the party of immigration hawks (and its a major reason that wing of the party have gained ascendancy). They weren’t tripping over themselves to become Republicans because they brought their left-leaning politics with them, and over time became converted to progressive identitarianism through a combination of in-group party dynamics and progressive indoctrination through media and the educational system.
Even among the many immigrants seeking our economic environment, we have confirmation (if we didn’t know already) of advocates for “improving” this country with thinly veiled socialistic voting. Example:
https://www.bbc.com/news/world-us-canada-44732337
I have only a qualified response to this young woman’s predicament, so if the article was supposed to open a river of sympathy, it didn’t. Who is she to come in (or her parents) and decide to “improve” us, why does she think she is such a blessing to us that we can absorb and fund endless others with their needs for basic education etc.? No, she didn’t make the original decision, but our hospitality has been abused and the interview doesn’t reveal a trace of reflection about that, or appreciation/comprehension of the foundational system she barged into, just a kind of “why target poor me” point of view.
For those interested: the OP woman’s Instagram page. Maybe it would have helped his case had he not chosen someone so… photogenic. ;)
I believe that in Switzerland even children of citizens are not automatically granted citizenship. They must earn it themselves.
Can you provide any quotes for this?
He’s appealing to our female members, and their secret fear of foreign hotties stealing the home-grown men-folk. The Trump-wife factor.
Not that they can’t, just that they don’t. When my wife lived in the US as a child, her parents spoke only Spanish in the home and only English outside, so she would learn both languages fluently. When they moved back to South America, they spoke only English in the home and Spanish outside, to maintain fluency. Why is that a problem?
Yes, that was the core of my argument. I am defeated.
@mikeh Comes pretty close in comment #205:
“I’m not even sure I’ve advocated birthright citizenship on this thread. I’m advocating for letting people live here, irrespective of their status. If birthright citizenship lets more people do that, then fine. But the citizenship is much less valuable than permanent residency.”
[comment edited to remove weird text]
Ok, anyone besides Mike H? I don’t think anyone else on this thread had taken the position you stated.
No offense, Mike H, but you’re an outlier!
lol, no offense taken, I was going to say, don’t use someone as ridiculous a me as an example!
I have not seen anyone answer Shawn’s question:
I interpreted that as rhetorical. You can’t just assume we all believe the silly premise of his question because we didn’t take it seriously.
No foreigners have the right to immigrate anywhere. Easy.
@valiuth is also close comment #240:
“The government exists to guarantee fundamental human rights through the application of justice and justice must be administered universally to all people regardless of status. Citizenship really offers and should offer nothing to the administration of justice. A noncitizen doesn’t have less human rights than a citizen, though they may have fewer civil privilages”
I won’t pretend to speak for Valiuth, but I don’t see what you’re referring to.
I would like to know what justice, human rights, and civil privileges mean in this context. To some on the left (and maybe on the right, hence the @) I could guess that would refer to staying in our country, regardless of status.
That was my impression, but perhaps I am conflating others opinions with yours, and if so I apologize.
In general, though, the libertarian argument never seems to rest on these considerations as much as I think they should. If I’ve been unfair, I’m sorry.
No apology necessary. I held a deeply weird position on SSM that was held by only one other person that I know.
This has been a very interesting post and discussion. I have a few comments:
(1) There doesn’t actually seem to be much of a disagreement about the core doctrine of birthright citizenship. It appears to me that virtually everybody agrees that a person born in the US, to a mother who is either a citizen or permanent legal resident, should be a citizen. So what we actually seem to be discussing is preventing things that many of us, though not all, see as abuses of the current rule for: (a) the children of illegal immigrants, and (b) the children of tourists or others present legally, but temporarily.
(2) I’m a litigation lawyer, so I may tend to think of the practicality of implementation more than most others. The current rule — i.e. automatic citizenship for anyone born in the US — has a significant advantage of ease of implementation. Under this rule, place of birth becomes the only fact that must be proven. Under a more complex rule, other factors must be considered, such as the citizenship or residency status of the mother at the time of a child’s birth. This will get even more complex over the generations, because given the passage of enough time, a person’s citizenship will rest upon determination of the citizenship or residency status of their great-great-great grandmother.
(3) It is important to remember that birthright citizenship is not the only option. Congress has power, through legislation, to correct many of the problems that might be created by a restriction of the birthright citizenship rule. For example, Congress could pass a law stating that if a person was born in the US, and that person’s mother was born in the US, then the person is automatically a US citizen. This could prevent the difficulty-of-proof problem I mentioned in (2) above.
(4) There have been some questions asked about the extent of the impact of this problem. I think that it’s pretty big, because of the current large numbers of illegal immigrants in the country. When they have children, and the children are citizens, it creates a serious political and practical problem with deportation, because often deporting an illegal immigrant will result in either: (a) breaking up the family of the illegal immigrant’s US-citizen child, or (b) sending a US citizen child to a foreign country with their illegal immigrant parent.
This is the most important aspect of the problem, in my opinion. Children of resident illegal immigrants being granted birth citizenship complicates deportations. This is a downside of the current policy. But as a practical matter, of the 12 million illegal immigrants living the US, a very tiny fraction will ever face deportation, no matter how much we intend to “crack down”.
(I actually think your option (b) is preferable. When the child is a minor we should prioritize keeping the family together.)
I think it would be a much bigger problem 10-20 years down the road if there were to be an entire generation of non-citizen children of illegal immigrants who have only known the United States as home. It would be cruel to deport them to their parents’ country of origin, where they might not be citizens, might have no friends or family, might not speak the language, know the culture, or never have visited. We Americans should do our best to integrate them into American society — make them citizens to acknowledge the fact that they are Americans — for their good and ours. Don’t hold their parents’ illegal actions against them. Don’t repel them from the conservative movement by being resentful or looking down upon them. Make them believe in the American dream.
I have a technical disagreement with this. I agree with you as a matter of policy and justice.
By definition, a constitutional amendment cannot violate the Constitution, with one exception not applicable here. Thus, a constitutional amendment could, theoretically, deprive people of citizenship without violating the Constitution.
For those interested, the limitations on amendment of the Constitution appear in the last clause of Article IV, which states:
The limitations on amendment that expired in 1808 involved immigration of persons and importation of slaves (Art. I, Sec. 9, Clause 1), and the requirement that direct taxes to be in proportion to the Census (Art. I, Sec. 9, Clause 4).
The sole remaining limitation is that a constitutional amendment cannot deprive a state of its equal suffrage in the Senate, without the consent of such state. Technically, this is not quite a prohibition on such an amendment, but rather a requirement that any such amendment — to be applicable to all of the states — would have to be approved by 100% of the states, rather than the ordinary 75%.
Ramesh has a good piece about this: https://www.bloomberg.com/view/articles/2018-07-25/birthright-citizenship-battle-misses-the-point
I understand and share your sympathies, but I’m inclined to disagree with your conclusion. I do not know whether you have considered the incentive effect of the sort of permissive rule that you suggest.
I think, in your hypothetical, that the party to blame is the illegal immigrant parent, not us. Your idea would continue the bad incentives of the current system. Another obvious advantage of a more strict rule, which I favor, is that it would create a significant disincentive for illegal immigrants to attempt to sneak in their children, or to have children while here (if birthright citizenship was abolished for such children). I would think that a loving parent would be very unlikely to subject their child to the sort of difficulties of deportation that you rightly identify.
You suggest we can’t punish the child for the parent’s crime. I say that holding firm to a policy that would not excuse the parent’s crime, despite the harsh consequences to the child, will be a very strong deterrent on the parent.
I do not apply this reasoning only to illegal immigrants, and I suspect that you do not, either. I know, for example, that many families consisting entirely of US citizens are broken up every year, when one or both parents are incarcerated. I suppose you might say that this is “cruel,” but I see it as unavoidable, and put the blame on the criminal parent, not on the rest of us. The alternative is that having a child is a “get out of jail free” card, and I don’t think that such a rule can work.
I can’t remember this reference, but it was on a fairly recent podcast here at Ricochet involving the interview of an expert on immigration. The expert said that, after Obama’s announcement of DACA, there was a very large surge in the number of illegal immigrants attempting to enter the country with children. This led directly to the current politically controversial problem of separating large numbers of small children from their parents, when the parents and children are caught entering illegally.
Ramesh is not wrong about universal, mandatory E-Verify. I simply think that an “all of the above” approach will work even better than only using that one stick.
Yes, of course. But blame doesn’t help anybody. Our policy should produce good results from the situation we are in.
I did previously pose the question, “if birthright citizenship were repealed, how much would it actually reduce illegal immigration?” I haven’t seen any attempts to answer it. Currently a large number of parents who immigrate illegally bring children with them, despite the fact that the children do not receive citizenship. That doesn’t point to a strong birthright citizenship incentive.
Perhaps it would have that practical effect, but inflicting harsh consequences on children to disincentivize parents behavior is not my favorite example of a morally sound policy.
This seems like a fairly straightforward argument against making a change. A similar dynamic happens with a spike in gun purchases every time a Democrat proposes new gun control.
By the way, @arizonapatriot, thank you for your calm, reasoned, and respectful comments. It’s a nice change of pace from the rest some other parts of the thread.
I thought someone tried to answer that. Wasn’t it ~7%?
What if it is only one person (or only 1%?) per year? That is one too many. In how many other countries is this issue a concern of its taxpayers? Why is that?
Tell you what. If you’ll just reimburse me for my % of both mother and babies medical/ hospital costs, I’ll stop worrying about this and get back to Winning the Peace. K?
Unless of course this cannot be divorced from Winning the Peace. Then you’re stuck with the bill and my complaining about the ‘nowhere in the Constitution’ problem of birthright citizenship.
Wow dude – really!?
P.S. Why are you not reading any of Majestyk’s comments? They seem pretty calm, reasoned, and respectful to me; but then again, maybe I have thicker skin than you do?
Sorry, expressio unius est exclusio alterius not intended — I could have worded it better, I didn’t literally mean the whole rest of the thread. I had some particular sets of comments in mind in which I was an interlocutor. Look back a few pages for editor’s redactions and whatnot. There’s also been some accusations of ad hominem.
I’m tracking.