What is an American? The Case For Birthright Citizenship
Examining birthright citizenship and immigration in America, and rebutting the popular arguments against it.
There has been a lot of debate lately about the merits of birthright citizenship, especially after Trump’s recent Executive Order trying to get rid of it called, “Protecting the Meaning and Value of American Citizenship”. I’ve been seeing more and more nationalist centered arguments regarding why we should get rid of birthright citizenship, and wish to rebut them as best I can from a legal, historical, and cultural perspective.
The Legal Argument:
I will start with this, since it is the easiest to argue. It is, quite frankly, painfully obvious that Trump’s recent Executive Order is unconstitutional. The EO claims that the 14th Amendment was never intended to give everyone born in the US citizenship:
“But the Fourteenth Amendment has never been interpreted to extend citizenship universally to everyone born within the United States. The Fourteenth Amendment has always excluded from birthright citizenship persons who were born in the United States but not “subject to the jurisdiction thereof.”
This is false both per the wording of the 14th amendment, as well as according to already established legal precedent. The 14th amendment states:
“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.”
To be subject to the jurisdiction of the United States means to be within its territory. Any implication that illegal immigrants are not subject to the jurisdiction of the US, like the above EO is arguing with clever obfuscations, would mean that those people would also not be subject to any other United States law, which is categorically false. The very nature of having any legal status at all means that they are under the jurisdiction of the United States. Every person that enters this country has certain rights under the law, regardless of their legal status; just like you can’t kill an illegal immigrant just because they are illegal, you also cannot deprive their children of citizenship per the 14th amendment.
This is an especially silly argument because this matter was already settled by the Supreme Court over a century ago in the United States v Wong Kim Ark case in 1898, in which the court ruled:
“The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”
It’s so ridiculous, in fact, that a judge has already temporarily blocked the order. As Judge John Coughenour puts it:
“I’ve been on the bench for over four decades. I can’t remember another case where the question presented was as clear as this one is… This is a blatantly unconstitutional order.”
This will likely be fought in the court for a while, and will likely go to the Supreme Court at some point. I would hope that even this illegitimate and corrupt Supreme Court would rule in favor of the constitution, but I suppose it hinges on how much money Trump is able to bribe his judges with, and whether they have any shred of moral fiber or integrity left.
And don’t misconstrue my argument, I am not saying that we should simply let illegal immigrants into the country because of the 14th amendment. I have no problem with having border patrol and deporting any aliens who break the law. However, there needs to be a simpler and more streamlined way for people to apply for citizenship, more funding for federal judges for the backlog of cases and to resolve the illegitimate asylum claims, and I believe there should be something in place where illegal immigrants who have legal children, or can prove they have been here a certain number of years without committing any crimes, can apply to some sort of naturalization process. Many of these people work jobs no one else would, and contribute taxes to the economy for years that they can’t benefit from, so it only seems fair to allow them some amnesty.
The Historical Argument:
Jus Soli, aka Right of Soil or Birthright Citizenship, is mostly a practice common in the Americas, while Jus Sanguinis, aka Rule of Blood or Hereditary Citizenship, is overwhelming common in the old world. Historically, this can be attributed to the fact that many of the people colonizing the Americas were neither born there, nor were they ethnically native to the region, meaning that another standard had to be created in order for citizenship to be assigned.
In Europe and the rest of the old world, thousands of years of migrations and empires rising, conquering, displacing, subjugating, and eventually crumbling and starting anew, meant that different groups had defined cultural identities and religious practices, as well as centuries of beef and borders. Of course, the Native Americans also had that sort of history, but those histories were mostly eradicated by the colonists.
Contrary to what many are familiar with now, things were much more localized before the modern age, and the idea of citizenship being valued in other states and territories was not really a thing. Citizenship as an idea has existed in some form or another since the Greek and Roman days; However, not in the same way as it does today. Citizenship to the Greeks conferred a status to those in society of a higher class or of great accomplishment, and gave them certain privileges that others would not have; But, that only applied in the city-state they resided.
In Rome, where Jus Sanguinis originated, citizenship was similarly something that conferred upon you status and privilege, as well as certain rights. The right to vote, buy property, marry other citizens, and fulfill certain positions, as well as protection from certain punishments, was determined by citizenship, and this citizenship was passed down through blood. There was both a status and ethnic component to this, as for a long time only Latins could be citizens. However, with the expansion of the republic, and then the empire, more concessions would be made. Originally it was reserved for Rome proper, then after some wars, the Italian peninsula, and then it could be earned through military service, so on and so forth. Eventually, due to the unifying nature of the empire, a Roman citizen enjoyed the same status and rights from Spain all the way to Jerusalem. This is the western basis for what citizenship legally means in the modern day. But for the most part, unless unified under a common banner by a larger empire, most states and kingdoms remained as loose confederations of local groups, cities, and cultures.
In the modern age (roughly the 1600s - today), as states began to industrialize and keep better records and create more complex financial systems, the idea of citizenship became more important. As the world slowly became more interconnected, and communication more efficient, smaller states and colonial powers started to take more territory and clump together. Empires became a commonality, and the need for a unified identity between these now conjoined territories became a necessity; Thus the idea of the Nation-State was born. Our concept of countries as we know them today is a very new thing (19th century). There was no Germany for most of history, you were Bavarian, or Prussian, or Saxon, or some other Germanic group; Same with France, you were from Brittany, Normandy, or Burgundy, etc.; Likewise with Great Britain, you were English, or Welsh, or Scottish. These national identities did not come about until these kingdoms, duchies, and city-states were united under one Empire and homogenized into a larger nationality.
Common citizenship based on this new national identity would legally unify these peoples, and guarantee a standard of rights and opportunities one would be afforded anywhere in the country. Modern systems of law require such efficiency. But here’s the rub: remember all those grudges people held against each other? Those still very much existed, and so, per the Roman example, Jus Sanguinis became the law of the land. Didn’t want a Frenchman being mistaken for a German, after all.
In America, things were a bit different. After the revolution, and a few years of growing pains, the 13 colonies decided it was better to go at it together than alone, and the Union was born. People don’t realize it, but back then the colonies really were more like separate countries, each with their own culture and immigrant diasporas. They even tried separate money at first, but most of the colonies didn’t have enough power or the economy to stand on their own.
For a while, the matter of citizenship was not much of a concern. There was plenty of land and resources for immigrant groups to claim. However, there was a huge problem group that would define America’s approach to birthright citizenship; those being African slaves and their descendants. Since its inception, the issue of slavery had been a powder keg ready to blow, and no one wanted to be that spark. Tensions rose nonetheless, as debates between the northern and southern states over whether slaves and their descendants were people or property were constant. If they were people, then they could be citizens, and they would be given those rights entitled to them in northern states where slavery was outlawed; if they were property, then they had no such entitlements. This came to a head after the infamous 1857 Dred Scott v Stanford Supreme Court Case, in which the court ruled that descendants of slaves were not American citizens:
“A free negro of the African race, whose ancestors were brought to this country and sold as slaves, is not a "citizen" within the meaning of the Constitution of the United States… Consequently, the special rights and communities guarantied to citizens do not apply to them.”
One civil war later, and we had a new problem on our hands; how does the government handle all these slaves once we free them? The common precedent for citizenship based on blood wouldn’t work for the United States. There were too many different groups with different heritage; slaves were imported from Africa, there were a lot of English, Dutch, and Italians in the northeast, Scotts and Irish down south, Germans in the Midwest, French in Louisiana, Spaniards and Mexicans in the new territory out west, and there were still Indigenous tribes throughout (simplistic overview, but you get the idea). And so, the 14th amendment was born from necessity, and birthright citizenship became the law of the land (quite literally).
The Cultural Argument:
“Culture” is the argument nationalists and fascists will levy at the issue, and it sounds convincing to many. The rhetoric I am hearing increasingly is, “People are not just economic units”, and “Immigrants are having more children than American citizens, and/or there are too many coming into the country, and they are trying to change our American/European/Western cultural values”.
The former argument about economic units sounds strange, but let me explain what it implies. This is often in response to the argument that immigrants are very important to the economy, which is true. People who say this are implying that there is some intrinsic or cultural value that native born Americans have, and those values are what we should be using to determine who should stay here and who gets citizenship rather than any economic value they may bring. This doesn’t pass the sniff test, because who should be the arbiter of what American cultural values are? Discriminating in this way would certainly be biased against certain groups of people, and would be rife with abuse. Furthermore, whether you like it or not, economic considerations have been the driving force behind immigration for centuries, and they are of very real concern now. The fact is, developed countries are having less children, and aging populations are going to become a problem in the near future. Immigration, while probably not a sustainable fix, does help America maintain its workforce, especially in low wage and high labor industries. There is a debate to be had over whether these jobs should have such low wages in the first place, but the solution to that would be going after the entities exploiting this low wage labor rather then the individuals doing what they must to get by.
The latter argument is one which I despise, and have been hearing my entire life. It is part of the White Replacement Theory perpetuated by white supremacists, christian fundamentalists, and fascists. The most generous interpretation I can give of people saying “there’s too many immigrants” is that they are worried that they will be crowded out of the workforce by foreign workers. We saw this flair up recently with the whole H1B Visa controversy. To people in that situation, I understand the frustration, but again, blame lies solely on the corporations outsourcing their labor to the cheapest workers, not the individuals themselves.
When you really dig down, though, many people saying that are trying to logically justify their xenophobic beliefs. Mexicans have been the target of this rhetoric since the Mexican-American war in the 19th century. They are an easy target because they often speak a different language, are brown, mostly catholic, and live in a lot of poorer areas. Mexicans (and let’s be honest, anyone below the border is Mexican to them) have been “stealing our jobs” since I was a kid, and I’ve still yet to meet someone who lost their job to a Mexican immigrant. You also constantly hear about all the crime coming over the border. Trump literally said they are emptying their prisons and asylums and sending them here, and that they’re eating cats and dogs. And sure, it is true that some crime comes over the border, but not nearly at the rate that people on Fox claim. In fact, undocumented immigrants commit crime at lower rates then native born citizens. If you think about it for just a second, that makes perfect sense; the last thing illegals want to do is attract attention from law enforcement or the government. And drugs flowing over the border would decrease a lot if the US would finally federally legalize marijuana (and mushrooms while they’re at it) and make it more regulated and accessible. There are far too many people who live nowhere near the border who have these ideas fed into their head by Republicans trying to scapegoat the results of their failed policies.
Since the war on terror, and due to increased immigration and refugees from the Middle East, the Neo-Nazi movement has shifted its focus a lot to Arabs and Muslims as the “destroyers of western society and Christianity”. This is more an issue in Europe and Canada, but it is echoed heavily in America as well. In Europe, I suppose I understand the push-back more, because there have been terrorist attacks in recent years, and they absorb most of the refugees, but in America these fears are largely unfounded. I’ll admit, I’m not a huge fan of many of the tenants of Islam, but I bare no more disdain for them than I do Christian fundamentalists and evangelicals.
Because of this fear, and hatred, and lack of accountability, these people wish to redefine what an American citizen is. But their idea of America is warped and robbed of everything that made America great in the first place.
So, What is an American Citizen?
It sure as hell isn’t just western European and Christian, or related to any specific bloodline, and never has been. America has always been the safe-harbor for the lost and the dreamers. Do you think the people that left England for largely unexplored lands with no infrastructure were killing it back home? Of course not. The Roanoke Colony straight up vanished, and yet they still came. They were all seeking something, whether that be escape from persecution, glory, God, opportunity, or a second chance at life, and I believe that is something we should continue to strive for embodying as a nation.
But even if you take the Christian and European arguments at face value, they very quickly fall apart with any deeper examination. On the Christian side, Freedom of Religion was enshrined into the first amendment for a reason. Again, groups escaping religious persecution were a huge percentage of the first colonists, and they knew very well what state sponsored religion could lead to. Throughout European history, the Church has been responsible for some of the greatest acts of tyranny committed. For that reason, separation of church and state must be preserved in any true and fair democratic system. But, for the sake of argument, lets accept Christianity as an essential American value. Here’s what the Bible says about foreigners:
The foreigner residing among you must be treated as your native-born. Love them as yourself, for you were foreigners in Egypt. I am the Lord your God.
Leviticus 19:34
Thus says the Lord of hosts: Render true judgments, show kindness and mercy to one another; do not oppress the widow, the fatherless, the sojourner, or the poor; and do not devise evil in your hearts against one another.
Zechariah 7:9-10
So even as a non-Christian myself, I am more on the side of the Bible than many that would weaponize it to justify their hate. It’s no wonder so many fake Christians got mad at the priest that asked Trump for mercy on behalf of illegal immigrants a few days ago. Acknowledging what the Bible actually teaches exposes their hypocrisy, in all aspects of their life.
Well, that argument fell apart, so let’s move on the European essentialism one. This is similarly laughable, because unless you come from an English or French family that settled in the early colonial days (who were literally foreign invaders to the natives), nearly every American today comes from a group that immigrated here fairly recently, was likely poor, and was at one point discriminated against. The very same arguments people say about Mexicans and Arabs are the ones that they said about Italians, Irish, Germans, Jews, Slavs, Poles, Chinese, Japanese… you get the idea. Your ancestors probably couldn’t speak English when they first got here either; Nonetheless, these peoples have all become the pillars that hold up the grand American experiment.
Should we have sent the free slaves back to Africa? Slaves imported against their will from Africa built the economy of the south, and of America as a whole, and their descendants kept this nation on their back through cheap and often undesirable and grueling labor. Not only that, their bodies were sacrificed against their will for experiments that gave you much of modern day medicine. Their perseverance in the face of incredible adversity and prejudice created much of the American music, art, and food that you likely enjoy today. There was a time when it was commonly thought that African Americans and Whites would never be able to coexist, yet here we are.
Should we not have accepted the Irish escaping from famine in their homeland? Should we not have accepted the Italians seeking refuge in the land of opportunity? The Irish were seen as animalistic, and second only to Africans in how they were treated. Italians were seen as poor brown people that brought the mafia and crime with them. And both were hated for being Catholic. But you know what happened? Their children were more American, and spoke English, and theirs even more American, and more integrated. And eventually, as the great American mixing pot has done with all cultures it encounters, those people became staples of America. The great irony is that once they were accepted as part of the white European majority, they treated those that were in that same position they once occupied with the same cruelty.
Should we have barred our ports from the Chinese? Those first Chinese immigrants helped build the transcontinental railroads, a very dangerous and low paying job, and their children have proliferated a wonderful fusion of Eastern and Western culture. Same with the Japanese. Should we have kept the Japanese interred until we could find ways to deport them? Japan has become one of our greatest allies, and one of the most popular exporters of culture and goods to America in the world.
Should we have rejected the Jews escaping from the Nazis, or those seeking to rebuild their lives after the holocaust? How many invaluable scientists and artists did Germany throw away because of their bigotry? And we saw the consequences of that hate, as Jewish scientists were a huge part of the Manhattan project that helped end the war. America has been one of the last safe-havens for Jewish people anywhere in the world, and they have been incredibly successful as a people here, and an essential part of many American industries.
That is the America we should be striving to be! That is the America I can be proud of. Have we forgotten the promise of The New Colossus? Have we forgotten the plea of those huddled masses, yearning to breathe free? I have not, and I would hope that any reading this would join me in the rejection of those who wish to trample the truth of the American Dream.
Ever vigilant, your eyes in the sky,
~Minerva
That was super informative and answered many questions. Thank you.
Excellent!