On Birthright Citizenship

More evidence that the politics of the moment aren't just about illegal immigration.

Michael Anton. who is billed as “a former national security official in the Trump administration” has a column in WaPo:  Citizenship shouldn’t be a birthright in which he makes the following claim:

The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.

Really to call the statement “odd” is an understatement.  For despite the pretzel logic that is used in the column, birthright citizenship has been part of the constitution since the 14th Amendment was ratified in 1868 and was interpreted not long thereafter to mean exactly what its says, i.e., “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.”  Yes, I understand the primary purpose of the amendment was to automatically transform all former slaves automatically into citizens.  That fact does not change what the words say nor, and more importantly, it does not change the fact that the Supreme Court has interpreted it to mean, simply, birthright citizenship since not long after the Amendment was written.  Beyond that, birthright citizenship has its basis in the common law.  Further, given the very liberal pre-Civil War immigration laws in the US, it would have been the practice of the land.

Philosophically (and practically), by the way, birthright citizenship is not absurd at all, because it is what leads to assimilation.  In Europe, where most citizenship is conferred by blood and not via soil, whole populations of persons are born residents but not citizens.  This, more than anything else, is what contributes to their lack of integration in their respective societies.

Fundamentally, what is a person born into a country, raised in a country, and then grown to adulthood in a country?  Does it mater if that person’s parents are from that country or not?  Does it matter what color of skin they have?  Born in the US, learning English and American pop culture and values makes one an American.  To deny that is to deny reality of what create human bonds and identity.

The foundation of what we are we learn from childhood.  We do not know our parent’s past.  Our parents may pass down some traditions (food, holidays, etc.) but the reality is, we are profoundly shaped by where we grow up, and that isn’t a legal process.  So, philosophically, birthright citizen avoids creating displaced populations who are neither legally citizens nor are they from somewhere else.  If one is really concerned about terrorism, gangs, etc., then don’t seek to create a population that is separate, has no real home, and feels rejected by their land of birth.  That sounds oh so philosophically smart, yes?

If one doesn’t understand that, then no wonder so many in this administration don’t understand why a DACA fix is needed.

Fundamentally the column’s arguments are straight-up anti-immigrant (or, clearly anti-certain-kinds-of-immigrant):

Those framers understood, as did America’s founders, that birthright citizenship is inherently self-contradictory. A just government in the modern world rests on the social compact, a freely entered agreement among free citizens. That compact’s scope and authority extend only to those who have consented to its terms and whose membership has been consented to by all other citizen-members. A compact that anyone can join regardless of the wishes of its existing members is not a compact. As President Trump likes to say, “If we don’t have a border, we don’t have a country.”

This is just so much gobbledygook.  The US founders weren’t anti-immigrant.  Birthright citizenship is not “inherently self-contradictory” unless you think being American means being of a certain ethnicity.  This entire paragraph is an attempt to sound intellectual while saying “we should be keeping certain people out” and one can only assume that the certain people he wants to keep out of those who are of darker hue.  What else would be the goal?  If all humans are created equal, and thrive when given the chance to be free, then who cares who your ancestors were, come be an American.

Also:  if he really thinks governments must rest on a social compact, we should all not be allowed to be citizens unless at adulthood we agree to the compact.  The notion that the fundamental nature of the social compact is simply setting parameters about who joins is one lacking in much understanding of social contract theory.

Plus, since we have had birthright citizenship for roughly a century and a half, how does it even make any sense to assert that birthright citizenship is inherently self-destructive?  Have we not had birthright citizenship throughout the bulk of American growth, greatness, and wealth?  The actual evidence and historical record utterly undercut the claims of the column.

It also shows the reactionary nature of those aligned with Trump in this area.  These are not conservatives in the classical sense of the word who worry about unintended consequences or who respect the notion that one does not change what has demonstrably worked over time.

This is basically white nationalist nonsense dressed up as lousy philosophy.

FILED UNDER: Borders and Immigration, US Politics
Steven L. Taylor
About Steven L. Taylor
Steven L. Taylor is Professor of Political Science and Dean of the College of Arts and Sciences at Troy University. His main areas of expertise include parties, elections, and the institutional design of democracies. His most recent book is the co-authored A Different Democracy: American Government in a 31-Country Perspective. He earned his Ph.D. from the University of Texas and his BA from the University of California, Irvine. He has been blogging since 2003 (originally at the now defunct Poliblog). Follow Steven on Twitter

Comments

  1. smintheus says:

    Birthright citizenship has been American law since 1776 – see Lynch v Clarke (1844). And it was settled law too, long before the Civil War. All the Civil Rights Act of 1866 and the 14th Amendment did was to clarify that ius soli now also governed the freed slaves…and made the already well established tradition of birthright citizenship a constitutional principle.

    That’s the biggest lie in Anton’s op-ed; like assorted fellow immigrant bashers, Anton pretends that ius soli depends entirely upon the 14th Amendment, enacted almost a century after birthright citizenship had become the operative principle in American law.

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  2. Stormy Dragon says:

    More to the point, if being born here doesn’t make you citizen, can you actually prove you are a citizen? How many people can legally prove that their great-great-grandfather was actually naturalized?

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  3. Just nutha ignint cracker says:

    @Stormy Dragon: They’re not talking about your or their own grandfather. This is strictly about Mr. Lopez’s, Ms. Ashanti’s, Mr. Jeong’s grandfathers. And if you ask them your question, I’m positive they will affirm that for you.

    Believing that “some conservatives are good moral non-bigoted people” is simply not credible any more. People who want to consider themselves as having those qualities need to decide what they value more their country or their wallet and “the wall.”

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  4. Daniel Hill says:

    whose membership has been consented to by all other citizen-members

    Sounds like Mr Anton is proposing something like those Swiss cantons where the existing residents get to vote on your citizenship application. Okey dokey. Let us all vote against Mr. Anton’s application and watch him rush to claim the right to citizenship by birth!

  5. tm01 says:

    born residents but not citizens. This, more than anything else, is what contributes to their lack of integration in their respective societies.

    Are we now admitting that Europe has an immigration problem with millions of people going there who have zero interest in ever becoming European? Could that be what people mean when they say European countries are losing their culture?

    one can only assume that the certain people he wants to keep out of those who are of darker hue.

    Doesn’t assuming make you an ass?
    Are Polish people here illegally darker than “us?” Or are you just throwing out the race card again because it’s easy?

    But, I do suppose that it’s a good thing Trump is nominating good conservative, originalist SCOTUS justices. All of the actual evidence presented here makes it very unlikely they would vote to overturn or limit birthright citizenship. That’s something an activist, believing in a Living Constitution, would do.

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  6. KM says:

    @Stormy Dragon:

    How many people can legally prove that their great-great-grandfather was actually naturalized?

    Additional question: what happens when the veracity of that documentation is in doubt? Remember, back then the vast majority of this was self-report and we then take it as gospel that it was “written down”. How many families started off on Ellis Island with a lie – a name change, an omission or flat-out rewrite and how do you prove it? False identities were easy to take and hold then, changing to a more favorable heritage or parentage to pass muster almost a necessity for some. Lies get recorded as easily as truth and who’s to say what’s what 100 years later?

    As a DAR, I have a genealogy book that goes back to the 1600’s with as much supporting documentation as the proceeding generations could gather. I’m this generation’s historian and am finding…. interesting discrepancies in the “official” log. I’ve mentioned this on another thread but I discovered my maternal grandfather had several sisters who died very young. I only know this due to the Census as there’s no family records or stories and they are not listed anywhere but dusty old federal records. Who’s right? God forbid, did this happen a lot between Censuses and those souls were lost to the pages of history?

    If we start demanding “proof”, 99% of Americans are *screwed*. You have only family stories (for all you know, complete lies or wishful thinking) and possibly documentation (self-reporting bias, clerical errors, etc) but no solid evidence. Those lucky enough to be descended from notable people we can DNA test are really the only ones – the rest of us must trust our ancestors didn’t fudge anything ever.

  7. Kathy says:

    This column Dr. Taylor references should be preserved as a near-perfect exemplar of specious reasoning.

  8. OzarkHillbilly says:

    @Just nutha ignint cracker:

    Believing that “some conservatives are good moral non-bigoted people” is simply not credible any more.

    Sure it is, one just needs to acknowledge that these conservatives are no longer members of the now reactionary Republican Party.

  9. MarkedMan says:

    @KM:

    If we start demanding “proof”, 99% of Americans are *screwed*. You have only family stories (for all you know, complete lies or wishful thinking) and possibly documentation (self-reporting bias, clerical errors, etc) but no solid evidence.

    I like this. My parents are both naturalized citizens (during the 1950’s), so I have a lot of proof that I was born on US soil to valid US citizens. I bet we could use this to take away the voting rights of all those Trump staters who like to brag, with no actual evidence, that their lineage goes back to the revolution. Maybe they are right, and maybe their great-greats snuck over here illegally. It would only be fair to give them a chance to prove they are “real” citizens and not birth-right ones. But of course we should take away their voting rights and social security, medicare, tax credits, etc, which we only reserve for real Americans, until such a time as they can come up with concrete proof. If after, say, twelve months they can’t provide hard evidence, then we round them up, cage their children, a and put them on the next plane to a foreign country. Which country? Well, the one with the cheapest ticket…

  10. Slugger says:

    I agree that birthright citizenship has many problems. We should get rid of it and replace it with a requirement for minimum standards. We have too many dumbsh*ts in this country; we should require all to be tested. If you can’t pass the test, then you’re out even if your ancestors were here for six generations. Also, we need affinity testing. It is silly to grant citizenship to people who do not support the country; if you own a Confederate flag, out you go!
    I did notice that the influx of post-Vietnam War refugees in my city led to many high school valedictorians being named “Nguygen.” We can’t have our country be dragged down by the Smiths and Johnsons at the bottom of their class.

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  11. de stijl says:

    Anton:

    A just government in the modern world rests on the social compact, a freely entered agreement among free citizens. That compact’s scope and authority extend only to those who have consented to its terms and whose membership has been consented to by all other citizen-members.

    This sound a lot like “Service Guarantees Citizenship” from the criminally underrated Starship Troopers.

    Then layered with a Fraternity / Sorority membership inclusion policy. You rush, if they like you they vote on you during which any member can blackball you for any reason, and if no one blackballs you are invited to pledge.

  12. Andre Kenji de Sousa says:

    In Europe, where most citizenship is conferred by blood and not via soil, whole populations of persons are born residents but not citizens. This, more than anything else, is what contributes to their lack of integration in their respective societies.

    Portugal, Germany, France, Ireland and Britain have jus soli with restrictions. Other countries like Spain or Italy also have what’s in practice are jus soli provisions in their nationality laws. Completely abolishing jus soli would be impractical and completely idiotic. In some sense you’d need something like jus soli with several layers of bureaucracy because in part that’s what the Europeans have.

  13. Michael Reynolds says:

    I read the piece yesterday in WaPo and had to keep going back through it to see whether there was some shred of logic. Nope. It was not just offensively racist, but disconnected, random, circular and absurd.

    Who believes arguments like this? People who’ve never learned to think. People accustomed to accepting as true anything that flatters their existing prejudices. By large margins: evangelical Christians who have been groomed by their pompadoured preachers to swallow nonsense. We have had a voter failure, a failure of the citizenry, largely in the Boomer generation, and concentrated in the evangelical Christian population.

    Evangelical Christians are not Catholics or Episcopalians or Methodists – all denominations that at least put up a front of rationality. These are people who believe that God chooses to communicate with us through the medium of hysterical ninnies yelling, ‘Gaba gaba gaba,’ in church and pretending it’s ancient Babylonian. Do they wonder why God doesn’t just send texts in plain English as opposed to gibberish spouted by retired truck drivers? Nope. That would require doubt and thought and reason.

    So when asking how anyone could believe the transparent crapola being peddled by #TraitorTrump, look first not to the Nazi wannabes, but to the low end of Christianity. They’ve been carefully groomed for credulity.

  14. Jay L Gischer says:

    I would agree with Steven that this isn’t conservatism. It’s full on white supremacy. It’s “blood and soil” nationalism.

    In our nation’s history, it has found a home in both parties, at times. If the Republicans kick it out this time, it will be gone for a while, but probably raise up its head in another 50 years or so. And the next time it might be among Dems or it might be among Repubs.

    I think we are better off politically focusing on it as itself, as “white supremacy”, not as “conservatism” or “evangelicals”, or whatever else. This allow us to drive a wedge between people of those other persuasions who aren’t friendly with the precepts of white supremacy.

    Drive them apart, not together.

  15. Monala says:

    @Jay L Gischer: I wish I could be as confident as you that splitting them off would work. I’m afraid that many conservatives or evangelicals would accuse people of labeling them all with the white supremacist brush, no matter what pains were taken to distinguish them. Recall the response to Hillary Clinton’s “half of Trump’s supporters are deplorable” remarks.

  16. Just nutha ignint cracker says:

    @OzarkHillbilly: edited to remove. I misread your comment and see we have no friction. My apologies.

  17. Just nutha ignint cracker says:

    @MarkedMan: Residents who paid into these systems need to be either reimbursed or receive the benefits they have paid into the system to receive. “The law disdains forfeitures.” Beyond that point, got no dog in this fight. Laissez les bons temps rouller!

  18. Sleeping Dog says:

    Might I make a small suggestion, if your ancestors were here by 1880 you are a US citizen by birth. Why 1880? Well

    Anton’s blather is one of the most asinine things I’ve ever read. Kept checking to see if I was at the Onion website rather than the Posts’.

  19. Just nutha ignint cracker says:

    @Michael Reynolds: Not fair! A lot of evangelicals that I know have been taught this nonsense by pastors who have totally normal haircuts. You shouldn’t be making fun of people whose hairstyles are trapped in the late 50s. They don’t know any better.
    Our President is one of these people, and you know how bad it makes him feel when people make fun of him. Just stop it! Fake Take the high road on this one.

  20. de stijl says:

    Per Wiki, Anton is of Lebanese descent. If his grand rewriting of the American immigration policy works, he himself will be likely excluded, perhaps expelled, condemned to live his life as stranger in a strange, but ancestral land.

  21. @de stijl: There is a lot of that going on. It also shows how “white” gets redefined over time.

  22. de stijl says:

    Anton is also wont to write under lah-di-dah pseudonyms like Nicholas Antongiavanni and Publius Decius Mus.

    Regular Victor Davis Hanson is shit faux classicism. I have zero desire to read a VDH fanboi knock-off fanfic.

  23. Jay L Gischer says:

    I think Hillary’s “deplorable” remark was a rhetorical error, because A) it wasn’t specific enough, and B) it focused on identity, not behavior.

    Also, “deplorable” is, frankly, weak language. Saying “half his followers” allows people to choose which half, and assume that they are being called deplorable. I think it’s never a good idea to target identity instead of behavior.

    Here’s some examples of things I might have said instead.

    I have a very big problem with describing Mexicans as “rapists and murderers”. We can defend our borders without demeaning our friends, our neighbors, our military servicemen, and our judges.

    When you say that people from “shithole countries” “infest” the United States, you are engaging in language that has long been associated with white supremacy. You are ignoring the progress that these countries have made, and the value that immigrants from them have brought to America since its founding. We built a mighty nation with the “wretched refuse of a teeming shore”, and we can continue to do that, even while keeping a close eye on our enemies. For this reason, this kind of rhetoric hurts America, and makes it harder for us to reach an agreement that will keep America secure.