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Wednesday, June 04, 2008

The surprising survival of birthright citizenship in the U.S.

For the last dozen years, there has been a steady campaign against the Fourteenth Amendment’s requirement of “birthright citizenship” – automatic citizenship for “all persons born … in the United States and subject to the jurisdiction thereof.” In 1996, the Republican Party adopted a plank endorsing a constitutional amendment to get rid of “soil citizenship.” A steady stream of stories about “maternity tourists” fueled popular anger at the right to acquire citizenship by birth within U.S. territory. (See, e.g., here and here ). Statutes and constitutional amendments have been proposed as recently as last spring.

Yet birthright citizenship not only survived, but the attackers seem to have fled the field. The plank is gone from the Republican Party’s platform, Huckabee disassociated himself from the movement for an anti-birthright amendment, and this election year has not seen calls for the abolition of the Fourteenth Amendment ideal.

Thank goodness, say I (being admittedly an extremist on immigration libertarianism). But how did birthright citizenship survive?

I do not have an answer, beyond the obvious one of the formidable obstacle posed by Article V. It certainly cannot be because we represent part of an international trend. To my knowledge, every other OECD nation except Canada has abandoned the idea of birthright citizenship in favor of some version of jus sanguinis (i.e., inheritance of citizenship from a parent). This includes the United Kingdom, which arguably created it in 1608 with Calvin's Case . Sarkozy speaks about France's maintaining a "republican" concept of citizenship – but I take “republican” to mean little more than “not Muslim.” Germany struggled with a partial and tentative bestowing of birthright citizenship on the children of its (mostly Turkish) guest workers in 2000. Several Latin American nations follow birthright citizenship – but I doubt that they contend with as many immigrants as the United States. Canada and the United States may stand virtually alone as nations that take in large numbers of immigrants yet stick to the old jus solis ideal that their children will be citizens if the maternity ward is within the relevant physical space.

Whatever the cause, here is a case in which I think that we have been right to buck the European practice. It seems to me that, regardless of one’s views on the desirability of immigration, it is hypocrisy to rely on laborers whom one disenfranchises indefinitely. The “soil citizenship” ideal insures that eventually any group that is enlisted, tacitly or otherwise, to labor for our economy will eventually obtain political rights through their children.

But I’m still not sure why the campaign to amend the 14th Amendment faded away so ignominiously, despite its prominence as a wedge issue even just a couple of years ago. Is it naive to think that the position lost on the merits (or lack thereof) of the position?

Posted by Rick Hills on June 4, 2008 at 07:44 AM in Constitutional thoughts | Permalink


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The 14th Amendment sets the bare minimum, the entitlement to be a U.S. citizen, an entitlement which cannot be denied by any law passed by Congress. Congress can pass laws to grant citizenship to others however.

A constitutional amendment is the only way to do this. How about this:

Section 1. All persons naturalized in the United States, or born in the United States and having at least one legal parent who is a citizen of the United States, are citizens of the United States and of the State wherein they reside..

Section 2. The citizenship requirements of this amendment shall apply to all persons born on or after January 1, 2000 and to that extent shall supersede citizenship requirements of the 14th Amendment.

(or The citizenship requirements of this amendment shall apply to all persons born after the enactment of this amendment and to that extent shall supersede citizenship requirements of the 14th Amendment.)

The "legal parent" provision is to distinguish it from simple genetic parentage, to prevent American men from selling their seed, to non-citizen women. The date requirement to to avoid depriving citizenship to adults who are already citizens.

That's all you need. All the rest can be dealt with by Congress.

Posted by: Anon | Jun 23, 2008 5:57:32 PM

In what may be a first on blogs, it seems we've reached agreement: The U.S. ought to exclude aliens outright. The only modification I would make is to add the word, "illegal" before "alien."

As for being a nativist, it would be awfully hypocritical of me, as my wife and both my parents are immigrants (albeit of the legal variety). Most of the legal immigrants I know are fierce opponents of illegal immigration. But this isn't too absurd when you think of parallels, say, property owners who resent thieves.

I've detected another contradiction in your arguments, incidentally. You imply that granting poor people mobility across borders is a humanitarian position. But at the same time you condemn Americans for "exploiting" their labor. It seems to me that it can only be one or the other.

It is clear, however, that one group of people above all is hurt by unchecked immigration: the American poor. Studies have shown that mass immigration depresses wages, especially among less-skilled workers who can least afford the sacrifice on behalf of all humanity. But illegal immigration hardly endangers the salaries of lawyers, so why should they care, particularly when it enables them to have cheaper child care and their lawns mowed for less?

Posted by: Alistair | Jun 6, 2008 2:45:22 PM

Alistair asks: "I'm curious as to the degree of your consistency on this matter of labor cartels. How do you feel about the legal protections given unions, or right-to-work laws?"

To which I respond -- As a card-carrying member of several cartels (the Illinois bar and the bars of the U.S. Supreme Court, Sixth Circuit, and eastern district of Michigan), I would be guilty of grotesque hypocrisy to condemn all cartels as iniquitous.

I have no desire to launch into a defense of the right of all persons to cross-boundary mobility. I mention my own belief in that principle only in the interests of full disclosure.

The claim that I offered to defend is quite different: Even if you do not subscribe to the "elitist" view that very poor people ought to be be able to cross national boundaries to make a living, you should still endorse the 14th Amendment's rule of birthright citizenship, because, as a supporter of vox populi, you should object to a permanent class of disenfranchised aliens living in the midst of the nation. Either exclude the aliens outright or admit them to citizenship -- but do not exploit their labor and then pretend (electorally speaking) that they do not exist. Even an old-fashioned nativist, I think, can endorse that position.

(Incidentally -- because I have discovered that people seem to take offense on blogs with extraordinary alacrity -- I do not accuse Alastair of being a nativist of any sort, new-fangled or old-fashioned. I simply note that, if one were a nativist, one could still support birthright citizenship as a good way to spur the government into enforcing its immigration laws, as a way to avoid the demographic time bomb of a host of new citizens' being admitted through the nation's maternity wards).

Posted by: Rick Hills | Jun 6, 2008 11:44:45 AM

A couple of responses: First of all, I think you err in treating "the U.S.A." or "America" as if it were an individual as opposed to a conglomeration of people. Individuals can be hypocrites because they are moral agents, directly responsible for their own actions. Countries do not have moral agency in the same way. Democracy by its very nature is messy, and most political outcomes result from compromise, not absolute fiat. If America were a dictatorship or monarchy, then you could pin on it the label of hypocrisy when it fits.

Second, I'm curious as to the degree of your consistency on this matter of labor cartels. How do you feel about the legal protections given unions, or right-to-work laws? Also, does your libertarianism extend beyond immigration? As I said, individuals can be guilty of hypocrisy.

As for the whole matter of relying on cheap labor, I would gladly forgo it in return for more aggressive enforcement of the law, as would most Americans. (I don't have time for false dichotomies claiming we have a choice only between unlimited immigration on one hand, or mass forced deportation on the other. A gradual attrition through tighter enforcement, which seems to be occurring now, is fine by me, though I fear it is only temporary, until after the next presidential election, regardless of who wins.)

The fact is, most of the political, corporate and media elite feel as you do, which is the short answer to why there hasn't been more anti-immigration action on the part of the government. Though it does seem that the vox populi managed to put the kibosh on the "comprehensive" immigration bill more than once. If it wasn't for the public outcry, I dare say policy would have moved much more in your direction. So, for the time being, at least, there appears to be a stalemate between the popular will and the elite's preference.

Posted by: Alistair | Jun 6, 2008 4:42:13 AM

As I noted in the post, it seems unwise to create a permanent class of disenfranchised workers to serve one's economy: Such a group makes an easy mark for exploitation and a ready source of justified resentment. Germany's experience with such a class of "guest workers" is instructive.

So, by all means, let Americans have restrictive immigration laws that reduce the supply of labor far below the demand, if they so desire. (I don't think that such a policy is sensible, but I admit to being an immigration libertarian, believing as I do that cartels in labor are generally a lousy way to improve wages).

But if the U.S.A. chooses to have such restrictive laws in theory but also refuses to enforce them in practice, then I tend to believe that Americans are wanting to the best of both worlds, cheap labor at hand without political rights for the laborers. In such a case, the penalty demanded by the Fourteenth Amendment should be that the U.S. must contend politically with the offspring of the people whom the nation is exploiting.

In short, my argument for birthright citizenship does not depend on anyone's sharing my own distaste for restrictions on immigration. I disclose my views anyway in the interests of full disclosure.

Posted by: Rick Hills | Jun 4, 2008 10:46:53 PM

I'm curious, as one who has only just stumbled onto this blog: Do you believe there should be any restriction on immigration? Or to put it another way: do you believe that anybody who can manage to get into the U.S., legally or not, should be allowed to stay as long as they wish, to work legally, to receive the full panoply of government benefits, and to vote? Ought there to be any distinction between a citizen and an immigrant, other than a word? I am genuinely interested.

Posted by: Alistair | Jun 4, 2008 10:26:50 PM

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