Birthright Citizenship Isn’t Just The Law, It’s A Good Idea Too

In addition to being mandated by the Constitution, birthright citizenship goes to the core of what it means to be an American.

As I noted last week, President Trump threw something of a grenade into the immigration debate last week with the suggestion that he could sign an Executive Order that would eliminate birthright citizenship under the 14th Amendment for the children of undocumented immigrants. As I noted at the time, and as numerous legal scholars have stated since the President’s remarks and in the past, there is quite simply no support under the law for the idea that the President has the authority to rewrite the Constitution in the manner that President Trump suggests. Additionally, given Supreme Court rulings that go back the 1898 ruling in United States v. Wong Kim Ark, 169 U.S. 649 (1898) and affirmed most recently just about 30 years ago in in  Plyer v. Doe 457 U.S. 202 (1982), it is clear that birthright citizenship for virtually all children born within the territory of the United States is the only logical reading of the 14th Amendment’s citizenship clause. Therefore, the only way to eliminate birthright citizenship for the children of undocumented immigrants is through a Constitutional Amendment, which is obviously a harder thing to accomplish than either an Executive Order or Congressional legislation.

Leaving aside the legal arguments, though, birthright citizenship as it exists today is a good idea that should not be disturbed, especially since it would fundamentally alter what it means to be an American in a way that would have a negative impact on the nation and on our political culture. From the very beginning of the Republic, it has been the general rule that anyone born within the territory of the United States was an American citizen from birth. The only exceptions to this rule were African-Americans held in slavery and Native Americans. In the first case, that tragic and inexcusable omission was fixed only after a bloody Civil War and the ratification of the three Constitutional Amendments — the 13th, 14th, and 15th Amendments — that fundamentally altered not only those restrictions on citizenship and equal rights but also the relationship between the states and the Federal Government. With respect to citizenship, though, the guarantee that African-Americans would be treated as citizens under the law was put right in Section One of the 14th 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

With respect to Native Americans, the understanding at the time that the Amendment was ratified that those Native Americans living on reservations were effectively citizens of their respective tribes, which at the time were still recognized as what amounted to independent nations, Therefore, they were not “subject to the jurisdiction” of the United States. It was not until Congress adopted the Indian Citizenship Act in 1924 that this was changed and Native Americans were granted citizenship as were their descendants.

In any case, leaving aside these two exceptions, the United States has always been a nation where literally anyone could become a citizen either by being born here or by going through the naturalization process established by Congress. This was quite different from the citizenship rules that existed at the time in other parts of the world which depended on bloodlines and ancestry, a rule that still applies today in nations such as Germany and most of the rest of the world outside of the Western Hemisphere. It was a rather unique idea at the time, but it was appropriate for a new nation that was welcoming immigrants from all over the world who wanted to start a new life in a nation based on freedom and liberty. After the Civil War, the 14th Amendment was adopted in apart to codify that idea in the law once and for all. If you remove birthright citizenship or change it radically as the President, as well as Republicans such as Lindsey Graham, are proposing, that will change the nature of what it means to be an American forever. Moreover, to the extent that Republicans are concerned about the idea of immigrants who have not fully assimilated into American society, eliminating birthright citizenship would seem to not only guarantee that will continue but that it will continue across generations, thus creating divisions between people who live in the United States that didn’t exist before. One can argue that there are some social costs created by birthright citizenship, but they pale in comparison to the costs that would be incurred by society, culture, and the law if we ended it.

Additionally, the arguments against birthright citizenship hold little merit and are generally counterintuitive to the ideas that critics of the idea have of what immigration should be about. It is the idea that we are all citizens from birth or naturalization, for example, is what helps encourage quick assimilation by immigrants and to discourage the formation of what amounts to a second class of citizens who can never fully be a part of the nation in which they reside. The contrasts greatly with nations such as those in Europe, Asia, and Africa where citizenship is effectively conveyed not by soil by but by blood. In those nations, there are entire populations of people who are born residents of the nation in which they live but who can either never become citizens or can only do so by going through a long an laborious process that is designed to discourage them from even trying to do so. Because of this, we see nations like France and Germany with large populations of second-class citizens who never become fully integrated into the nations in which they live, and whose descendants grow up to find that they aren’t really considered citizens of the only nation they’ve ever called home. These children know little about the nation their parents came from, but because of the laws in the nation in which they live, they can’t claim to be citizens of their “home” country and often find themselves equally rejected by the nation of the parent’s origin. This leads to the creation of what effectively amounts to an underclass that, in addition to being an easy target for exploitation, can also be an easy target for radicalization by those who would recruit them to commit violent acts against people that they ought to consider to be their countrymen.

Arguing against birthright citizenship then is effectively to argue against fundamental parts of what it means to be American and what has made our nation what it is over the past nearly two and a half centuries. The first is the idea that we are all equally American regardless of where we or our parents came from and regardless of how they got here. As I noted above, this isn’t true in other parts of the world where citizenship is conferred by blood rather than birth or soil. One can live in Paris or Berlin one’s entire life and still not be considered wholly French or German. There is no such bar based on ethnicity or loyalty that applies in the United States. We all have a place of birth, and for those born within the territory of the United States, that birthplace is America. It doesn’t matter if your name is Smith and your family has been here since the 17th Century, or if your name is Gonzalez and your family has only been here since 1980. We’re all equally American, we all have the same rights under the Constitution and the law, and we all pledge allegiance to the nation that exists to defend those liberties.  To argue against that by saying that some people born here can never be “real” Americans because of where their parents came from or how they got here is, fundamentally, a rejection of everything this nation has ever stood for, and a contradiction of the promises made in the Declaration of Independence and the Constitution and reiterated by great Americans such as Abraham Lincoln in the Gettysburg Address and Martin Luther King, Jr. in his speech to the people who gathered in Washington on a hot day in August, 1963 to demand for themselves the rights guaranteed to them by virtue of the fact that they are American citizens and have been from the moment they were born. While there are other nations that have birthright citizenship, including Canada, Mexico, and a majority of the nations in the Western Hemisphere, the idea itself is uniquely American and it makes all of us Americans.

FILED UNDER: Borders and Immigration, Donald Trump, Fourteenth Amendment, Law and the Courts, Politicians, U.S. Constitution, US Politics,
Doug Mataconis
About Doug Mataconis
Doug holds a B.A. in Political Science from Rutgers University and J.D. from George Mason University School of Law. He joined the staff of OTB in May 2010. Before joining OTB, he wrote at Below The BeltwayThe Liberty Papers, and United Liberty Follow Doug on Twitter | Facebook

Comments

  1. MarkedMan says:

    Taking away birthright citizenship would affect more people than anyone imagines. Take me and my three siblings. I’m pretty sure that my parents were not yet citizens when my oldest sister was born. Maybe not even when I was born – it takes time to get your citizenship. But I’m almost positive they were by the time my brother was born. Yet we were all born and raised in the same house in Chicago. Would the Republicans send their Gestapo to arrest my 60 year old sister, who spent nearly 40 years teaching special ed kids in a public school? Would the Republicans send their jack booted thugs for me?

    The racist trash that makes up the Republican Party is all too typical of our history, but is absolutely opposed to the core decency that is at the heart of real American values.

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  2. Jake says:

    The 14th Amendment Does Not Mandate Birthright Citizenship

    https://www.nationalreview.com/2018/11/birthright-citizenship-14th-amendment-does-not-mandate/

    “The 14th Amendment did not extend citizenship to the newborn children of illegal aliens. Our law has never done this, though we have been operating for decades as if it had. That includes operating for decades under Congress’s Immigration and Nationality Act of 1952 and its progeny, through which the 14th Amendment was codified, presumably edified by Congress’s understanding of Wong Kim Ark. (See Section 1401(a) of the immigration laws.)”

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  3. grumpy realist says:

    If we don’t allow birthright citizenship, then how are we going to define nationality for the US? And who is going to make the decisions? I’m quite sure that a certain number of Americans would be very happy to force anyone looking even slightly Hispanic to continually be challenged on their citizenship over and over again. And let’s not get into what they would want to do to those of African descent….

    Birthright citizenship is at least a bright line.

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  4. Daryl and his brother Darryl says:

    @Jake:
    The 14th was specifically designed around slaves, and as a reaction against Dred Scott.
    So your point is that when slaves were brought to this nation in shackles, against their will, that wasn’t “illegal”?
    There are many things our brilliant founders could not have foreseen in their wildest imaginations. Including racists like you.
    That doesn’t make the moral imperative less valid.

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  5. Joe says:

    the three Constitutional Amendments — the 13th, 14th, and 15th Amendments — that fundamentally altered not only those restrictions on citizenship and equal rights but also the relationship between the states and the Federal Government.

    This is not your current topic, but I would like to see more discussion of this. I am mystified how most Constitutional scholars – whether real or arm chair – talk about the Founding Fathers’ view of state sovereignty without acknowledging that those amending the Constitution in the 1860s fundamental either changed that relationship or instituted a particular understanding of it.

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  6. mattbernius says:

    @Jake:

    “The 14th Amendment did not extend citizenship to the newborn children of illegal aliens. Our law has never done this, though we have been operating for decades as if it had.

    Historians of the 14th amendment, looking at primary documents and other related decisions, strongly disagree with this. In fact, the Supreme Court explicitly upheld this understanding in the case of Wong Kim Ark…

    See for example:

    Three decades later [1898 — half a century before the Act McCarthy references -MB], the government tried to meddle with the clause by denying citizenship to Wong Kim Ark, the child of Chinese immigrants who were themselves not eligible for citizenship. The Supreme Court reaffirmed that the clause meant what it said. No matter where their parents were born, no matter what their parents’ status, American-born children are Americans. And that’s how it should be.

    * https://www.theatlantic.com/ideas/archive/2018/10/birthright-citizenship-constitution/574381

    McCarthy is correcting in so much as the concept of an Illegal Immigrant is fairly modern. However, the application of the constitution shows that while that label is new, the applications of the 14th Amendment to them is well established:

    When the Fourteenth Amendment was ratified, the category of illegal or undocumented immigrants did not exist. The closest analogy to children born today to such immigrants were the American-born offspring of newcomers from China. At the time, their parents could not become citizens, but in 1898, following the plain language of the Fourteenth Amendment, the Supreme Court affirmed that a person of Chinese origin born in the United States was a citizen by birthright.

    /?fbclid=IwAR3oOH0MOhHpOOxoRV3Sy4BGHL1z89vsSqeIcUzHFqjMyI34rwNsm_JiiW8
    * https://www.nytimes.com/2018/10/31/opinion/donald-trumps-birthright-citizenship.html

    I look forward to your discussion of these facts.

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  7. mattbernius says:

    BTW, for those interested in the debate that actually happened on the floor of Congress during the drafting of the Amendment, I highly recommend the following Twitter thread with links back to the Congressional Globe, which reported on debates in congress at the time.

    https://twitter.com/liminalphase/status/1057331377908125704

    It contains key gems (that will be referenced throughout the conversation like the following:

    Senator Trumball: My own opinion is that all these persons born in the United States and under its authority, owing allegiance to the United States, are citizens without any act of Congress. They are native-born citizens.

    Note that the debate makes clear that “owing allegiance” here was a reference to Native Americans living on Tribal Land and the children of foreign diplomats.

    Likewise another great quote that followed up a discussion about the issue of racial implications of citizenship:

    Senator Johnson: The honorable member reads the Constitution as if it said that none but white men should become citizens of the United States; but it says no such thing, and never intended, in my judgment, to say any such thing.

    Take away, while the Amendment might have been addressing the immediate problem of freed slaves, its very clear that the drafting was an attempt to clarify the topic of citizenship in general.

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  8. MarkedMan says:

    @mattbernius:

    I look forward to your discussion of these facts.

    A Trumper “discussing facts”. Oh, you are a funny one…

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  9. OzarkHillbilly says:

    @Jake: Over 120 years of judicial precedent and practice says Andrew McCarthy is completely ignorant of the law and the Constitution. Why you would bother reading an idiot, much less cite him, is beyond me.

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  10. OzarkHillbilly says:

    All very well said Doug but I wanted to quote this part for special emphasis:

    Arguing against birthright citizenship then is effectively to argue against fundamental parts of what it means to be American and what has made our nation what it is over the past nearly two and a half centuries. The first is the idea that we are all equally American regardless of where we or our parents came from and regardless of how they got here.

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  11. Blue Galangal says:

    @OzarkHillbilly: It’s sad/funny how these racists cling to a dissent in Wong Kim Ark and present it as the majority opinion. There has been a birther on various websites’ comment threads as far back as 2009 (when I first noticed him) called “David” something, I believe, who has been tirelessly pushing this half-understanding for a decade now. I ran across this birther again in the past year or so, with new numbers behind the name, but the same (almost word for word) declaration that Wong Kim Ark explicitly denied birthright citizenship.

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  12. Andre Kenji de Sousa says:

    The contrasts greatly with nations such as those in Europe, Asia, and Africa where citizenship is effectively conveyed not by soil by but by blood.

    In Western Europe most countries basically have jus soli with restrictions, and these restrictions are basically meant to block “accidental citizenship”. Basically, the child has to live in the country to receive citizenship when he or she reaches 18. You can’t have French citizenship just because your mom was just a foreign tourist eating bagels in Marseille during her ninth month of pregnancy.

    In fact, in some European countries like Netherlands the so called dreamers would have automatic citizenship(If they had lived in the country since 4 years or younger).

    What US Conservatives want is to abolish “jus soli”, it would be farmore reaching than the jus soli with restrictions of Europe.

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  13. Mister Bluster says:

    @Forget it Jake, it’s Chinatown:..The 14th Amendment Does Not Mandate Birthright Citizenship

    Sit up straight at attention and listen to me Jake.
    I have Birthright Citizenship under the 14th Amendment. I can only assume that you do too.
    What’s to stop your Supreme Leader Kim Jong Trump from arbitrarily stripping Constitutional guarantees from us with the stroke of a pen for no reason at all?

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  14. grumpy realist says:

    @Jake: Prove to me that you are eligible for US citizenship, then. Maybe you should get kicked out as well for being “non-American”, hmm?

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  15. OzarkHillbilly says:

    @Mister Bluster: But that would never happen to Jake, only those people.

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  16. KM says:

    @Mister Bluster:
    My favorite game with these nuts is “prove you were born here”. The standard is what people used against the last President. Show me your birth certificate. See, most people assume they can do that easily – if they don’t have their birth certificate handy, they can always go get a copy right?

    *bzzt* Wrong! As the whole kerfuffle surrounding BCs showed a few years ago (thanks Obama!), you don’t get what you think you’re getting if you request a replacement BC. Sure you get an equivalent legal document but if the demand is “provide your original BC for citizenship purposes” a surprising number of Americans would lose their status on the spot. Offices burn down, paper gets destroyed by floods, things get misplaced. Should questions start getting asked and overt strict rules be applied, quite a few Trumpkins will find that they’d fall on the wrong side of “undocumented” without jus soli to cover their asses.

    Then you have people like me who through bureaucratic SNAFUs have unique circumstances and paperwork. Think of all the at home births, adoptions and other children who’s identities can be murky but we know were born here. Think of how easy it is to make a typo or mistake and that gets entered into the official record. I have *two* completely legal-with-the-raised-seal original BCs issued within days of each other because I was born during a snowstorm and it was filed twice. For my entire life, it’s never matter which one I used with any government agency; tbh, I’m not sure anybody’s ever really noticed despite the multiple background checks. However, someone with ill intent could claim that is “fraud” and try to start trouble. Should jus soli not be around as a failsafe, I might find myself having to explain why bad weather shouldn’t invalidate my legal status to a potential hostile audience.

    Anyone wanting jus soli to be gotten rid of wholesale has NO idea how many Americans are up shitcreek without a paddle including them. Nobody can prove their own birth location on their own – they must rely on others from back then and the veracity of paperwork. The 14th covers a lot of legal native-born x-generation Americans who just take for granted they can provide papers when requested. It’s a national CYA we can’t afford to lose.

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  17. Slugger says:

    I would bet that most kids born to noncitizens on American soil are born into families who make the USA their permanent home. Pregnancy tourism is probably not common. In any event what harm has come in the last 120 from this? I was watching the NBA the last time this came up. Domantas Sabonis does not appear to be a danger to America. Actually, what are people afraid of when they fear immigrants?
    BTW, the first Europeans in the Americas came from Spain. There may have been guys named Gonzales here before anyone named Smith. I bring this up because an acquaintance who winters in Arizona wondered when all those Mexicans got there and was puzzled when I told him 1520 AD.

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  18. MarkedMan says:

    @KM: I think my favorite demonstration that all birthers were morons was their absolute certainty that Obama’s BC couldn’t be real because it didn’t have those cute little baby footprints on it. They would whip that out like they had just unearthed the murder weapon in a made for TV mystery movie. Confusing a souvenir/cover-your-ass document given out by a hospital with, well, an actual birth certificate was made even more funny when they inevitably went on to gush rivers of RWNJ intricacies about the law and the methods of obtaining birth certificates, etc. After categorically proving they didn’t even know what a birth certificate was, they were just so adorable when hey doubled and tripled down on their stupidity.

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  19. Mikey says:

    @OzarkHillbilly:

    But that would never happen to Jake, only those people.

    My wife is a naturalized American citizen, so when the Trump administration started rooting around in naturalization applications looking for pretext to throw naturalized citizens out, I got a little bit concerned.

    But then I remembered, she’s a pure-blooded, rein Arisch German by birth, so we’ve nothing to worry about!

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  20. OzarkHillbilly says:

    @Mikey: My wife is a naturalized American citizen too. Hispanic. From Spain. So maybe she’s one of the good Hispanics?

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  21. Mikey says:

    @OzarkHillbilly:

    So maybe she’s one of the good Hispanics?

    Depends. Is she Catalonian or Andalusian?

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  22. Just nutha ignint cracker says:

    @KM: In Washington State, where I was born, even the original, dated signed, and stamped as having been filed on my actual birth date copy that I have is marked “Facsimile of Birth Certificate.” Apparently because the state didn’t make carbon copies in 1952 and there is only one actual “original” birth certificate which is held by the state.

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  23. OzarkHillbilly says:

    @Mikey: Majorcan.

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  24. barbintheboonies says:

    If a person marries another person when still legally married the second marriage is not legal. Why is it when an illegal person comes into our country, and has a child here that baby becomes a citizen. I feel birthright citizenship is foolish, and dangerous to us all. The cost of it is ridiculous, but for Democrats they don’t care as long as they can get votes. Look around people the homeless camps are growing daily.

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  25. KM says:

    @barbintheboonies:
    Because dual citizenship from birth is a thing whether you like it or not. It has been for a VERY long time around the world so exactly should that concept change just because your xenophobia is kicking in What’s dangerous is ignorant folks like yourself suddenly deciding *you* get to decide who should be a citizen instead of decades of legal jurisprudence. I love how idiots think going to jus sanguinis will solve this because it will still happen if say a Brit and American have a kid. The child’s nationality is determined by the country they are born in’s laws as well as their parents nation of origin.

    Furthermore, how exactly can you prove your parents were citizens, Barb? After all, your citizenship would derive from them so you have to be damn sure they’re American for you to be. Is it because they were born here, perhaps? How can you be sure *their* parents were legal citizens if you’re extending jus sanguinis to them as well? How far back does it have to go? Hell, without a blood test, you’re trusting that your parents are your real parents! Maybe it turns out your daddy or granddaddy was the milkman from Ukraine and you’re not a full citizen after all – and that’s a *real* possibility for plenty of Americans who just blindly assume they know their parentage and thus their citizenship. How many women over history have lied about the parentage of a child…. *every* family somewhere in their branches has someone who’s got a case of “mama’s baby, pappa’s maybe”. Too many folks wishing for jus soli to go away are in for a nasty shock the same way a lot of Germans found out they weren’t really “German” when Hilter started drawing up his rules.

    Personally, I feel a child of two nationalities should be allowed to choose their allegiance as they get older, not have it arbitrary decided for them at birth. It’s not their fault where they were born and who their parents are. Let them grow up with the option and make the choice as an informed adult. There’s no such thing as an anchor baby – only a citizen who’s parents you despise for their legal status. The CHILD has done nothing wrong, the CHILD is as American as you are by the Constitution and the CHILD could grow up to be conservative for all you know… that is, if you didn’t spend their whole life telling them they aren’t your equal and should be gotten rid of.

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  26. mattbernius says:

    @barbintheboonies:

    I feel birthright citizenship is foolish

    Huh… so this is about your feelz over the Constitution? So I guess if you’re consistent then you agree that since a lot of us feel that there are good reasons for gun control all the past interpretive frameworks for the 2nd Amendment should be overlooked?

    Man, I remember the halcyon days where Rush complained that the real problem with libs was that they were about feelz over facts.

    Again, there are at least 100 years of legal precedent (going back to at least Wong Kim Ark) that birthright citizenship is enshrined within the Consitution.

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  27. Just nutha ignint cracker says:

    @barbintheboonies: Um… because the two scenaria that you suggest aren’t comparable?

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  28. JohnMcC says:

    @Just nutha ignint cracker: But it felt like an intelligent comment! You’re just showing what a bigot you are for criticizing, meanie!

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  29. Mister Bluster says:

    @barbintheboonies:..I feel birthright citizenship is foolish, and dangerous to us all..

    Quit whining and stand up for what you believe!
    RENOUNCE YOUR BIRTHRIGHT CITIZENSHIP NOW!

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