Hi Mr. Anton,
Thanks for “Citizenship shouldn’t be a birthright.” I can tell you’re very passionate about this. But especially with hot-button issues like birthright citizenship, legal analysis and sources often come with an ideological slant. I’ve tried to include suggestions which present immigration law with all of its nuance, historical background and relevant statistics. Anyway—here’s my corrections in order of appearance!
First off, I’m worried that you’re presenting a somewhat misleading “quick fix” to the question of birthright citizenship, without illustrating the complex power dynamics involved. Your statement that in the case of citizenship “each political branch of government has the constitutional authority needed to fix it” is simplistic. The branches can coordinate to change immigration law, but they need to cooperate. Maybe consider including how the principle of governmental checks and balances applies to immigration? The division of constitutional powers regarding immigration involves a much more intricate process than what you’ve discussed. For the reader’s sake, I would try to explain this, rather than gloss over it.
For example, Congress and the executive branch hold almost limitless power over immigration due to the plenary power doctrine. But there are distinctions limiting what type of power each branch can exercise; for example, the executive branch should, as it does in most cases, follow the lead of Congress. Congress can decide which types of non-citizens will be allowed or denied entry to the US, while the executive branch dictates who meets the criteria within each class. The judiciary historically defers to Congress’ authority on immigration, under the idea that immigration is an inherent sovereign power transferred to our government from Great Britain following the American Revolution. Some argue that this power stems from factors outside the Constitution, and the Supreme Court has largely refrained from directly commenting on birthright citizenship. There were two notable exceptions: Plyler v. Doe (1982) where it was determined that undocumented immigrants were entitled to services and protections under the 14th Amendment and INS v. Rios-Pineda (1985) where a court unanimously decided in a non-binding aside that a child born of undocumented immigrants was in fact a citizen.
Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment.
Could we use another word than “shown?” “Shown” implies a definitive solution to the birthright citizenship question, and you need to offer the reader more than one lawyer’s viewpoint here. Although there are a number of constitutional law scholars who agree with Erler’s statement that the 14th Amendment has been misunderstood, this Fact Check.org article mentions that there are an equal number who disagree. “Argued” would be a better choice here and more fully represent the diversity of legal opinions.
Second, the amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else” — that is, to no other country or tribe. Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”
I know I’m just a fact checker and not your editor, but there are two huge misquotes here, and you probably need to reconsider (and probably rewrite) this entire paragraph. We’re missing information and context that’s integral, especially for the average reader who doesn’t know the minutiae of constitutional law. First, I feel that the small snippets of the Trumbull quote are misleading. The full quote reads: “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction.” What Trumbull’s referring to here is the quasi-sovereign status Native American tribes had in the eyes of the American government at that time. But Native Americans were not considered citizens until birthright citizenship was extended to all Native Americans in 1924; unless Native Americans are also to be stripped of citizenship, it doesn’t seem like you can rely on that statement for interpretive context.
My bigger concern, however, is with the second quote. By adding the “or” you’ve altered the meaning of Howard’s words. In its entirety the quote should say: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” You’re creating three distinct exclusionary categories here while the original quote only mentions one. I would suggest either using the quotes in their entirety or not at all.
The framers of the 14th Amendment added the jurisdiction clause precisely to distinguish between people to whom the United States owes citizenship and those to whom it does not. Freed slaves definitely qualified. The children of immigrants who came here illegally clearly don’t.
Again, I would caution against the totalizing language here. Value judgements like “definitely qualified” and “clearly don’t” seem like an overreach when we’re describing something many people fervently disagree about. For example, while it’s very true that the clause meant to distinguish who is “owed” citizenship by the government, there is nothing clear about the “children of immigrants who came here illegally” being specifically excluded. It’s not clear that there even was such a thing as “illegal immigration” when the 14th amendment was drafted. Moreover, if the quotes are used in their entirety, it seems clear to me that the two exceptions were for Native Americans and the children of diplomats. If you want to make the argument that all these interpretations are wrong, you need to say why, right?
Those framers understood, as did America’s founders, that birthright citizenship is inherently self-contradictory. A just government in the modern world rests on the social compact, a freely entered agreement among free citizens. That compact’s scope and authority extend only to those who have consented to its terms and whose membership has been consented to by all other citizen-members. A compact that anyone can join regardless of the wishes of its existing members is not a compact.
Where did you get the information about the Founding Fathers’ opinions on citizenship? I wasn’t able to find anything that supported your statement. For example, Alexander Hamilton (an immigrant) often contradicted himself when it came to immigration policy. Hamilton, in his 1791 Report on Manufactures, praised the symbiotic relationship between manufacturing and immigration, finding both beneficial for the overall well-being of the young, scrappy and hungry country. Later, however, Hamilton supported the Alien and Sedition Act of 1798, which made it more difficult for immigrants to become citizens. Thomas Jefferson also shared this wavering viewpoint, cautioning against the arrival of British immigrants in his 1781 book Notes on the State of Virginia but softening his position during his first State of the Union address a decade later. But all these Founding Fathers seem primarily concerned with the naturalization of immigrants themselves and don’t mention birthright citizenship. Could you possibly find another group to mention in your aside? Were you referencing America’s “second founding,” prompted by the post-Civil War Constitutional Amendment in the 1860s? If not, I think it would be better to just strike this.
Also, could you clarify which social compact (better known as a social contract) you are referring to? There are dozens of variations throughout history with slightly different definitions. I’m assuming you’re not alluding to the social contract of Hobbes, where individuals expressly cede many rights and freedoms for the benefit of the state. Jean-Jacques Rousseau, who authored the best-known definition of the social contract, defined it as this: “Each of us puts his person and all his power in common under the supreme direction of the general will; and in a body we receive each member as an indivisible part of the whole.” Or maybe you’re using the interpretation of anarchist Pierre-Joseph Proudhon, who wrote “The social contract is an agreement of man with man; an agreement from which must result what we call society.” None of these definitions explicitly mention citizenship as a necessity of the social contract. That creates a problem with your definition as a “freely entered agreement among free citizens.” Potentially, you might rephrase it as a “freely entered agreement among individuals?”
Some will argue that the Supreme Court has already settled this issue, establishing birthright citizenship in United States v. Wong Kim Ark. But this is wrong.
You’re technically right here—but actually, birthright citizenship was established years before Wong Kim Ark during the Lynch v. Clarke case in 1844. Julia Lynch, born in the United States to Irish tourists, received citizenship despite having returned to Ireland shortly after her birth. Although she hadn’t resided in the country for over 20 years, justices felt she was still entitled to the rights and privileges of a continually residing citizen. This ruling relied on the principle of jus soli or “the right of the soil,” meaning that you are a citizen of the place in which you are born. Perhaps it would be better to explain that Wong Kim Ark arose from the question of whether non-white people could be citizens?
Practically, birthright citizenship is, as Erler put it, ‘a great magnet for illegal immigration.’ This magnet attracts not just millions of the world’s poor but also increasingly affluent immigrants. ‘Maternity hotels’ for pregnant Chinese tourists advertise openly in Southern California and elsewhere. Fly to the United States to have your baby, and its silly government will give him or her American citizenship!
I’m concerned about the use of the Erler quote here for a number of reasons. Your attribution is incorrect; it wasn’t originally his idea. President Trump mentioned the citizenship magnet first, writing it as a part of his immigration policy during his campaign in 2015. More importantly, where is the actual evidence that birthright citizenship is a “magnet for illegal immigration”? Yes, there are approximately 4.5 million citizen children under the age of 18 living with at least one undocumented parent, according to Pew Research Center data released in 2010. But some of them have a documented parent, and anyway, Erler’s argument doesn’t give us any way of knowing that these children’s births were the main reason for their families’ immigration. In 2016, The New York Times reported that increasing economic hardship and threats of gang violence were the main factors driving family migration from Central America; it’s not clear to me how we know Erler is right and the NYT is wrong?
Also, saying birthright citizenship attracts “millions of the world’s poor” seems like a significant overstatement, unless we’re counting people who haven’t come but want to? Quantifying birth migration is difficult, since the State Department doesn’t keep any official numbers, but an NBC report citing the right-leaning Center for Immigration Studies estimated that 36,000 babies are born to foreign nationals each year, which is a much smaller number, and in any case, the article that’s from makes it clear that birthright tourism is something much more well-off people do.
You might need to add some nuance to the last sentence as well. In response to the growing “maternity hotel” business in California and suspicions over large-scale visa fraud, Border Patrol agents have begun to tighten security for pregnant Chinese women traveling through major airports. Many have even been turned away, meaning that a flight to the US alone offers no guarantee of giving birth here, let alone getting citizenship for their child.
It is no wonder that citizens of other countries take advantage of our foolishness. Life is still better here than almost anywhere else, including rising China and relatively prosperous Mexico. The wonder is that we Americans continue to allow our laws to be flouted and our citizenship debased.
What metrics are you using to measure how life in the United States is “better than almost anywhere else?” You should use definitive statistics to back this up. The US News and World Report Best Countries list, based on studies from Wharton School of Business, ranked the U.S. eighth overall, owing to our cultural influence, political power and entrepreneurial possibilities. However, we rank 17th in terms of quality of life due to income inequality, affordability of living and safety (due to the fact that the U.S. leads the developed world in gun deaths).
It falls, then, to Trump. An executive order could specify to federal agencies that the children of non-citizens are not citizens. Such an order would, of course, immediately be challenged in the courts. But officers in all three branches of government — the president no less than judges — take similar oaths to defend the Constitution. Why shouldn’t the president act to defend the clear meaning of the 14th Amendment? Judges faithful to their oaths will have no choice but to agree with him.
I would qualify your argument here. It’s a possibility, but it’s certainly not a certainty. There’s a hotly-contested debate regarding the role of the Constitution when altering the parameters for citizenship. These divisions typically fall along partisan lines and although this is an opinion piece, for the reader’s sake there should be at least a passing mention of the nuances of the argument. Some feel that there’s no need to change the Constitution, while others believe that a new amendment or re-evaluation of Wong Ark Kim would be necessary to overturn birthright citizenship. But there’s no way of knowing how the exact scenario would play out. We owe it to readers to present the situation for what it is at this point—a hypothetical.
Thanks for letting me work with you on this! Best of luck with the second draft!
-CCP
