Birthright Citizenship

I read a disturbing opinion piece today from George Will in which he calls for the US to remove birthright citizenship. In Will's view, altering the laws so that one's birth in the US does not automatically confer citizenship would accomplish two (in his view) admirable goals.

First, it would correct what he sees as a pervasive misreading of the 14th Amendment, which reads in part, "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." The key here, for Will, is the middle phrase, "and subject to the jurisdiction thereof." This phrase, according to Will, conveys the authors' intention that birthright citizenship only affect the children of people over whom the US has proper authority. Native Americans, for example, were originally not understood as covered by this clause in that their allegiance was not directly to the US government (this changed in 1924--thanks, Wikipedia!).

Why does Will think correcting (what he sees as) a misreading like this is so important?

The answer lies in the second and greater benefit he sees in his proposal. Removing birthright citizenship (or, as it's known, jus soli) would, Will argues, nearly solve the problem of illegal immigration in the US. Will cites congressional testimony (without citation) that alleges that up to ten percent of all births in the nation are to parents who are in the country illegally. Because these children are by birth US citizens, the question of what to do with or to their undocumented parents becomes quite difficult to address.

In the comments, the supporters of striking jus soli (and there are many of them represented in the comments) mention a variety of other countries (e.g., Canada, the UK, Australia) who have rescinded birthright citizenship. They ask why the US would cling to what they consider an ill-conceived and outdated criterion for granting the rights of citizenship.

The idea of removing birthright citizenship makes me queasy. I must admit my initial reaction was doubtless colored by the fact that I heard it from George Will, whose opinions I often find unpalatable (but who generally makes a cogent argument for them). All my talk and writing about conversion and proselytization, however, pushes me to question my own prejudices. So--prejudice aside, does removing jus soli make sense? Is Will making a good argument?

He's right, on one level. Though I find the anti-immigrant epithet "anchor baby" offensive, the problem it names--what to do when a parent here illegally has a baby on US soil?--does present a conundrum. Rescinding birthright citizenship would take an Alexandrine sword to that Gordion knot of a problem.

One wonders, then, exactly how citizenship would be conferred if not by birth. The alternative to jus soli, historically, is jus sanguinis--citizenship as an attribute of blood. If your parents are US citizens prior to your birth, then you are. I can see how such an alternative would appear attractive to a number of groups. People strongly opposed to illegal immigration (and to the people who immigrate illegally) would be able to push for a harsher (though still impractical) policy of deportation to rid the US of such groups.

Further to the right, nativist groups (I would include paleo-conservatives like Patrick Buchanan here) would find in jus sanguinis an effective bulwark against what they see as the dilution of US culture. Given that, as of this year, the majority of babies born in the US will be non-white, people who feel strongly that US is culturally and historically Anglo-Saxon (a belief not, they would insist, the same as outright racism) have reason to be worried. If as Will asserts a significant percentage of those non-white babies are being born to undocumented persons, then jus sanguinis would allow whites to maintain a majority for a bit longer.

Of course, Will does not tap into such rationales himself. But it's difficult for me to see the right-wing push to abolish jus soli as occurring independently of a rising nativist sentiment in which "native" means "mostly white, with a certain acceptable percentage of blacks and other races."

Thus my queasiness with the anti-birthright citizenship movement. It's not that I think that there's anything magical about US soil that grants special powers to those born on it. Citizenship is a discursive construct, not an essential attribute. Tying it to birth or to blood (or, as many countries do, and as the US to a certain extent does, a combination of both) doesn't functionally change what citizenship confers. The question at stake here isn't definitional-- what is citizenship, really? what does it mean to be a citizen? Citizenship, however it is determined, remains as ever the right to have rights within a particular polity.

No, the birthright debate raises a basically political question: Who counts? And beneath that--how does other people's counting affect how I am counted? Behind calls to limit citizenship hides a tightfistedness about the rights that citizenship grants access to and a fear that giving those rights to others spreads liberty too thinly. Now, I must concede that this proprietary attitude towards citizenship rights has a practical element: the state has only so many resources. Ministering to everyone within its borders regardless of status means that everyone gets a little less.

True enough. But could it be that I already enjoy too much? Through no effort or agency of my own, I enjoy a whole host of rights actively denied to others--all by accident of birth, blood, location, history, culture, language--whatever. It bugs me, therefore, when nativist advocates and their more moderate allies paint citizenship debates as instances of righting a criminal injustice. Was it illegal for this or that person to flee economic disenfranchisement by crossing the border illicitly, circumventing the proper (though lengthy, uncertain, and expensive) channels? Yes.

But such illegality is an order of magnitude different than a criminal act like robbery. The latter implies taking from me something I have worked for and earned a right to have. I did not work for my citizenship. My right to be a citizen flows from something as arbitrary as my birthplace and my parents' status (parents who also did nothing to earn their citizenship). If we're asking who worked harder to earn access to the rights of citizenship, my bet's on the people who risked life and limb to get into this country and make a better life for themselves and their families. Where's the justice in punishing people who work so hard for something most of us US citizens blissfully take for granted? Moreover--where's the justice in punishing the children of such people?

It may be, at the end of the day, that limitations on citizenship are necessary given limited resources. But let's not fool ourselves that these limitations flow from some higher ethic of citizenship. They flow from the need to keep US as the ones who count.

For that reason, high-minded calls to restrict citizenship rights--or any of the blessings of liberty--strike me as the worst kind of selfishness.

More later,

JF