Birthright Citizenship Is Not Just for Immigrants
It undergirds American equality.
NOW THAT WE’VE COMPLETED our celebration of America’s 250th birthday it’s time to prepare for the 300th—the tricentennial. I will not live to see it but I hope the nation will.
At least, I hope a certain kind of America will celebrate its 300th year—one that has regained its moral equilibrium and turned its back resoundingly on illiberalism in all its ugly forms. If the United States does not reverse its current retreat from the principles and traditions that ennobled it, if it becomes the kind of predatory, grubby, and aggressive nation that Donald Trump champions, or if it becomes the socialist shambles that a growing number on the left envision, then it will not deserve to celebrate a tricentennial.
How do we find our footing in the face of these challenges to liberalism? Well, the Supreme Court just helped us. Though the Court has done its share to deform our constitutional structure recently, it also gave us a gift for the 250th anniversary of the Declaration. That gift was the birthright citizenship case, Trump v. Barbara. Yes, it would have been more bracing if the Court’s decision had been 9–0. But on the key concepts, the majority affirmed a principle that is foundational to our republic: equality. And by affirming that citizenship belongs to (nearly) every child born on American soil, the Court also tipped the scales on another argument currently roiling our republic, namely whether we are a creedal nation or one of blood and soil.
Despite the claims of anti-immigrant fanatics, the legal basis of birthright citizenship has hardly been contested in American history. As Chief Justice John Roberts’s majority opinion noted, the practice was embedded in common law and then codified in the Fourteenth Amendment. Neither politicians nor legal scholars thought the amendment’s phrase “subject to the jurisdiction thereof” was ambiguous. It excluded only the children of diplomats, children born to invading soldiers (thankfully not a big problem), and certain native tribes. The Court affirmed that interpretation in its 1898 Wong Kim Ark decision.
Five of the six justices who voted to strike down Trump’s executive order ending birthright citizenship last week did so on constitutional grounds.1 Yet we live in an age of optional realities, so the president, perhaps not understanding how the Constitution works, posted that Republicans could “easily” reverse the Supreme Court’s decision “through Legislation. . . . No long and unwieldy Constitutional Amendment is necessary!” Speaker Mike Johnson, who may understand how the Constitution works but is required by his Trump servitude to pretend otherwise, said that he was very disappointed in the ruling and that “we’ll have to deal with it as Congress.”
That’s not how this works. Once the Supreme Court rules on the constitutionality of a matter, that’s the final word. It takes it out of the hands of the elected legislatures. Remember all the hullabaloo about Roe v. Wade? You can look it up. The Court could change its mind in future years (as it did in the Dobbs decision), or Congress and the states could amend the Constitution. But ordinary legislation? No.
BY REAFFIRMING BIRTHRIGHT CITIZENSHIP, the Court upheld a pillar of equality in America. We are not guaranteed equality of outcomes, but we are all equal citizens. That is part of what the Revolutionary War achieved. It overturned centuries of deference, subordination, and caste to create a new republic based on equality. While it’s true that only land-owning white males were initially counted for voting, the ideas the revolution spawned made the extension of rights almost inevitable. As the late historian Gordon Wood put it:
Equality was in fact the most radical and most powerful ideological force let loose in the Revolution. . . . Once invoked, the idea of equality could not be stopped, and it tore through American society and culture with awesome power. It became what Herman Melville called “the great God absolute! The centre and circumference of all democracy!”
Before the revolution, students were instructed in how to bow to upperclassmen and professors, church pews were assigned “on the basis of family heads’ age and social position,” and land was inherited by primogeniture. Post-revolution, all of that changed. Hand-shaking, between men on equal footing, replaced bowing. Cap-doffing went out of fashion, and many other signifiers of rank and position were eliminated. The Constitution decreed that, “No Title of Nobility shall be granted by the United States” nor by any state.
Birthright citizenship is a constitutive part of this democratic philosophy.
Think about what the United States without birthright citizenship would look like. What is the bedrock upon which our citizenship would rest? Would it be race, religion, ethnic background, family history, wealth, or some other criterion? JD Vance is already flirting with hierarchies of Americanness. He has referred often to the seven generations of his ancestors who are buried in Kentucky. “Now that’s not just an idea, my friends,” he insists, “that is a homeland.”
Vance adds that he looks forward to resting there himself when his time comes, as will his children. But his children are the product of a marriage between himself and the daughter of recent immigrants. Her ancestors are buried in India. Is that their “homeland”? Are his children less American than he?
Abraham Lincoln would like a word. In a July 10, 1858 speech, he said:
We have besides these men—descended by blood from our ancestors—among us perhaps half our people who are not descendants at all of these men, they are men who have come from Europe—German, Irish, French and Scandinavian—men that have come from Europe themselves, or whose ancestors have come hither and settled here, finding themselves our equals in all things. If they look back through this history to trace their connection with those days by blood, they find they have none, they cannot carry themselves back into that glorious epoch and make themselves feel that they are part of us, but when they look through that old Declaration of Independence they find that those old men say that “We hold these truths to be self-evident, that all men are created equal,” and then they feel that that moral sentiment taught in that day evidences their relation to those men, that it is the father of all moral principle in them, and that they have a right to claim it as though they were blood of the blood, and flesh of the flesh of the men who wrote that Declaration, and so they are. That is the electric cord in that Declaration that links the hearts of patriotic and liberty-loving men together, that will link those patriotic hearts as long as the love of freedom exists in the minds of men throughout the world. [Emphasis added.]
The Stephen Millers and Tucker Carlsons of the world are not Lincolnites. They emphatically endorse exclusive citizenship. Last year, Carlson hosted a Blaze Media figure who touted the superiority of “Heritage Americans,” i.e., those who can trace their ancestry back to the Civil War. America, the guest claimed, is not “a collection of abstract things agreed to in some social contract,” but a particular ethnocultural group that possesses the “Anglo-Protestant spirit” and “a tie to history and to the land. If you change the people, you change the culture.” Carlson agreed.
If we were to confine citizenship to those who can trace their ancestry back to the Civil War, we would disenfranchise tens of millions, including the families of Antonin Scalia, Frank Sinatra, Jonas Salk, Barack Obama, and, yes, Donald Trump, not to mention Sergey Brin, Elon Musk, Marco Rubio, Ted Cruz, Steve Jobs, Andrew Grove, and so many others.
As Justice Horace Gray put it in the majority decision in Wong Kim Ark:
To hold that the Fourteenth Amendment of the Constitution excludes from citizenship the children, born in the United States, of citizens or subjects of other countries would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage who have always been considered and treated as citizens of the United States.
Does this spirit require that we open our borders to all comers? Obviously not. Does it mean we must tolerate “birth tourism”? That point—raised in oral argument by the government’s lawyer, D. John Sauer—is less than compelling. Sauer claimed that birthright citizenship “has spawned a sprawling industry of birth tourism as uncounted thousands of foreigners from potentially hostile nations have flocked to give birth in the United States in recent decades, creating a whole generation of American citizens abroad with no meaningful ties to the United States.” But when pressed by Chief Justice Roberts about how big a problem this is, Sauer admitted that “No one knows for sure.” Okay, then.
Do immigrants know that once they have a child in the United States, that child is a U.S. citizen? Of course. But has this given rise to a flood of pregnant women at ports of entry? No. The Niskanen Institute examined the Center for Immigration Studies’ widely cited estimate of 33,000 births to tourists per year and found it completely wrong. The CIS, to its credit, issued a retraction. Niskanen estimates that the true number may be closer to zero. But even the inflated CIS estimates would yield less than 1 percent of births, and there are border controls and other methods short of changing the Constitution (or other proposals peddled by MAGA influencers) that can reduce that number.
THERE IS NOTHING NOVEL about xenophobia in America, but it has always been outweighed by our dedication to the idea of America as a “shining city on a hill.” That gets expressed in both our openness to immigrants and our unstinting grant of citizenship to those born here. The xenophobes object that birthright citizenship is rare in the world, which is true, though it’s not true that we are alone in this policy. Several Latin American countries also grant birthright citizenship.
But that rare openness to newcomers is one reason why America has been so much more successful in assimilating immigrants than other nations. As Ronald Reagan said in 1989: “We lead the world because, unique among nations, we draw our . . . strength from every country and every corner of the world. And by doing so we continuously renew and enrich our nation.”
From the very beginning, we were a multiethnic, multireligious society, bound by place, yes, but much more by commitment to liberty and democracy—to the words and ideals spelled out in the Declaration and the Constitution. Even in the earliest days of the republic, America was composed of the descendants of English, French, German, Scandinavian, African, Dutch, Scottish, Irish, Swedish, Finnish, Jewish, Swiss, and Native Americans. At the time of the revolution, there were whole swaths of Pennsylvania in which only German was spoken. (Frankly, Benjamin Franklin was quite ungracious about it, though he later softened.)
Uniting disparate people into a cohesive whole is not natural. Look around the globe. Ethnic, racial, and religious conflict is the way of the world. Our ability to transcend those differences is one of the triumphs of our republic. As we look ahead to that celebration fifty years from now, let us hope that Trump v. Barbara restores essential ballast to the hull of our storm-tossed ship of state.
The opinion was supported by six justices, but one of the six—Justice Brett Kavanaugh—joined with the majority based on statutory interpretation, not on Fourteenth Amendment grounds.
Democratic Socialists are not scary, they are supporting FDR’s New Deal.
Which has been an anathema to Conservatives since Goldwater and Reagan, who had the bright idea of concentrating wealth and power to the few.
This is the scary part.
“We must make our choice. We may have democracy, or we may have wealth concentrated in the hands of a few, but we can’t have both.”
Supreme Court Justice Louis Brandeis
The "socialist shambles"? 😂