Does it make sense to automatically grant citizenship to the children of migrants? Credit: Getty
President Trump’s second term thrusts the question of birthright citizenship to the forefront of American politics: should the United States automatically grant citizenship to any child who happens to be born on US soil? Neither the Declaration of Independence nor the Constitution requires doing such a thing. Yet defenders of birthright shut down any debate by framing opposition as cruel and racist — and obviously wrong as a legal matter.
But there is a strong constitutional and moral case for limiting birthright citizenship. It’s the argument that led the Trump administration to issue an executive order that defines a new status quo: going forward, children of illegal aliens won’t receive recognition of their citizenship by the US Department of State or any other executive agency.
Start with the Constitution. The question of birthright citizenship goes back to the 14th Amendment, one of the three ratified in the immediate wake of the Civil War. The relevant portion reads: “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.” The phrase at issue is “and subject to the jurisdiction thereof” (known as the jurisdiction clause). Proponents of birthright maintain that the phrase merely means subject to the laws and courts of the United States.
Yet the debates over the 1866 Civil Rights Act, the legislation that led to the 14th Amendment, as well as the principles of the American founding, suggest a different interpretation.
The 1866 act was meant to secure the full benefits of citizenship for recently freed slaves and their descendants — and all black citizens, for that matter. The law’s proponents were determined to convert it from legislation to constitutional text, thus insulating its protections from change by a future Congress. Hence, the 14th Amendment. This means that the legislative history of the 1866 act can help illuminate what the 14th Amendment was supposed to be all about.
The 1866 legislation’s citizenship clause read: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” A few months later, when the 14th Amendment was debated, the floor manager, Sen. Jacob Howard, described it as “simply declaratory of what I regard as the law of the land already”, namely, that “every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”
By the “law of the land already”, Howard meant the recently passed 1866 Civil Rights Act. The then-chairman of the Senate Judiciary Committee, Lyman Trumbull, addressing an objection over the absence of the Civil Rights Act’s phrase “Indians not taxed” from the 14th Amendment, stated that it was obvious that Indians were not “subject to the jurisdiction” of the United States “in the sense of owing allegiance solely to the United States”.
In such language from some of the 14th Amendment’s chief proponents, we can discern the outlines of an argument that the jurisdiction clause meant more than merely being subject to the law and courts on US soil. It had to do with a fundamental tenet of citizenship: loyalty or allegiance.
So how did we end up with the children of even illegal aliens receiving automatic citizenship? The US Supreme Court first addressed the meaning of the citizenship clause of the 14th Amendment in an 1898 case. It concerned the fate of Wong Kim Ark, a child of Chinese nationals who were permanent US residents. In a 6-2 decision drafted by Justice Horace Gray, the high court held that the common law was the proper interpretive guide to the US Constitution’s text. Since the common law mandated birthright citizenship — jus soli as opposed jus sanguine, “right of soil” instead of “right of blood” — the child was a citizen under the 14th Amendment.
To this day, the case remains the controlling precedent for the maximalist position on birthright citizenship, cited by sympathetic judges and law professors on both sides of the aisle. Yet the dissenting opinion, written by Chief Justice Melville Fuller, offers an interpretation of the 14th Amendment’s citizenship clause that is more consonant with American principles of just government than Justice Gray’s opinion.
Fuller argued that the common law couldn’t be the controlling authority, because in separating from the British Crown in 1776, the American colonists had elevated the principles of the Declaration of Independence over the common law. The common law of England contemplated subjects owing perpetual allegiance, rather than citizens of a government based on consent.
Fuller was right. The common law didn’t come up at all during the debate over the 14th Amendment. There were no references to Sir Edward Coke or to Blackstone, the eminent English authorities on common law, and the lawmakers were much more comfortable speaking of the interaction between the principles of America and her institutions than they were citing English precedents on jus soli.
They believed that the principles of the Declaration would control — and, where necessary, overrule — the common law of England. If human equality is a fact of nature, then nobody may rule another without their consent. All ought to enjoy their liberties and the pursuit of happiness alike. The existence of slavery, the ensuing crisis brought on by the conflicts between these principles and American practice, and the subsequent Civil War are the historical context for the 13th, 14th, and 15th Amendments. American citizenship, defined constitutionally for the first time in the 1860s, was never based in blood. But crucially, it was never based in soil, either.
American citizenship was based on consent. Wong Kim Ark, then, should be overturned, and we should have a robust national debate about citizenship, immigration, and national allegiance. Congress is well within its enforcement powers under section 5 of the 14th Amendment to restrict birthright citizenship much more than it does currently.
Let’s start with two issues on which we might reach a broad national consensus: illegal immigration and birth tourism. It seems to go against common sense to allow a million or two immigrants to cross our southern border illegally and then to confer citizenship upon the children they may have here.
Children of foreign soldiers born on US soil have always been excluded from birthright citizenship, in the same way as the children of ambassadors and diplomats. It’s controversial to call the flood of economic migrants of recent years a slow-moving invasion — but what of the subset of that group that constitute criminals, foreign spies, and terrorists? Does it redound to American national interest or civic health to confer citizenship on any children they may produce on US soil?
Is it prudent, let alone just, to allow wealthy foreigners from China or Russia to purchase birth-tourism packages costing as much as $100,000 and including a final-trimester hospital stay in Florida or California as well as a fresh US passport for the new babies? Should we be in the business of exporting tens of thousands of newly minted Americans every year, with all the attendant privileges and benefits, to the homelands of our foreign adversaries?
To be sure, the meaning of the 14th Amendment’s citizenship clause is contested. The prospects for overturning Wong Kim Ark any time soon are remote. But even under the Wong Kim Ark precedent, controlling emphasis was placed on the importance of Ark’s parents being “permanently domiciled” in the United States. Let’s update and apply that precedent to a world transformed by transportation technology in the ensuing 127 years. If you are not a lawful permanent resident, any children you may have in the United States are permanent residents with you, not automatic citizens.
The next step after Trump’s executive order will be to get the American people more involved, which means Congress should debate, openly and with great fanfare, the meaning of the 14th Amendment on the relationship between birth, citizenship, and government by consent. None of these issues is as settled or obvious as defenders of birthright citizenship insist.
Ryan P. Williams is the president of the Claremont Institute and publisher of the Claremont Review of Books.
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SubscribeAnd thus we see the essential issue finally brought to light. The question is not and is hardly about immigration it is and always had been about border security. The problem is that the borders must be secured and prevent the illegal aliens from arriving in the first place. Even if it involves deploying the US Military to patrol and secure the border.
That beinh said if you were born on American soil you are an American, that was and always has been a central principle of American citizenship being “give me your tired, your poor, your huddled masses yearning to breathe free”. If we start trying to decide who and who doesn’t count as a “real American” we will destroy our country and destroy our people “E pluribus unum”. What it means to be American is to tolerate those crazy other Americans who hate the fact they are American, it means standing up and fighting for the rights of others to be stupid, fat and lazy, to burn the flag. Not because we agree with it but because we understand that Liberty is not liberty if it only extends to those with whom you agree.
So secure the border, deploy armed forces, use lethal military force if needed to keep out those who seek to undermine our nation, but to those who are born on this soil, they become part of the tradition that was paid for in blood, they have claim to Old Glory, for that was what always was and has made America, America. You could live your whole life among the Parsians and still not be considered French, you could live forever in Saxony and still not fully come to love the order of the Germans, but America was different, the promise of America was simply that if you would be willing to come, if you loved liberty, then American citizenship was yours. Almost every one of my grandfather’s has fought for that dream, my ancestors were fundamental in the founding of this nation, and although we don’t always live up to it, and we have our problems this is still America, and the promise of America is and always has been a promise of a brighter tomorrow, we are a city on a hill and although it would be best if others chose to emulate us, I will at least accept those born in thos land are inheritors of the birthright of Lexington and Concord, possors of the birthright of Gettysburg, the children of the blood spilled on Normandy and in Belleu woods. For that is America, that is the promise of patriot dreams, and the hope of all who hope for a better world.
Less words, more content, friend …
Then here’s the argument in short. If we start to divide who is a “real American” and start putting qualifiers it will drive us to division that will tear us apart. Have we got some unfortunate conditions right now because of neglecting the security of our border? Yes. Will the horrors visited upon us by allowing legislative fiat to determine who is and is not a citizen, and the ensuing division and sectarianism, be far more devastating? Yes.
Er, it’s the lack of qualifiers that is already tearing you apart.
The Birthright Clause in the 14th amendment was never intended to accommodate birth tourism. The fact that an immigrant family can arrive simply to give birth and obtain citizenship for the child is gaming the system. It’s called an anchor for a reason. The situation we’re looking at today was never contemplated by the 14th amendment writers.
There’s also the issue of the welfare state. The phrase “give me your tired, your poor huddled masses” assumed immigrants would be responsible for establishing their lives. Today, they are able to access many forms public assistance. While this makes sense to provide services to destitute migrants, it’s also a magnet for more migration.
I’ll give you that it’s not a black and white issue. I share some of your good faith concerns but conditions have changed in ways that can’t be ignored. A Constitutional Amendment clarifying the establishment of Citizenship would be preferable to an Executive Order that forces a Supreme Court ruling. More important though is the debate itself.
Trump and his enablers are not looking for a debate. They have taken a modest (not tiny) popular vote win for a roaring mandate, or even a preemptive endorsement. A sweeping executive action of this kind is not an attempt to start any debate. It’s a provocation. One of many, with more on the horizon.
The 14th Amendment and the 19th-century precedents that established its scope can be altered or repealed—by approval of at least three-fourths (34) of the 50 states. Or the Republicans can use their current White House-House-Senate rubber stamp to try and make the bar a simple majority (26), which would also likely require a new amendment. Much more than a presidential fiat, which I don’t think you’d accept from a president you voted against, or for an action you don’t endorse, not for something of this magnitude. Ryan Williams uses the flimsy standard of “there is some debate” to confer false authority, undemonstrated substance.
I don’t think even this Supreme Court will allow such a selective use of the Constitution. Nor should they. We’ll see.
I tend to agree that the Supreme Court won’t allow it to stand because 3 of the 6 “conservatives” on the Court are pragmatists not idealists that don’t like to disturb precedent unless the intent of a law is crystal clear.
The “mandate argument” is a somewhat fallacious premise because nobody abides by it. In a representative democratic system, the parties are time-barred. Progressive Parties seek to rapidly transform society knowing some things will be rolled back. Traditionalists try to roll back excesses knowing there are Constitutional limits to the process.
If we’re simply looking at whether an act is reasonable we have to set some parameters on what ideal equilibrium looks like and how far we are from it. In other words, we’re all looking at balance.
From my perspective we’re radically out of balance on Immigration and the system has been gamed excessively creating a drain on both social cohesion and our ability to budget. I don’t see much gap between Trump’s position on Immigration and 90s era Democrats (which makes sense because that’s what Trump is). So the question for you would be whether the Overton Window or “Immigration Paradigm” of the 21st century Democrat Party is aligned with Common Sense?
Your first two paragraphs make sense to me.
Except I do think we’re about to see how much a leveraged moment of political opportunity can disrupt basic institutions. I think scrapping DEI in its current form makes sense, but it comes alongside an attempt to replace all federal employees with loyalists, or at least yes-men and women (their loyalty could disappear if the political winds shift).
I don’t see a strong parallel between Trump and 90s Democrats, even though he was still a Democrat in the 90s. (Though in 1989 he called for the swift execution of the Central Park Five, who were later exonerated by DNA evidence. Trump hasn’t apologized for that). Staying with 90s references, he’s more like Pat Buchanan in his nationalism and foreign policy approach and surrounded by several who are quite close to D. Duke, with cleaned up talking points. I believe his cult-of-personality has no precedent in a U.S. president.
I don’t support the way the border was handled by Biden and whoever else was really running things; it was an economic, social, and political disaster to let in so many so fast. For the umpteenth time, I don’t think reverse extremism is a good corrective response. In this case it won’t be cheap either, and if it’s taken too far we’ll find out how much our essential services and least desirable jobs are dependent on south-of-the-border labor. In Nebraska, they are as dependent on mostly-Mexican workers as anyone but voted overwhelmingly for Trump. Most Nebraskans don’t think he’ll try or at least be able to follow through on his mass deportation promises. Maybe so. Again, we’ll see.
I disagree with your claim that we are “all looking at balance”. I believe you are, but I reject the idea that turning the wheel as hard as you can to the right is the only way or even a good way to steady the ship. I think I’m pretty consistent in opposing radical upheaval and extremism from either sociopolitical direction, except as a last resort. Admittedly: We’re unlikely to have to the same lists of what is radical or extreme). I think the Move Fast and Break Things anti-preservation momentum of MAGA 2.0 is far from warranted or propitious.
Things are in a rare state of suspense and uncertainly. Some find it exciting. I don’t trust Trump and his opportunistic hangers on like Miller, Musk, and Gabbard enough to enjoy this. I plan to keep calm, carry on, and pay attention. I’m not gonna lose my composure as easily this time. I hope those inclined to give Trump the benefit of the doubt at every turn—I wouldn’t say you’re quite at that level, not yet—will also pay attention to what he actually does, and who it benefits.
You covered alot of ground so I’m just going to focus on two of your main points: Loyalism and Extremism and they do overlap.
The so-called “Deep State” is for the most part just a banal bureacracy of unremovable government employees that’s been effectively functioning as the true center of power for sometime now. I have friends in the bureacracy so in no way do I think they’re all bad or even most of them. These are primarily employees of the Executive Branch. The idea that many felt licensed to resist and obstruct the Executive during Trump’s first term is a problem in a system that calls itself Democratic. So as far as the “Loyalist” argument goes, I don’t find it compelling.
If the Executive (elected by the people) presents a legal order, lower rank direct employees should comply or find other work. I think we’re doing something that assumes “Loyalist” infers they’ll be expected to break laws on Trump’s behalf. I just don’t see that being the case. If it becomes the case, I’ll join you in condemnation.
The second part is Extremism and the Overton Window. I think you have to process just how much further left wing the country became from 2008-2023. The Left attained almost complete cultural hegemony. With that came the ability to use mass lawfare, target political opponents, collective shaming and make ordinary people scared to speak (pre-censorship).
In the past, you’ve pointed out numerous people on the Right who you feel are “Extremists.” You get no argument from me on the actual white supremacists (who have extremely limited reach). Alex Jones is out there but when I look at the things mainstream Democrats say, they sound to me like Alex Jones-esque conspiracy theories. I can show you 15-20 statements from “establishment type personas” in the past week that are tin-foil hat specials. Yet these people can hold primetime slots in the cultural scene whereas those on the Right have been marginalized, bankrupted or thrown in jail. Its been total alienation of half the country.
I do not wish for retribution against them and I don’t think retribution is necessary because success is the ultimate retribution. But make no mistake, I think you’re severely, severely underestimating how extraordinarily unhinged the Left and Left Establishment has acted in the past few years. Now that their moral authority is exhausted the point seems moot but they can’t be allowed to repeat the last 7-8 years ever again.
i consider the aggressive purging of the federal government to be a real threat. I don’t think violence-ready hardcore nationalists, up to and including blatant white supremacists, have a “very limited” reach. As a group, I find the present day Republicans to be well to the right of Reagan or either Bush overall, especially in their “enemy within” talk. Nearly all of them caved to Trump’s sweeping J6 pardons—including JD Vance and others who were outspoken against pardoning the most violent, until they shut their mouths— and whether there will be any meaningful internal resistance to Trump’s already intensely ambitious agenda is very much an open question.
I think you severely underestimate both the numbers and scale of the threat from the extreme right, while overstating the (indeed real) severity of the leftward threat. You’re smart and have a strong innate sense of fairness, but you seem to be ingesting a lot of heated, polemical content these days. I hope you’ll take it with a few grains of salt. I hope we all will.
The Biden administration engaged in the most aggressive purge of federal employees since McCarthy. He immediately implemented DEI throughout the federal government. DEI is not as many people believe a system of race/gender essentialism. It is an ideological purge system. It filters out people with “incorrect views” through struggle sessions. Likewise, Vaccine mandates were but one tool along with DEI to purge our military of “toxic masculinity.” The administration knew good and well it was using a stochastic ideological technique to filter out people that leaned Conservative. It wasn’t all Conservatives but it was overwhelming. There’s a reason our military recruiting is in the dumps.
Would you just prefer the Government use stochastic esoteric methods vs just clearly stating what they’re doing? Because that’s the primary reason people like Trump. He doesn’t hide behind banality and symbolism. He says what he thinks so you know where he stands.
The Democrat Party being the party of Government likes to claim what they’re doing is ideologically neutral when as I’ve laid out they’re absolutely filtering out people through an ideological lens. If we have a real Democracy the individual/party that wins should get to decide the direction of the government.
Bush was further to the right of Trump in just about every metric but for immigration. Trump is far more liberal economically and socially than your typical Republican voter.
Imposition of lip service to ideology ain’t great but it’s not not a purge. The incoming DEI officers were a “surge” not a purge. What “struggle sessions”? Are you referring to what happened in parts of the corporate world with DiAngelo and Kendi etc.?
Is MAGA free of ideology? How about Project 2025, which Trump strategically disavowed? He only says what he really thinks about certain things. He may very well believe, for example, that he has been spared by God to lead our nation to unparalleled greatness. But he is absolutely lying when he says he wants to be a president of unity and peace. Unless that can somehow be accomplished while staying vengeful, petty, and fixated on himself. I agree that overall he reveals his true colors—in all their ugliness.
You’ve laid out a series of often exaggerated claims. You pretend they’ve become established truth through the sheer force and purity of your argumentation? C’mon man.
A direct link between vaccine mandates and concerns about “toxic masculinity”? I think that’s absurd. They were way more concerned about the real risk of fatal transmission (in close quarters) however flawed the approach. Some of your claims reveal an hysteria about the supposed level of insane wickedness on the big bad left.
Trump is to the right of any recent president on immigration, citizenship, and exceptionalism in word and deed. That’s to the extreme right, beyond conservatism, reactionary. A Pat Buchanan-mold demagogue who, unlike Buchanan, doesn’t read, and is susceptible to the murmurings of charismatic true believers that impress him, such as Steve Bannon and Stephen Miller.
He’s essentially withdrawn from much real connection with the international community, for instance on climate and health. He could have tried to shape those flawed agreements to better fit our interests and goals, but instead kicked over the gameboard and went home.
From my perspective, it’s harder to discuss these things with you than it was a year ago. I think I’ve moved a bit to the right overall—largely in response to the left-excess we both hate, though at different levels of sweepingness or intensity—while you seem to have pivoted hard right. You sound increasingly like a hardcore partisan more concerned with having your side win than allowing for the complex truth that neither side is anywhere close to all wrong or all right. I don’t expect you to agree with my characterization but I hope you’ll consider my reason for thinking that, as I try to consider things you send my way, though sometimes I can’t do so very well in the moment, due to things like ego, emotion, or sharp disagreement.
Neither side of the age-old left-right divide can win a conclusive victory. Nor should it. And victories that spread ugliness and division come at a huge, even bloody cost. Of course that goes for both sides of the Us-Them divide.
I think you were pretty unfair on this one. I think you exude far more vitriol than I do towards individuals. For someone that claims to be somewhere in the middle, all of your animosity is targeted at individuals on the Right whereas I specifically try to avoid naming names unless its absolutely necessary.
You talk as though Elon Musk is the right wing equivalent of AOC. This is why I think it’s clear you’re being unobjective and expressing partisan bias. There are now about 70-80 Democrats to the Left of AOC who is open about being a Democratic Socialist. Fifteen years ago, nobody would dare admit to being a socialist but now it’s completely mainstream. How is that not a massive shift in the Overton Window?
I believe you are a truthseeker and a reasonable person. I understand your beef with somebody like Bannon. What I don’t understand is how you can’t see the left-wing equivalent of Steve Bannon can host mainstream TV shows spouting propaganda on supposedly neutral networks. It seems only the Right can engage in “dangerous rhetoric” or “conspiracy theories.”
My goal is not to “win” for my side, its to play some small role in shifting the Overton Window back to a somewhat merit-based economy and where the federal government has a much smaller role in culture shaping. I am against Socialism. That didn’t used to be a controversial “Right-Wing” position. If the Left
wants to grab that mantle of free enterprise and secure borders than I will gladly jump
on board.
Ah. So your version of moderation involves keeping things as general and abstract as you can, while locating nearly all problems on the Left, specifically with Democrats. The equivalent of Steve Bannon was not inside of Biden’s cabinet and White House. Several such people are right next to Trump, whispering in his ear. Media personalities, however popular, present no equivalent. And I don’t think you can claim onesidedness among rabble rousing extremists when you place Rachel Maddow or Jon Stewart or whomever against Tucker Carlson and Laura Ingraham and the like.
I absolutely call out left insanity by name, but on this website that often becomes little more than cheap piling on or playing to the crowd. You’re right that I express personal animosity in a selective way, and too often overall. I am passionate, opinionated, and reactive. My efforts to control that have been very unevenly successful.
I also make an effort to insert my actual experience as an individual, 53 year old, white Canadian-born dual citizen straight guy San Jose resident whose actual driver’s license says AJ Mac——-
You remain almost completely screened by your screen name, uncertain age, and location in “the South”. That’s certainly your American right, but as with your preference for abstract nouns and generalities, I don’t think it makes for a richer discussion.
I’m a bit surprised that you won’t acknowledge a rightward shift in your perspective. The U.S. is in no realistic imminent danger of large scale socialism. But a tech industrial plutocracy is upon us and threatening to grow, with wealth and political influence ever more concentrated. All the tech titans we need not name posed behind Trump on Inauguration Day. And we are pretty far into cowboy capitalism, with looser rules for the wealthiest individuals and biggest companies. They control information, purchase influence, and swallow the natural world like it’s their own. I thought you were fiercely against that. Are you pretty much fine with it as long as mega-wealthy individuals and huge corporations bend rightward on immigration and economics? Time for another top tier tax cut?
Now I’m not a fan of her at all, but if you want to show me the ten worst things AOC had said, even going back to her first emergence on the scene, I feel sure that I could find ten things Elon Musk tweeted or stated recently that equal or outdo her for extremism. And many more that have no factual basis and little connection to reality at all from Musk. After the example of President “They’re eating the cats” himself. Right now it would be hard to claim that he doesn’t have more political and cultural sway than any one Representative, without anyone voting on it.
I respect you and from what I can detect about you as a person I would like you. I just don’t think we can have much of a worthwhile exchange in this moment*. I may check back later in Trump’s presidency. Thanks for the civil and substantive engagement. Take the last word here if you like. -AJ
*It occurs to me that’s mostly on me. I tend to expect too much from online threads and this level of (partly unexpected) disagreement is not fun or beneficial for me, at least not now. I should avoid these kinds of articles, and their mostly predictable comment boards. Best of luck to you as an individual, T Bone.
I am a reactive person as well that has trouble with controlling emotion, so I get that. If there was a direct message feature, I would give you my details. The sole reason I stay vague is because of my wife and toddler. Though we’re mostly out of the cancel culture/censorship environment, I’d prefer not make it easy for people to attack my family because of something I said.
I’m really not a hyperpolitical person but I did immerse myself in 5 straight years of reading every article on Realclearpolitics daily so…maybe I can no longer make that claim. I love History and became obsessed with studying Soviet and Chinese Communism in college. Then after that, I learned about the French Revolution, 1848 uprisings, 1871 Paris Commune, Russian Revolution, US Progressive Movement, National Socialism and F+scism and then all the movements in third world nations specifically South and Central America.
I know very left wing people and I read very sophisticated left wing analysis. I also understand the reactionary movements that always happen after an attempted left-wing movement loses steam or collapses. I am well aware of the risk here and having also studied Adorno’s 1949 F-scale, I get why people on the Left see F+scism everywhere. Its taught in Universities. But I believe it is ultimately a hysterical and cynical evaluation not rooted in the reality of America.
That said, I do have concern that incessant character attacks on alot of people that clearly aren’t f+scists will embolden the real ones by making them more sympathetic. But I think you defeat that with optimism not pessimism. I’m more than willing to join a crusade that raises people up instead of tearing them down. I don’t hate anybody. I see no use in holding onto bitterness because when I do it makes me miserable.
Be well man.
I appreciate all of that. Thanks for the thoughtful and informative reply.
*I’ll just make the final point that while my score is not perfect, I don’t think I throw around “the f-word”. (I’ve been using “extremist” with unhelpful frequency, though not only in one direction). And I don’t think you avoid sweeping generalizations about those left of center at every turn. Let’s hope your confidence in American immunity to violent upheaval in the post Civil War era proves well placed. I tend to agree but I see worrisome currents.
If you have a child born in China while (say) working there, or as an illegal immigrant, the People’s Republic of China will not confer, as of right, citizenship on your child.
And people of Han Chinese ethnicity have an entrenched social superiority there. Is that some model for the USA, to be as exclusive as China or Japan?
In a word…bullshit.
The “soil argument” is a foolish an argument as any I have heard. If a child of an American citizen is born in China, I assure you that does not confer upon that baby Chinese citizenship.
It makes perfect sense if your nation is a settler-colonial project, as The United States always has been.
Idiot, you forgot that you are a member of the Anglo-Saxons settler-colonialist project 🙂
.
Sail for Normandy. By swimming!
I’m sorry to have caused offence, I comment entirely without passing judgement.
There is nothing historically or morally strange about settler-colonial societies (Argentina, Canada or Australia, for instance) compared to nations with indigenous populations (Britain or Japan).
I had thought Americans were proud of their “Pioneer” forebears?
I merely point out this difference and suggest that it affects how they might choose to go about granting citizenship.
Britain has never needed to attract settlers in the same way the the United States has. Unlike the Great Republic, our national identity is historically pre-political.
‘Citizenship’ as a legal concept didn’t even exist here until 1948. We did have a qualified Jus Soli common law ‘Subjecthood’ here from the early 17th Century, but since 1980 His Majesty’s Government has required at least one parent of a United Kingdom-born child to be a British citizen to qualify – broadly speaking.
It is necessary to point out that this only applies to first generation children. As a British born citizen, my sons were automatically granted British citizenship. However, my granddaughter, even though born in the UK, did not automatically qualify for British citizenship as she is second generation, her father having been born outside Britain. Her citizenship had to be applied for. It was granted, but it’s not automatic.
There’s some validity to those arguments. But there eventually comes a point when these “settler-colonial” societies transition from that stage to seeing themselves as nations with indigineous populations. It’s hard to pinpoint exactly when that happens and it’s certainly not a binary tipping point. But I suggest it’s already happened or will do shortly in all these countries. In which case, birthright citizenship may not be an advantage to the settled citizens any longer.
Let’s also consider that birthright citizenship probably creates a “pull factor” for illegal immigration. Imagine if we had that in the UK – it would then be impossible to dport any illegal immigrants who had children in the UK (of course, that’s almost hypothetical, since we don’t seem to deport illegal immigrants at all, but that’s another discussion).
Here,just having a pet cat allows you to stay.
It is an odd, seemingly false unless intellectually challenged, state of being to pretend as though a nation founded upon a concept will maintain its original state for hundreds of years without natural or even a necessity of change.
I won’t dignify your amusing comment with a detailed response, son.
What about the American aborigines, the so-called Native Americans? Do you think they just popped out of the ground, de novo?
Of course not. They were descendants of people who had emigrated from Africa to Eurasia and settled it all the way to the Pacific. The pre-Americans migrated from East Asia by way of a land bridge across the Bering Strait. Then they settled in North America and began colonizing the Americas, all the way to Tierra del Fuego. They were, like many others before them, settler-colonialists. Though they did not view themselves that way.
There’s nothing wrong with being settlers and developing colonies. It’s just that revisionist American historians in the late 20th century began to use that description as a pejorative shame-name. Maybe their intentions were good, but they chose to put the ends above the means and now a couple of generations of Americans are completely confused about their history.
Goes to show, one more time, how the road to hell is paved by good intentions
Only then we start hearing about people who are “settlers” mind image ‘log cabins,rifle,Bible,lol’ but these “settlers” are “settling” on other people’s legally owned land,there are houses,roads,orchards ie olive groves,ancient Christian churches with Roman era mosaics of St George and the only use these “settlers” have for the Bible is to wipe their bums with it.
This just shows how pointless a constitution is. The words can be twisted and interpreted to say whatever each side wants them to, and ridiculously difficult to change or clarify
Indeed, mark the “14th amendment” to the immutable, inafallible and unimpeachable Constitution of the United States of America.
You are right on that score
I disagree. Having a written constitution is very useful. Would you like to live in the UK right now with their “uncodified” constitution which allows progressive managerial tyrants to send the police to citizens’ homes, and hand down substantial jail terms, over social media posts deemed to contain “hate speech”? Or would you rather live in a nation with a codified constitution, like the US, where the first thing it says is that the government can’t send armed men to put you in a cage for publicly expressing an unpopular opinion?
What we see in cases like the 14th Amendment are the malign consequences of judicial activists putting their own moral convictions ahead of a clear interpretation of law. I contend that no honest person could read the 14th Amendment, knowing the historical circumstances under which it was ratified, and conclude that it means anybody who happens to be born on US soil, irrespective of their parents’ citizenship, is automatically a US citizen. The aim of the amendment was, specifically, to ensure that those already living within the US formerly as slaves, and their children, would automatically receive the full protections of US citizenship. Notably, this didn’t apply to American Indians. The line about being “under the jurisdiction of…” was considered at the time it was written to clearly rule out its application to children of citizens of foreign nations who happened to be on US soil when those children were born. It’s not unclear at all; it was simply ignored by those who had a certain vision of what they thought the United States should be and were willing to willfully misinterpret the law to get their way.
So, yes, the words of written constitutions can be twisted, misinterpreted, the spirit of them violated, or flat-out ignored by power-hungry ideologues, but at least the words are there for us regular people to read and understand. We can easily read the laws that bind us and see when they’re being dishonestly or improperly applied. And the Second Amendment exists too, in case the government decides to ignore the first, or any subsequent, ones.
How much protection did the constitution offer those who were persecuted during McCarthys Red Scare, or Japanese descended Americans locked up in internment camps during the Second World War? Yes the UK has leaned too far in the direction of policing speech, but the beauty of that unwritten system is that mistakes such as that are easily reversible once they become politically unpopular
I’m not persuaded by this argument because The Red Scare and how Japanese-Americans were treated during WWII are seen as signature moments of shame for the United States where the country allowed itself to violate its own principles in times of perceived emergency. McCarthy was censured by the Senate and drank himself to death out of shame. The Japanese-Americans were compensated for WWII-era internment by the Civil Liberties Act of 1988. It officially apologized for the internment, gave each surviving person $20k, and cited “racial prejudice, wartime hysteria, and a lack of political leadership” for the lapse. Maybe you’ll say, “too little, too late” but the point is that America has repudiated these lapses. For a more recent example, I’d say look at how the Supreme Court’s defense of legally protected speech held the line during the woke moral panic of the last decade when progressives wanted to institute Euro-style speech laws in the US. I doubt any serious person believes that a written document can prevent all abuses or violations of rights in all cases, but when we come to resist government overreach, we have something to point to to justify it.
So the point is that a constitution isn’t infallible as was the claim, and doesn’t offer much protection when the government wants to find ways around it.
The UK has gone too far currently in regards to protecting speech (and the pendulum will swing back in the other direction after an election or two) but the US has also done the same in the past
I’ll also mention your final sentence here: “… but the beauty of that unwritten system is that mistakes such as that are easily reversible once they become politically unpopular.” This is just the point of the value of the written constitution. The political popularity of rights isn’t legally determinative in the United States. It’s very difficult to amend the US constitution for a reason. The founders understood that the freedom to speak freely without fear of official reprisal is essential to the survival of a republic. That right, and some others, they foresaw, must be insulated from public opinion and, thankfully, so far it has been in this country.
But as I’ve mentioned, when it’s been politically convenient to do so such as with McCarthyism those right have disappeared at the whims of the government of the day. So how is it any different to the UKs protections that are reliant on the government being able to control a majority in the Commons?
I think there’s a difference in kind here. The United States never made a law that said one couldn’t be a communist. No right “disappeared,” as you say. The HUAC hearings were meant to discover whether communist/Soviet sympathizers had infiltrated the federal government and were surreptitiously acting as agents of the USSR and/or otherwise undermining the US government. Keeping in mind the US was involved in the Cold War at the time, this wasn’t an entirely crazy concern. The loyalty boards are, I think, what led to the backlash. The mania to ferret out communists was simply taken to the point that it violated the constitution. McCarthy was duly discredited and censured. The UK has “online harms” laws that allow people to be prosecuted for saying things the government deems “hate speech” online. What mechanism, exactly, exists in UK law that will cause, say Starmer, to face a similar backlash? You have no constitutional right to free speech that his administration is violating with these laws. What can you point to when you oppose this insanity of middle-aged housewives getting years in prison for Facebook posts written in anguish at hearing children had been butchered in a dance class by a Rwandan kid?
Do you really think you are not under the same despotic tyranny in the USA as us in the UK. It’s all one administration. And the ones we see are the apparatchiks doing the hand work. The power manipulators,the R families we dont see THEM.
Let us know when you’ve created the first infallible system while you’re chasing Net Zero.
What does Net Zero (which I’ve never once said I’m in favour of) got to do with constitutions?
It’s good if you can change it. Here in Ireland we are small enough to do so. (Incidentally, we did away with birthright citizenship in a referendum about twenty years ago.)
The trouble for the US is that amending it seems to be nearly impossible.
States should have the right to de citizen those deemed undesirable. Political energy and emphasis should be on getting agreement on the definition of undesirable and the process with tbe honest majority of the public afforded a role in decisions.
Will those de citizened under your rules have access to hemlock as Socrates did?
Why not. I support assisted suicide and choice.
Ah “consent”, that frailest peg on which hang all the laws and the prophets of the Whig experiment in nation building.
Don’t bet the house on ending birthright citizenship, even with the current Supreme Court.
Sotamayor/Jackson/Kagan will obviously not go for any change in the view that “subject to the jurisdiction of the United States” just means within its borders.
Gorsuch is a textual literalist. In the Bostock decision, he heard similar arguments about what “on the basis of sex” meant in 1964 and thought “nah, it says ‘on the basis of sex’ none of that extra stuff.” So the chances are extremely high that Gorsuch will look at the text of the Constitution and think along the lines of “nah, I don’t see anything here about what Senator Whatsit thought in the year dot.” At that point you are at four votes for the status quo.
Are you confident Chief Justice John Roberts is going to overturn a precedent going back to 1898? So, that’s a very likely five vote majority assembled to keep things the way they are.
Tend to agree that it will be 7-2 against. Still a worthwhile clarification.
Not sure we are looking at “overturning precedent” as the 1898 case dealt with permanent legal residents.
This is the point that bothers me. Permanent legal residents is rather different than entirely illegal and undocumented. The conflation of the two seems purposely silly.
Just to chime in to say Gorsuch’s Bostock opinion is atrocious and completely contrary to principles he claims to advance elsewhere. The idea that he just had to prioritize ‘textualism’ over ‘originalism’ is bokum – imagine Gorsuch saying ‘free press’ only means literal printing presses. You have to understand the purpose of the law in the context of its original enactment to understand how it applies today. The Founders had no idea what Twitter was, which justifies expanding ‘press’ to include us internet experts. But Congress in the mid-60’s was well aware of homosexuality. That decision will forever be a stain on him, IMHO.
A very timely and helpful article. Thank you!
We Americans need to take this topic out of the realm of soaring, idealistic (unrealistic) rhetoric, and move it to the real world — pros and cons, legal status, and what it would take make changes. Americans need to be better informed and better equipped to address the issues.
I look forward to learning more.
Yes. Agreed.
I don’t cotton to the argument against birthright citizenship, but it would be good for us all to hear it out.
Absolutely.
While the 14th amendment may be poorly worded, there is no reasonable reading of its explicit wording – “subject to the jurisdiction” – that allows abolition of automatic birthright citizenship by presidential interpretation. To allow it would set another very dangerous precedent.
The fact that birthright citizenship abuse is rampant says that the constitution needs a clarifying amendment. The amendment would be popular. That is where the energy of the reformers should be directed.
Unfortunately the post-Civil War Congress did not foresee mass, unauthorised immigration. If there is a justification for ending automatic birth citizenship it may be that while the parents of the child may be considered deportable criminals it would be wrong to deport an American citizen, or to deport the parents but take the child into care.
I would have appreciated the author addressing another problem for pro-immigration birthright advocates i.e. the legislation that was needed to confer citizenship on indigenous Indians passed in the early 1900s.
Does this mean we need to pretend that the interpretation of the 14th amendment has been a 155-year-long small misunderstanding then?
Excellent point. Arguing for a robust national debate is always a good thing. Well thought out and provocative.
This is a very informative article. My thoughts stray to the value of humanity. The hate mongering separatism being spewed by the MAGA bunch, aka Laura Loomer, is about as Neanderthal a look at the geopolitical landscape as one can get. Humanity has some very hard decisions upcoming. One of those being if we are capable of living on this planet as a species rather than as a bunch of delinquent nationalists. It is my thought that, in general, all people are valuable to the survival and sustainability of the species. Not just those few capable of amassing billions of $$$$$$
That’s very naive. How much freedom would “humanity” have to “live on the planet as a species” if the West continued to allow Chinese nationalism to dominate us all?
The point about MAGA is that it at least allows the possibility of a bulwark against Chinese hegemony as the 21st century progresses. The argument you put forward, whilst ‘well-meaning’ would result in tyranny for us all, and the breathing space for us to mature as species snuffed out.
your words exude “suicidal empathy” as it’s been coined by others.
your “humanity” will ruin the US and any other country that wishes to give citizenship to 3/4s of the Third World
We are already living on the planet as a species. What you are suggesting is that we all merge together as a single state under a single government. I find that notion abhorrent; it would be a system of terminal totalitarian rule. That is, there would be no way to get out from under it, save by total collapse of the system.
Far healthier to have a planet with many nation-states (given that the conditions of our existence have made nation-states the dominant and almost-unavoidable form of political organization).
If you give birth on a ship in international waters does that mean you have no recognizable citizenship. It’s just another flimsy law to be abused.
The citizenship of a child is bound up with the citizenship of the parent and is not an independent quality.
Nice to read a pro-Trump policy view for a change. The ‘settler-colony’ sentiment is antiquated.
Just being born in a stable doesn’t make you a horse. Or another Jesus come to that. Being born a USA citizen has a huge downside in that if you later decide to live permanently elsewhere,and why wouldn’t you,you pay double tax for THE REST OF YOUR LIFE,to your new home country and to the USA,and if you dont pay Uncle Sam,among other results,you will never get to visit your family again.