Everyone is wrong about birthright citizenship

The issue isn't whether it should exist, but why we adopted it in the first place.

Border patrol sends illegal immigrants to Mexico in 1972. Photo by Charles O’Rear.

On June 30, the Supreme Court told Donald Trump that a child born on American soil is no less than an American, sparking a national debate about what it means to be American in the first place and whether birthright citizenship is a central part of that identity or a dangerous mistake.

Birthright citizenship in America has its roots in English common law, which generally held that anyone born within a country’s territory was a citizen or subject. This is known as jus soli, or ‘right of soil,’ and although the British abolished the policy with the British Nationality Act of 1981, we have clung to it, along with most of Latin America. It’s important that we get this right, because the question is not merely who is born here, but what kind of nation we believe ourselves to be.

After the American Civil War, the issue took on enormous constitutional importance because the Supreme Court’s decision in Dred Scott v. Sandford had said that black Americans, even if born in the United States, could not be citizens. To permanently overturn that ruling and guarantee citizenship to former slaves, Congress adopted the citizenship clause of the 14th Amendment, and although its immediate purpose was to secure the rights of freed slaves, its broad language also constitutionalized the longstanding principle that, with limited exceptions such as children of diplomats or invading armies, being born here is enough to make you one of us. Then came the 1898 precedent of United States v. Wong Kim Ark. Ark was born in San Francisco to Chinese legal residents who could not themselves become Americans because of the Chinese Exclusion Act. Upon returning to America after a trip to China, Ark was denied re-entry by immigration officials. But the Supreme Court sided with Ark, thus settling one of the most consequential questions in American constitutional history.

The Court’s majority opinion was written by Horace Gray, a leading scholar of English common law, who acknowledged that the purpose of the 14th was to overturn Dred Scott for former slaves, but he cared less about the spirit than the letter of the law. Yes, the evil that prompted the amendment was the denial of citizenship to freed slaves, but the solution Congress chose was to enact a rule so broadly worded that its language could be applied to everyone who fits its terms. In other words, Congress solved a specific injustice by coming up with a general philosophic principle rather than a specific provision. But Justice Fuller, joined by Justice Harlan, dissented. They argued that a child inherits the political allegiance of their parents, and this is generally true. Pew Research finds that parents in America pass on their religion and politics at similarly high rates. It’s also important to remember that Ark’s case involved parents who were legally residing in America, not illegal immigrants.

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Nevertheless, with last week’s decision in Trump v. Barbara, the Court struck down the president’s executive order to deny citizenship to children of illegal immigrants. Chief Justice Roberts, writing for the majority, discussed English common law crossing the Atlantic with the colonists, the abolitionist framers who wrote the 14th to bury Dred Scott forever, and Wong Kim Ark. Justice Thomas’s 91-page dissent argued the opposite, saying that the clause was meant only for freedmen and their descendants.

The historical case for the majority’s reading is strong. The debates over the 14th show a Congress far more preoccupied with foreclosing any future Dred Scott than with parsing the immigration status of parents. After all, the category of “illegal immigration,” as we understand it today, barely existed in 1868. The dissenters’ theory, that citizenship should track a child’s “primary allegiance,” is a solid argument, but as the majority notes, if the framers had meant to build a domicile test into the Constitution, someone would have said so. Instead, we get pages of legislative history embracing the old common-law rule of the right of soil with almost no dissenting voices. On the other hand, we have never before faced mass migration, and certainly not from populations whose values are corrosive to our own, and who may even be consciously gaming the system in order to destroy us from within. We are a powerful nation, and we have many enemies.

But let’s consider the right of soil more closely, because the concept itself makes good sense. If citizenship isn’t determined by where you’re born, it has to be determined by something else: Blood, ancestry, the status of your parents. That’s jus sanguinis, or ‘right of blood,’ and it’s the system Germany ran for most of the 20th century. Under that model, a Turkish family could live in Germany for three generations, paying taxes, speaking German, burying their dead there, and yet their grandchildren would still be foreigners. And their grandchildren too. That’s the logical endpoint of rejecting the right of soil, a permanent hereditary class of stateless people living in a country that will never be theirs. But the right of soil refuses to let the state punish a child for its parents’ choices. Thankfully, every other area of law recoils from such a notion. We don’t inherit our parents’ debts. We don’t inherit their liabilities. We don’t inherit their crimes, at least not usually. The right of soil is the same principle. The accident of your birth should never determine the story of your life. This is a fundamental concept in a nation where all men are created equal, where we abide no kings, and where every person is given a fighting chance.

But put aside the philosophic calculus, for even just as a practical matter, the right of soil is a better system in several ways. Consider the financial cost, for one. Ancestry-based systems require the state to constantly verify lineage using birth certificates, parental documentation, and DNA testing, sometimes going back generations. That’s expensive, invites fraud, and gives bureaucrats discretion over who counts as a “real” American. By contrast, America’s system is administratively cheap. For the ordinary native-born American, citizenship is proved with a birth certificate, which costs $15 in the state of Virginia, where I live. Under Italy’s ancestry-based system, you have to cough up a non-refundable €600 ($685.50) just to file your claim, and then you have to wait about a year for processing. Germany’s process can take several years.

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Birthright citizenship also helps prevent anything like a caste system from taking root in America. The 14th Amendment’s citizenship clause, which guarantees the right of soil, makes it constitutionally impossible for a class of American-born people to be permanently excluded from citizenship, regardless of how long they or their ancestors had lived here. It specifically closes off the possibility of a hereditary underclass. On the other hand, if we allow enough people from India to move to America simply because they are a benefit to our economy, then yes, we may end up importing the caste system along with them. In fact, we already have. And although caste is not traditionally recognized by law in America, that’s changing too, starting in Seattle.

Here’s the thing. Birthright citizenship made unambiguous sense back when America had no immigration restrictions and no illegal immigration category at all. The concept didn’t even exist. The rule was built for an era when everyone who showed up on American soil was simply let in. Hell, it wasn’t even until the 1980s that illegal immigration became anything more than a marginal issue. But then two phenomena emerged. First, birth tourism. There is now an entire industry of maternity hotels, serving mostly Chinese and Russian nationals, in places like Southern California where women fly in specifically to give birth and secure a U.S. passport for their child, with no intention of raising their children as Americans. Indeed, many will raise them as loyal subjects of our enemy states, and teach them to hate us. Why should we allow this to happen? Second, illegal immigration. Automatic citizenship for children of illegal immigrants functions as a standing incentive structure that undermines the state’s ability to control its own borders. Now we have anchor babies whereby a U.S.-born child who can sponsor parents for legal status at 21 becomes a mechanism for undoing an enforcement action that our political system otherwise supports. This lets individuals unilaterally confer a benefit — a path to family citizenship — that Congress never voted to give them. Again, why should we allow this to happen?

One possible fix to all this is rather simple. According to some, the answer is not to abolish birthright citizenship. The answer is to continue to apply it, but only to those who are legally here. Or, at least, only to the children born here, without the ability to anchor in their families. This is how most of Europe operates, and even there, immigration is out of control. The U.S. and Canada are outliers among wealthy nations in that we offer birthright citizenship without any conditions at all.

And, to be clear, the Supreme Court didn’t shut down the idea that we can revoke or place conditions upon birthright citizenship. What is actually said was that President Trump is absolutely welcome to make that case to Congress and the states, but he doesn’t get to re-litigate Wong Kim Ark by executive order.

Birthright citizenship has been one of the most successful assimilation mechanisms any nation has ever built. It converts the accident of geography into unconditional membership, and it has made second-generation Americans — the children of Vietnamese refugees, Soviet exiles, Nigerian doctors, Salvadoran laborers — some of the most patriotic, hardest-working citizens this country has. Immigration, broadly, has been a source of national strength, not weakness. These Americans are the workers who show up for jobs legacy Americans won’t take, they are the founders of a disproportionate share of billion-dollar startups, and the soldiers who enlist in a military their parents fled.

Every serious immigration system in the world necessarily distinguishes between people building a life in their new home and people using the country as a jurisdictional loophole. We should be proud of our birthright citizenship. But we should not be blind to the fact that this sacred right is abused by people who see America only as an economic zone with a strong currency and a weak border, if not an enemy to be defeated, rather than as a civic project they intend to join. The Court was right that the Constitution doesn’t let Congress or a president solve that problem by redefining who counts as a citizen. But we, as Americans, must still decide how to protect the norm from the minority who exploit it without punishing the overwhelming majority who don’t. Unfortunately, our current state of tribalistic politics hardly allows for an intelligent discussion of such a volatile issue.

We have to decide what it means to join this nation and whether our values are worth preserving at all. To the degree that they are, we have to face some hard truths about the values that people from other cultures bring with them, about the people who will add to our noble campaign, and about the ones who are little more than enemies within. The Constitution settled who is an American. The harder question is whether we still know what it means to become one.