JULY 2, 2023
When my Google Alerts sounded this past week, I knew that birthright citizenship was again lighting up in the news. My interest in debates over birthright is professional and abiding: I’m a historian who in 2018 published a book, Birthright Citizens, that traced this approach to national belonging from its origins in debates among Black Americans at the start of the 19th century to 1868, when the ratification of the Fourteenth Amendment established that, with a few exceptions, anyone born on U.S. soil is a citizen.
On Monday, Florida Governor Ron DeSantis, looking to advance his presidential campaign, promised to reverse more than a century and a half of law and policy and, as he put it in a statement, “end the idea that children of illegal aliens are entitled to birthright citizenship if they are born in the United States.” A few days later, a spokesperson for another GOP presidential candidate, Nikki Haley, said she “opposes birthright citizenship for those who enter the country illegally,” and the entrepreneur Vivek Ramaswamy’s campaign said he would reform birthright by adding new citizenship requirements. Having lived through more than one such outburst in recent years—the first in 2018, when then-President Donald Trump proposed to do away with birthright—I know that any promise to transform our citizenship scheme is sure to set off a debate.
But what, we should ask, is that debate really about? Why does it keep coming up? When we talk about birthright citizenship, we are talking about democracy—its fundamental component that grants equal status to every person born in this country and affords them all the same rights of citizenship.
Let’s briefly review. Although the 1787 Constitution did not bar Black Americans from citizenship, it also did not plainly state what made any person a citizen. The result was that Black Americans received profoundly uneven treatment before the law; most authorities leaned toward the view that color, with its implied links to slave status, disqualified Black Americans from citizenship. Black activists waged a long campaign arguing that, on the face of the Constitution and as a matter of natural rights, Black people were citizens by virtue of their birth on U.S. soil.
Notoriously, the U.S. Supreme Court, in the 1857 case Dred Scott v. Sandford, concluded that citizenship was beyond the reach of Black Americans; their race disqualified them. During the Civil War and Reconstruction, lawmakers remedied this circumstance: first in an 1862 opinion from Attorney General Edward Bates, then in the Civil Rights Act of 1866, and finally in the first clause of the Fourteenth Amendment, which installed birthright in the Constitution, guaranteeing that Black people and all those born in the United States were citizens.
Calls today to do away with birthright citizenship are, in large part, political theater, often a way to project a tough stance on immigration. DeSantis outlined only a very loose strategy, saying he would “force the courts and Congress to finally address this failed policy.” Trump, too, was light on specifics. For all the noise that his administration generated around doing away with birthright citizenship, which he threatened to do multiple times as president, nothing came of it. The meaning of the Fourteenth Amendment as we knew it before the Trump era remains unchanged.
Campaign pledges to end birthright citizenship might get people’s attention, but lawmakers have kept this objective alive in other quarters. Less well known, for example, is how in every session of Congress from 2007 to 2021, a Republican representative introduced something called the Birthright Citizenship Act. The legislation would have redefined the meaning of a minor clause in the Fourteenth Amendment—one that limits birthright status to persons “subject to the jurisdiction” of the United States. In 1868, this exception excluded the children of visiting diplomats and those of Native American sovereign nations. Today, some lawmakers propose to newly expand the meaning of this clause by defining children as subject to U.S. jurisdiction, and thus birthright citizens, only when they have one parent who is a U.S. citizen or national, a permanent resident residing in the United States, or an alien on active duty in the Armed Forces. In Congress, opposition to birthright simmers on the back burner, but it demands our vigilance lest it boil over.
When politicians dispute birthright, they also open up legal questions about where the power to interpret the Fourteenth Amendment resides. Trump suggested that with his authority, as exercised through an executive order, he could reinterpret who is subject to the jurisdiction of the United States and thus a birthright citizen. Members of Congress similarly have taken the view that that body can legislate the amendment’s meaning. Many legal commentators rightly argue that the U.S. Supreme Court has the final say when it comes to the meaning of the Constitution. Our recently constituted Court has not been tested on the issue of birthright, and we must allow for the possibility that it might defer to Congress or the president when it comes to interpreting its meaning.
When Trump first promised to undo birthright, I was primarily concerned about how immigrants and their U.S.-born children would be harmed by such a change. Today, this worry still figures importantly in my mind, but my concerns have grown broader. Calls to undo birthright, though couched in terms of immigration reform, ultimately aim to undo a key precept of our democracy: equitable access to citizenship. Birthright sets an even bar when it comes to being a citizen—all those born here are subject to the same threshold test, no matter whom they descended from. It ensures that, for those born in the United States, citizenship will not be conferred depending on their politics, race, faith, culture, gender, or sexuality. Birthright safeguards those born here from political leaders who would mete out citizenship as a reward or withhold it as a punishment.
The wielding of citizenship as a weapon is precisely what the Fourteenth Amendment was designed to prevent. In 1868, birthright undid the Dred Scott decision. It ensured that the right of Black Americans to belong to this nation was neither open to debate nor susceptible to shifting political whims. Since its ratification, the Fourteenth Amendment has guaranteed the belonging of some of the most vulnerable among us, including generations of children born to immigrant parents. It has protected marginalized, despised, and unpopular people who, when born here, do not need to fear exile or banishment. Birthright citizenship has always been a solution rather than a problem, and our democracy depends on it remaining just that.
Courtesy/Source: The Atlantic