“All Persons Born…”
The Fight Over Birthright Citizenship
***Update: Trump, echoing many scholars on the right, has seized on the mention of “jurisdiction” in the 14th Amendment as a legal justification for a planned Executive Order to end jus soli, which will undoubtedly trigger an epic battle in the courts over the heart and soul of America. So fasten your seat belts people…
Most Americans are shocked that 80% of the world’s countries do not let you be a citizen just because you were born there. When I traveled to Australia a few years ago while pregnant with my son, a friend, a lawyer no less, joked that if I had my baby there, “he will be Australian!” She actually thought that if I had my baby in Australia, he would be an Australian citizen.
Jus soli, or “birthright citizenship,” as Americans usually call it (reflecting the fact that it occurs automatically at birth,) is written into our Constitution, despite what some Trump administration officials would have you believe. It is also a founding principle of the English common law and forms the basis of a Congressional statute (sec. 1401 of Title 8). Many conservatives, however, believe that there is wiggle room in the law because birthright citizenship applies only to those persons “subject to the jurisdiction” of the United States. To most legal scholars, this phrase was clearly added to exclude diplomats and the citizens of certain semi-independent Indian nations, but that has not prevented a cottage industry of legal scholars on the right who claim otherwise.
I will not plunge into the debate(plenty of others have done so already). Suffice it to say that the history of the Americas is generally one of automatic jus soli, reflecting its history as a continent of immigrants. Jus soli is also firmly based in the English common law and is arguably something anglo-Americans should be proud of and support. Just as compellingly, the very real, very serious problems experienced by jus sanguinis countries, including civil war, ethnic cleansing, conditional citizenship and the violation of basic rights, statelessness and the ongoing exclusion of minority groups and failures of integration should give any proponent of jus sanguinis pause.
Yet, over the past decade, the fight against jus soli has become a cause celebre of the right. While Trump administration official Michael Anton’s op-ed in the Washington Post came as a shock to many people, in reality he is merely putting forth the opinion of many far-right nationalists, an opinion they have been mulling over and working on for years. The fact that Michael Anton had a job in the Trump administration means that these views are no longer “fringe” as some people continue to hopelessly claim, but have very much entered the mainstream. At what point to we accept that many Americans, both inside and outside of academia, wish to fundamentally change the nature of America and, therefore, support the end of jus soli? Many people voted for Trump to achieve just such a transformation and Trump is now searching for judicial appointments that will use the law to achieve these ends. Is anyone who believes in a multi-cultural, plural America, the America we all grew up in and were hoping to continue living in for the rest of our lives, and to bequeath to our children…are any of us prepared for the coming war?
We are lucky that the right to automatic jus soli is written so clearly into the Constitution and that we have prior Supreme Court cases, chief among them Wong Kim Ark, to support our view. We are lucky that the history of jus soli did not begin with the 14th Amendment, but has been a founding principle of English common law since Calvin’s Case in 1608. As a result, history, facts and the Constitution are on our side. But laws can be changed and Constitution is always up to interpretation, no matter how strong a precedent may seem. Ireland, a former bastion of jus soli, long an immigrant-producing country but now an immigrant-receiving country, restricted jus soli to those who would otherwise be stateless in 2004.
In America, the radical right now has a fair amount of support in the government and the courts to abolish jus soli. Yet while the radical nationalist movement in the United States has already placed champions in key positions in the Trump administration, academia and elsewhere, including people like Michael Anton and Steven Miller, and many recent judicial appointments to support his worldview, there are few left-leaning civil society group in the United States working to protect jus soli.
Conservatives have been arguing about jus soli for quite some time and many prominent conservatives support it, or are at least having a dialogue about it as a matter of public policy. By contrast, neither the center-left nor the far-left are engaged. The issue might as well be invisible to most Democrats. While many civil and immigrant rights organizations and lawyers support jus soli, the issue barely registers for larger American advocacy groups, or within even the Democratic Party or liberal activists. Proponents of an inclusive America are, quite frankly, asleep at the wheel. But switching to a jus sanguinis, or law of the blood, citizenship regime would transform America, risking the creation of a stateless underclass of non-citizens and weaken the rights and integration of immigrants. It would change not only the daily experience of living in America, but the very idea of what it means to be American.
And what does it mean to be American? What is true equality before the law? Universal citizenship to all persons born in the territory of the United States is the bedrock upon which America was built and continues to be built. To abolish jus soli would be to abolish the main thing that makes America possible. Protecting jus soli and expanding it throughout the entire territory of the United States is essential to defending America, both as a place and as an idea.