One of the great virtues of being an academic is having friends who are much smarter than I am and from whom I can learn a great deal. A case in point concerns the President’s recent remarks about birthright-citizenship.
“We’re the only country in the world where a person comes in and has a baby, and the baby is essentially a citizen of the United States for 85 years, with all of those benefits,” he said incorrectly, according to the NYT. Other countries do it as well–what really struck me, though, was that this flies right in the face of the Fourteenth Amendment, or so it seemed to me. And so I said on Facebook, in the smug know-it-all tone I reserve for social media:
“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.” Pretty straightfuckingforward.
Well, it turns out not to be so straightfuckingforward. My friends Nick and John debated the matter in the comments section, and rather than let their discussion disappear into the oblivion all Facebook posts eventually fall into, I thought I’d reproduce it here (with their permission, of course).
JOHN: This was actually discussed at some length at last year’s 14th Amendment symposium here in Sewanee. The lawyers and historians present seemed to agree that, though naturalizing the children of immigrants was not what the framers of the amendment INTENDED, they were aware that it contained that implication and were content to leave it there. At the time they could foresee only that it might naturalize the children of Chinese laborers, which would be an issue mainly in California (which, as a consequence, refused to ratify the 14th Amendment until 1959!). However, I read somewhere once that the eminent jurist Learned Hand believed the amendment should not be read as conferring citizenship on the children of people in the country illegally. Hand was a serious Constitutional scholar whose thoughts would be worth attending to–but I haven’t been able to track that down.
NICK: I’m told that this effort has been spearheaded especially by John Eastman of Chapman University, but this Mother Jones article also traces it to some others.
Note, btw, that the recent Hillsdale-College-souced op-eds in the Post have also included one that argued for ENDING LEGAL immigration entirely. I won’t even try to remember what reasons were advanced for that position.
Ultimately, what’s more interesting and concerning here (as in all constitutional interpretation, from a historical point of view) is the question of what principles and values are driving the right-wing intellectuals’ effort to reinterpret the 14th amendment. John, did you get a sense of what those principles and values were? One can agree with the critiques of ‘citizenship tourism’ for wealthy elites, but one can also sense that this is not the main issue for those seeking to end birthright citizenship.
JOHN: I think the argument (which I think is reasonable) is that birthright citizenship for the children of illegal immigrants is distinct from any other situation, even that of “birth tourists.” The difference is that the nation has never consented in any way to the presence of the person who now must be granted citizenship. (The distinction is clear, isn’t it? Of course the nation never consented to my presence either—but it did consent to the presence of whatever ancestor of mine first legally lived here, and thus implicitly to mine. Not so with the child of someone whose presence violates the law.) I believe this was Learned Hand’s objection: that no nation should be compelled to grant citizenship against its own will. Let me ask you one: leaving aside Constitutional arguments (which are fascinatingly murky, turning on specific, ambiguous language in the amendment and the debates about it, like “jurisdiction”) and granting the risky nature of overturning any long-standing Constitutional interpretation–what would you say are the ADVANTAGES of granting citizenship automatically to the children of people who are in the country illegally? What do we gain by this, as opposed to treating such people as residents who might apply for citizenship? It’s hard to see how merely being born on the right side of an imaginary line could create a moral right, so the argument would need to be pragmatic, right?
NICK: So…before I can take on the burden of defending the status quo, I need to step back and distinguish between principles and practical policy priorities. These are two very different things that belong in very different discussions, so please read through the entire post (everybody!) before even thinking about responding to any of this.
In principle, I understand and even agree with those who insist that “as a sovereign nation the US should enforce the laws that are on its books.” So in principle, I’d agree that our borders should be secure. I also happen, personally, to believe *in principle* that we should allow everyone to reside and work legally in the US who wants to and who is able to travel here.
In principle, I also believe that it would be fair to put people who committed deliberate, premediated murder to death.
In practice, none of these policies work out the way they’re meant to. The border isn’t secure, and can’t be totally secured, short of a China-style Orwellian police state based on facial recognition by cameras positioned throughout our border states and throughout the country. We can’t allow unlimited legal immigration, or at least I will give conservatives the benefit of the doubt that there are likely to be strong economic reasons not to do so. Similarly, the death penalty is not and cannot be used in the absolute certainty that no innocents are being murdered by it.
Therefore, I don’t believe we should be focusing on securing our borders against unlawful entry. I don’t believe we should allow absolutely unlimited legal immigration. And I don’t believe in the death penalty.
Now, about birthright citizenship: Like other issues, this can be discussed either in principle or as a matter of practical policy.
In principle, sure, I can agree that there’s no clear reason why people who aren’t legally in the US should be able to claim the good fortune of US citizenship for their children. Lots of people who aren’t legally in the US when their children are born — that is, those who are not in the US at all when their children are born — cannot claim this privilege. So, why should undocumented US residents be able to do so? Of course I see your point.
In practice, however, there will be (short of the Orwellian facial-recognition police state) undocumented parents of children born in the US. Should the children therefore be expelled, at any age? If not, at what age should they be expelled? One advantage of NOT changing our current policy is that NOT changing it averts unjust outcomes for these children – who, if birthright citizenship were rescinded, would essentially become “dreamers” with an even greater moral claim on our sympathies than those we have now.
In practice, the US also faces many urgent challenges: declining economic mobility, infrastructure dilapidation, climate change, all the increasingly visible (or re-visible) forms of injustice. Does the current policy of birthright citizenship contribute to these problems or to other urgent problems? If so, how? What damage is it doing to the interests of most Americans and to our shared prosperity?
Without any clear reason for believing that birthright citizenship is a significant cause of any urgent problem, I will continue to believe that other policy areas are far more important and have a stronger claim to our attention, and I will continue to suspect the movement to rescind the policy as being motivated by something other than a concern for our common future. I simply do not understand how anyone could believe that birthright citizenship is a central flaw in the prevailing legal and political arrangement of our national polity.
Or, rather: I have a suspicion about how to understand it. People who express a wish to deny the children of illegal immigrants US citizenship are, I suspect, in thrall to a zero-sum cosmic vision in which some people “have theirs” and other people will just have to “do without.” They regard the good fortune of US citizenship as a form of inheritable property, which the US should be free to give away charitably, or to offer transactionally on its own terms — but which, above all, belongs unconditionally to the children of existing US citizens, according to a supreme Law of Property Inheritance. I do not believe in a universe that is governed by any such law. For example, as a matter of both principle and practice (subject to the design of effective enforcement policies), I believe we should have much higher inheritance taxes, levied on a much larger share of affluent individuals…because the right to pass private property to one’s children simply is not, for me, a basic law of the universe.
In short: principles are one thing, but I just don’t see why anyone would make rescinding birthright citizenship a practical priority at this moment in history — unless they think that doing so will help solve all our other problems. And that notion is prima facie quite implausible, so I hereby shift the burden of argument back onto the opponents of birthright citizenship: How will rescinding it help solve any of the immediately urgent problems that the US faces?
As a footnote, I have no problem – again, in principle – with John’s suggestion that the “native dreamers” (those who’d be created, literally, after birthright citizenship was rescinded) might be treated “as residents who might apply for citizenship.” But again, I see a problem in practice: our “nation” has proven unable for DECADES to deal definitively with the non-native dreamers by establishing a way for them to “apply for citizenship.” What gives us any reason to believe that our “nation” would do any better by the hypothetical “native dreamers” in the post-birthright-citizenship scenario?
All of which points, ultimately, to the insufficiency for practical purposes of arguments that reify the “nation” as an agent or corporate person with a single voice. John, you employed this reification without comment or apology, as though “the nation” was a term with a clear and unambiguous referent. But then you called the border an “imaginary line.” So is “the nation” real or imagined?
JOHN: Both, like all nations. Political states are constructs, arbitrary at the margins like all constructs, but not therefore unreal. They speak the only way they can, for political purposes, through the voice of their governments. These voices are as authentic as the governments are legitimate. .
NICK: Right! So from my point of view, the nation that spoke a hundred and twenty years ago and established birthright citizenship through the courts is just about as legitimately “the nation” as the nation that would speak through some judge (or whoever) who might be delegated to decide, in individual cases, on whatever criteria, between a “native dreamer” who deserves citizenship and one who doesn’t. What makes either of these “nations” more “the nation” than the other? So, appealing to “the nation” as the arbiter of citizenship is a petitio principii. “The nation” has already spoken. And it decided that for purposes of determining citizenship, the line on our border is the real one.
JOHN: Sure. But of course the nature of Constitutional interpretation (let alone amendment), as of other aspects of our politics, is that the speaking never stops. Neither of us would have trouble finding political dicta from 1868, or 1898, that we are glad to have moved beyond. And–this slightly breaks my resolve to avoid the weeds of historical detail–it isn’t quite true to say that the “nation” has spoken on this specific issue, since in 1868 there was no such thing as an illegal immigrant, and the 1898 Wong Kim Ark case did not concern an illegal immigrant. There are aspects of birthright citizenship on which the nation has remained officially silent, in other words. Pointing this out brings us back to your original question: is this a big enough problem that we need to force a clarification?
NICK: Exactly. John, I appreciate your readiness to engage on this. I have learned something about where some conservative minds are on the subject of national identity, both from you and from another friend with whom I had another exchange on the topic yesterday. I find it interesting (though strictly in relation to my own moral sympathies a bit baffling) that this, of all subjects, elicits so much debate. Clearly the question of what being an American *means,* or should mean, is re-emerging as the political problem of our time for intellectuals on the right. For intellectuals on the left, it simply does not appear to be the most pressing issue in view of the many practical challenges that the country faces.