Posted on July 25, 2018

Birthright Citizenship: A Response to My Critics

Michael Anton, Claremont Review of Books, July 22, 2018

I expected the reaction to a recent op-ed I published calling for the end of birthright citizenship to be cantankerous. I even expected it to be hysterical — from the Left. I did not expect self-described “conservatives” to be just as hysterical as the Left, and to use precisely the same terms. “Nativist.” “Xenophobe.” “Bigot.” “Racist.” “White nationalist.” “White supremacist.”

One point I’ve been making for a while is that one faction of “conservatism” — let’s call it the anti-Trump wing, although the phenomenon long predates Trump — sounds and acts with every passing year more like a “conservative” subdivision of the Left. Like the Left, they don’t want to debate; they want to call those they disagree with evil. For what are those epithets supposed to mean, if not “evil”?

Whether or not to have birthright citizenship for the children of noncitizens is one such fundamentally political question. But like so many other political questions, this one is ruled out of bounds by scholars, lawyers, experts, pundits, and professional moralists.

The American people did not willingly, knowingly, or politically adopt birthright citizenship. They were maneuvered into it by the Left and by the Left-allied judiciary. They’ve never debated it or voted on it. They’ve simply been told that it’s required by the Constitution.

Polling shows that a sizable number of Americans — though not a majority — support ending birthright citizenship. Were the nation to hold an honest debate, those numbers might rise (indeed, I’m confident they would). Of course, that’s precisely what the liberals and their allies on the “conservative Left” fear. It’s not only their legal arguments that are weak; their political arguments are even weaker. Since they know they would lose the debate, they are desperate not to have it. Which is why they demonize anyone who tries to raise it.


The Original Purpose of the 14th Amendment

Perhaps one reason people are so confused about the meaning of the 14th Amendment is because they have forgotten its fundamental purpose, and the context of the debate.

The purpose of the 14th Amendment was to settle forever the question of the citizenship status of freed slaves and of other free blacks then living in America. That was also the core purpose of the Civil Rights Act of 1866. But some who wanted to continue to deny citizenship to free blacks cited the Dred Scott decision as superseding that Act. A statute was deemed to be insufficient, whereas a Constitutional Amendment would supersede all that came before.

Senator Howard says of the amendment’s purpose that it:

settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.

Surely Senator Howard did not refer to the citizenship of the children of foreign diplomats as a “great question.” Large or small, that question had not only not “long been a great desideratum in the jurisprudence and legislation of this country,” it had hardly come up at all.

The bedeviling citizenship question of the age was how to treat freedmen. The “great desideratum” clearly refers to the Dred Scott decision, its fallout that helped bring on the Civil War, and the ensuing post-bellum controversy over whether that ruling allowed southern states to deny citizenship to free blacks. The 14thAmendment ends the controversy. Dred Scott is overturned. Federal citizenship supersedes and determines state citizenship. No state may deny citizenship to blacks, who were unquestionably “born … in the United States” and “subject to the jurisdiction thereof.” (For the quote-checkers, the ellipsed words are “or naturalized,” which clearly do not apply to freed slaves.)

In the debate, we find much discussion of Indians because the original draft of the amendment left their status unclear. That original draft did not include the clause “subject to the jurisdiction thereof.” It came to be added because some argued that without that clause, the amendment would automatically grant citizenship to all Indians, who were unquestionably “born in the United States” — that is, in the physical territory of the United States — but who were considered non-citizens because their allegiance was to their tribes and not to the United States. The clause was added to equate Indians with foreigners, who were already understood to be non-citizens. Indeed, inherent in the very concept of citizenship is the fact foreigners are not citizens!

There is nothing whatsoever in the debate that explicitly states, implies, or contextually suggests that the framers of the 14th Amendment meant to grant birthright citizenship to the children of illegal immigrants. They don’t talk about illegal immigration much because on that question, there was no need for debate. The children of persons “subject to any foreign power,” “owing allegiance to anybody else” were — all agreed and the law already declared — not citizens.

When they do talk about immigration — particularly Senator Cowan — they express concern that the amendment be carefully drafted so as not to allow or provoke unchecked immigration by offering too broad a definition of citizenship. (As an aside, I note that Senator Cowen’s long speech is quite triggering to our ears in 2018. It’s amusing to be called “racist” by people whose arguments rest on the views of men whose words I blush to read.)


Current and Past Birthright Citizens

I have been accused of wanting to strip citizenship from those already born to illegal immigrants and thus already granted citizenship. Of course, I said nothing of the kind, nor does my argument demand any such conclusion. We may grant that our current understanding of birthright citizenship is a mistake and correct that mistake without retroactively stripping anyone of citizenship. Indeed, I believe that the American people in their generosity would support exactly such a measure. Correct the issue going forward. Make clear to the world that the United States will no longer grant birthright citizenship to the children of non-citizen illegal immigrants, birth tourists, or people here on temporary work or student visas. The citizenship of those already born would forever be honored — even enshrined into law if necessary.

This is a reasonable way forward. The alternative — illegal immigration, population growth, and all their attendant problems forever — is not sustainable. Nor is it — once again — in the interests of the current citizens of the United States, including those born to illegal immigrant parents.

Birthright citizenship — as I and others have argued — is a magnet for illegal immigration, an ongoing problem that worsens many of our other problems. The longer we continue the practice, the more illegal immigration we will get, with all its ensuing effects. As I have argued elsewhere, the United States does not need more people. We need to do a better job meeting the needs of the citizens we already have.


It’s no wonder, then, that only around 30 countries out of nearly 200 practice birthright citizenship. The highest accounting that I have seen says 33. There are 197 countries in the world (193 UN members, two observers, and two non-members). Thus 83% of the world’s nations do not allow birthright citizenship. Those countries that do have a combined population of 958 million (in all cases, rounding estimates up in order not to be accused of fudging the numbers in my direction). According to the UN, the world population is today 7.6 billion. Our “conservatives” insist that opposition to birthright citizenship is “nativist, xenophobic, bigoted, racist, white nationalist, white supremacist” and more. This means that 6.642 billion of the world’s people (give or take) must also be “nativist, xenophobic, bigoted, racist, white nationalist, and white supremacist.” The latter two would truly be something, given how few of those people are white.

Clarity Over Agreement

It’s an ugly thing to hear and read the worst of these epithets from ostensible allies. But of course, those hurling these calumnies are in no sense allies. That was clear in 2016, if not before, and it’s even clearer now. Clarity is good. Let’s all make clear where we stand on the issues of the day and in relation with others in the big tent we used to call “the Conservative Movement.”

It’s clear to me that those who use this kind of language are leftists — leftists in rhetoric and in philosophy. These epithets were hurled in response to a column that mentions race only in the context of stating that it was necessary and just that the United States firmly declare that freed black slaves were citizens.

A noted scholar once remarked, about the political swirl of the 1960s and ’70s, that he was tired of being fired upon by his friends. It made more sense to arrange things so that the people shooting at him were his enemies. Some kind of intellectual realignment is similarly necessary today. Those who nominally gather together in the big tent cannot continue to do so, however loosely, on current terms. Continually being knifed in the back by ostensible allies is not a sustainable situation.

I see three possibilities. First, the knifers could stop being fratricidal, stop being leftist and learn something about the true basis for conservative principles, so that they stop becoming hysterical over silly errors arising from their own false understanding. Second, one side or the other will take control of the tent and kick the others out. Third, all this continued acrimony might destroy the tent, causing us all to scatter and regroup in more stable and like-minded coalitions.