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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
Stop saying reasonable things on the internet. That isn’t allowed.
I tend to agree.
Birthright citizenship is an almost exclusively American thing, by which I mean of the Americas. Most countries use jus sanguinis: citizenship derives from parents. Only the dark blue countries in this map have unconditional birthright citizenship; light blue countries have a restricted version. The very lightest blue (e.g., India) have abolished it.
Source: https://en.wikipedia.org/wiki/Jus_soli
In short,
You are so right. We are one of only a handful of developed nations which grant unconditional birthright citizenship.
It is an incentive for foreigners of all kinds: border-jumpers, wealthy Chinese–to drop babies here, who will later be able to claim a right to citizenship.
Why?
If the mother enters illegally, in defiance, herself, of the laws of our country, not intending to be subject to our “jurisdiction”, that is, the laws and sovereignty of the US,
then she is an invader, and a child of hers birthed on our soil is no citizen.
Down with birthright citizenship.
The Anton article is behind a paywall. What exactly was he proposing?
I agree with you in general, Maj.
My initial thought has been to support the end of birthright citizenship in general, but to continue to allow it for anyone born to a mother who was a citizen or permanent legal resident. The language could be a slight alteration to the existing first sentence of the 14th Amendment clause:
This might have to be tweaked a bit further to account for genetic vs. gestational motherhood.
Congress would continue to have authority to confer citizenship in other categories, which I believe it already does. For example, there are a variety of statutes conferring citizenship on children of US citizens born abroad, in a variety of circumstances (here is a State Dep’t summary)
If this is done, it should be done prospectively only. There would be huge constitutional problems to do it retroactively.
aside:
It annoys me when people forget the meaning of AND
Exactly. “AND subject to the jurisdiction thereof” …..
Mike Rosen said the only thing that makes sense to me (wildly paraphrasing). Citizenship is based on loyalty. If one of your parents is an American citizen, it doesn’t matter if you’re born in Timbuktu, you’re in! If neither of your parents is an American citizen, it doesn’t matter if you’re born on the steps of the nation’s Capitol. No citizenship for you. Get in line and earn it.
I didn’t read the linked to Federalist article (yet), but Robert Tracinski is right: this entire discussion, especially put forward by people such as The Bravest Man in the World aka Michael Anton, smacks of racial animus. You don’t have to squint very hard to see the words “keep out the brown people” between these lines.
And why is this a feature of the Americas? What does the Western Hemisphere have that the Old World lacks? Here we have Nations not formed around ethnicities.
Before you radicals teardown over 100 years of American tradition I demand actual demonstration of the harm our birthright citizenship has actually caused to you. Instead I read a petulant argument about how unfair it is to be so generous, without an explanation of how this generosity in anyway diminishes anything you already posses. America has been able to absorb contless waves of immigrants, not inspite of our birthright citizenship but because of it. Everyone who manages to make a living in our land knows that their children born on our soil have a place and stake in this great Nation. More importantly it removes any doubt about the validity of the citizenship of any long established group within our nation. The removal of Birthright citizenship instantly creates the possibility of the creation of a second class citizenry.
So, no. This is not a good idea. It is a terrible idea, one that solves no real problem but creates one where none existed.
If I understand the proposal correctly — i.e., that birthright citizenship applies only to children born to citizens and permanent legal residents — this has always struck me as a smart and popular.
If Congress were to send something along these lines to the president to sign, it’d have my full support.
Agreed, @garyrobbins. It would be madness (and unjust) to do it retroactively.
If they had meant the “subject to jurisdiction” clause to apply only to children of diplomats, why not just say that? They definitely had that in mind, but they chose to use broader language to express it which means we don’t have to interpret it so strictly.
To answer the question, I would say:
Again, I read his proposal as doing away with automatic birthright citizenship for children whose parents lack citizenship or permanent legal status. It seems these harms can be greatly ameliorated without causing any damage.
Am I missing something?
Again, I would oppose any attempts to apply this retroactively. I’d be happy with the law explicitly stating that.
Here’s my issue with this discussion: we view racism through the question of individual intentions. “I’m not a bad person! I don’t use racial slurs or discriminate, so I can’t be racist!” Same thing for everything written here, including the comments – it doesn’t have overtly nativist or racist or otherwise offensive language, so it’s fine, right?
From the post: “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.”
Nobody said anything about black or brown people when they debated it, and the people making policy are (mostly) good people, so it can’t be racist? The question in my mind is: who does it disproportionately affect? Answer: non-white people. That’s suspect enough as it is. And when its being put forward by the likes of Michael Anton and other vocal Trump supporters of the “s***hole countries” mentality? I don’t know what I’m missing here.
Conservatives should reject Trump’s nativist siren song and reaffirm the legal and policy vitality of one of the Republican Party’s greatest achievements: the 14th Amendment. Under its text, structure and history, anyone born on American territory, no matter their national origin, ethnicity or station in life, is a US citizen.
Although the original Constitution required citizenship for federal office, it never defined it. The 14th Amendment, however, provides that “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.” Congress did not draft this language to alter the concept of citizenship but to affirm American practice dating from the origins of our republic.
With the exception of a few years before the Civil War, the United States followed the British rule of jus solis (citizenship defined by birthplace) rather than the rule of jus sanguinis (citizenship defined by that of parents), which still prevails in much of continental Europe. As the 18th century English jurist William Blackstone explained: “The children of aliens, born here in England, are generally speaking, natural-born subjects, and entitled to all the privileges of such.”
After the Civil War, congressional Republicans drafted the 14th Amendment to correct one of slavery’s grave distortions of our law. In Dred Scott vs. Sanford (1857), Chief Justice Roger Taney found that slaves, even though born in the United States, could never become citizens. The 14th Amendment directly overruled Dred Scott by declaring that anyone born in the US, irrespective of race, is a citizen. It also removed from the majoritarian political process the ability to revoke the citizenship of children born to members of disfavored ethnic, religious or political minorities.
The only way to avoid this straightforward understanding is to misread “subject to the jurisdiction thereof” as an exception that swallows the jus solis rule. Some scholars have argued that this language must refer to aliens, who owe allegiance to another nation and not the United States. We disagree.
Proponents of “allegiance” citizenship do not appreciate the consequences of opening this Pandora’s box. Among other problems, such a standard could spell trouble for millions of dual citizens, who certainly owe allegiance to more than one country. This is not an entirely speculative concern; during World Wars I and II, public sentiment ran strongly against German Americans or Japanese Americans.
More generally, the whole notion of national loyalty is open-ended, requires person specific determinations and would put the government in the business of reviewing the ancestry of its citizens. Washington and the states would have to pour even more resources into already dysfunctional immigration and security bureaucracies that cannot even control the borders. Reading allegiance into the 14th Amendment would largely defeat the intent of its drafters, who wanted to prevent politicians from denying citizenship to those they considered insufficiently American.
I don’t agree. It was an error, ab initio, to ever grant citizenship to the spawn of persons who entered illegally..
I take it this is sarcasm?
I mean, I would imagine that someone on a conservative site is not going to use the leftist “Disparate Impact” standard. Plus an ad hominem argument that is straight out of the democratic party talking points – If those people say it, it is racist.
Racism is bias based on race. It is defined by intent. If I prefer basketball to hockey, I will spend more time watching black athletes than white athletes. That is only racist if I prefer basketball because black people tend to dominate the sport. But you know this and are just being facetious, right?
@johnyoo, to confirm, your argument is that a child born to tourists during a 24-hour visit to the US should not only be entitled to US citizenship, but that anything less is giving into nativism?
Except for all the brown people who are already citizens and/or legal immigrants and whose children will be completely unaffected by this.
So what?
The “disproportionate impact” standard, when applied to an otherwise reasonable policy is, essentially, declaring that policy’s supporters to be guilty of “racial animus” unless proven innocent. That pretty clearly fits the definition of “bad faith.”
This fails to convince me. I maintain the spawn of invaders, or casual visitors, should not be considered citizens.
Why should they? Can you, Yoo, answer that? Is it just cuz there are so many of ’em? Point proven.
And: so what?
You cant scare me off by invoking the mere specter of Brown, or worse, Black,! 😱 Discrimination. Yuh. There are various races in the world. Pretend you don’t notice if you want.
#NotHelping
The 14th Amendment was intended to address the status of former slaves, most if not all of whom were born in the United States, had lived there all their lives, and had neither the means nor the intent to go anywhere else. It defies belief to say that the writers of the amendment (and we’re all about original intent around here) intended it to apply to foreigners on tourist visas, especially those who showed clear intent to game the system.
@majestyk is a strong decoupler, not a contextualizer. I agree this is one of those issues that the wider culture (on both sides) tends to contextualize. The wider context matters in practical politics, even when we wish it didn’t, so you’re not wrong to point it out. But if anyone can decouple this issue, to focus on it for its own sake rather than using it as a football in a wider, race-tinged game, I think Majestyk can.
Even when wider politics is hard to avoid, there at benefits to discussing an idea on its merits.
Also: The Russian lady in the OP looks pretty white to me.
Just sayin’.
Did you just assume xer gender?
I think it is helping. Really, why should we, alone among the nations of the Earth, be afraid to embrace the ethnic heritage of our founders? .
I have now asked a few times. Crickets!!
Let me be clear:the spawn of anyone who sneaks across the border and drops a baby should not be a citizen.
I ask again: why should they be?
Of what possible benefit is it to our country that they be–especially now that we are a welfare state?
It is ludicrous to say that abolishing birthright citizenship is racist.
See,I unlike Mr. Hadra, am color-blind.