Let’s Talk About Birthright Citizenship

On Wednesday, I spoke to the Shepherds Center at North United Methodist Church. They had asked for a discussion of birthright citizenship, a status which is currently under attack by Trump (along with the rest of the Constitution). Here’s what I said. (A bit longer than usual–sorry.)

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I’ve been asked to speak about birthright citizenship, and Donald Trump’s effort to eliminate it. Let me just begin with a bit of history, and then consider what would happen if our mad and racist would-be King were to be successful.

As many of you know, in 1857, the U.S. Supreme Court issued a decision in the infamous case of Dred Scott v. Sandford. The court ruled that Scott, an escaped slave who was suing for his freedom, was not a citizen because he was of African descent. According to the decision written by Chief Justice Roger Taney, no person of African descent could be a citizen, even if they had been born in the United States.

It took a civil war to change that conclusion, but in 1868, the Fourteenth Amendment was ratified, defining citizenship as applying to “All persons born or naturalized in the United States, and subject to the jurisdiction thereof.”

The clear language of the Amendment should have foreclosed debate, but it 1898, the 14th Amendment’s definition of citizenship was challenged in a case involving a man named Wong Kim Ark.

Wong had been born on American soil in 1873; he was the son of Chinese immigrants. That was well before the U.S. passed the Chinese Exclusion Act, which prohibited most Chinese immigration and, by extension, the naturalization of Chinese citizens–an Act that was one of several historical eruptions of anti-immigration hostility. Since Wong’s parents weren’t citizens, his status was considered unclear, and as a result, he was denied reentry into the U.S. after visiting China.

Wong waited on a ship in San Francisco harbor for months as his attorney pursued his case. The Department of Justice opposed him, taking the position that people of Chinese descent weren’t citizens, but when the case reached the Supreme Court, Wong won.

Justice Horace Gray wrote the majority opinion, and it’s worth quoting part of it. Gray wrote “The Fourteenth Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. 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.”

That case became binding precedent and has operated to defend the birthright citizenship rights of other Americans—even including Japanese Americans during WWII—despite the shameful treatment of those citizens.

Bottom line: birthright citizenship is guaranteed by the plain language of the 14th Amendment and subsequent case law, and I doubt that even our deeply corrupt Supreme Court majority will find a way around the clarity of that language and those precedents.

But what would happen if they did—if somehow, the Court found a way to evade the plain language of both the Amendment and the Court’s own, unambiguous precedents? That question was recently examined by the Niskanen Center. The Center describes its mission as the promotion of policies that advance prosperity, opportunity, and human flourishing, guided by the belief that a free market and an effective government are mutually dependent.

I have found the research published by the Center to be both intellectually honest and uncommonly insightful—Niskanen advocates for an adequate social safety net and for the provision of essential public goods, while also supporting laws that foster market competition in areas where markets are appropriate. The Center is firmly committed to liberal democracy and an open society.

The Center’s researchers looked at the probable results of overturning birthright citizenship, and they identified three major ones:  ending birthright citizenship would erode America’s current demographic advantage over rival powers; it would endanger the advantage we have enjoyed in internal assimilation and stability; and it would introduce an unnecessary and protracted distraction from building an immigration system that could guarantee continued American prosperity.

Let’s look at each of these predictions.

We know that the world population is aging: According to U.N., the majority of the world’s population now lives in countries in which the fertility rate is below replacement level. By 2050, deaths will exceed births in more than 130 countries.

Thanks to immigration, the United States is an outlier to that demographic fact. In addition to having higher fertility rates than nearly all other developed countries, America’s “demographic exceptionalism” is tied to what has been our robust immigration. As a result, the U.S. is the only major power currently projected to maintain both population and labor force growth through the mid-century. Meanwhile, both China and Russia are experiencing population decline and are rapidly aging societies.

Ending birthright citizenship would also directly hurt American competitiveness. As Niskanen researchers point out, throwing a quarter of a million children into a position of legal uncertainty each year—which is what reversing birthright citizenship would do– would have a hugely negative effect on America’s strength and prosperity. If the children leave with their parents, which is what the architects of this inhumane policy intend, we’ll struggle to fill jobs—especially those requiring manual labor– and we’ll also struggle to fund Social Security with fewer workers.

If, instead, these children stay in the United States, they’d be treated by the legal system and by large swaths of society as foreigners in the only country they’d ever known, a situation that would challenge the domestic stability that has resulted from our history of comparatively smooth cultural assimilation. That ability to assimilate large numbers of newcomers and their descendants, to turn them into proud Americans, has been a considerable source of America’s strength and stability.

Despite the current hostility of the Trump administration and the MAGA White Supremacists who want to expel Black and Brown folks and limit immigration to White South Africans, America has had a far better history with immigrants than countries like China and Russia. America actually has had a very good track record of assimilating a wide variety of minorities, and that success has been due in large part to the ideals of American citizenship—ideals that include policies like birthright citizenship. And we need to remember that, for children of immigrant parents, birthright citizenship not only validates their American identity, but also imposes patriotic responsibilities on them. Those children haven’t just voted and served on juries—they’ve fought and died in America’s wars.

Let me just quote two of the concluding paragraphs of the Niskanen paper, describing the likely consequences of abandoning birthright citizenship.

“Many of the children born to illegal immigrants may also be temporarily rendered stateless. Some countries such as India do not automatically grant citizenship to the children of citizens born abroad. Given how politically polarizing other policies involving immigrant children, such as family separation and Deferred Action for Childhood Arrivals (DACA), have been, artificially creating a population of potentially hundreds of thousands of stateless children living within the U.S. would become a poison pill in American politics….

The net effect of repealing birthright citizenship would be a prolonged state of chaos in our domestic politics and our immigration system. Doing so would squander key advantages we have over rivals who are gaining ground on the world stage and distract us from being able to build an immigration system that prioritizes the talent we need to remain competitive by miring us in decades of legal challenges, ambiguity, and disunity. As is often the case, those who are currently seeking to suddenly impose mass changes to the social fabric will find that the status quo has functioned well for a reason.”

A few years ago, I looked into the issue of immigration—both legal and not– for a speech to the Lafayette ACLU, and was struck with the sheer extent to which the U.S. has benefitted from it, especially when we look at innovation and economic growth.

The Partnership for a New American Economy issued a research report back in 2010 and found that more than 40% of Fortune 500 companies had been founded by immigrants or their children. Collectively, companies founded by immigrants and their children employed more than 10 million people worldwide; and the revenue they generated was greater than the GDP of every country in the world except the U.S., China and Japan.

The names of those companies are familiar to most of us: Intel, EBay, Google, Tesla, Apple, You Tube, Pay Pal, Yahoo, Nordstrom, Comcast, Proctor and Gamble, Elizabeth Arden, Huffington Post. A 2012 report found that immigrants are more than twice as likely to start a business as native-born Americans. As of 2011, one in ten Americans was employed by an immigrant-run business.

On economic grounds alone, then, we should welcome immigrants. But not only do we threaten undocumented persons, we make it incredibly difficult to come here legally. If there is one fact that everyone admits, it is the need to reform a totally dysfunctional and inhumane system. Based upon logic and the national interest, it’s hard to understand why Congress has been unwilling or unable to craft reasonable legislation. Of course, logic and the national interest have been missing from Washington for some time.

The bottom line: repealing birthright citizenship would be stupid—it would be a self-inflicted wound, making America less competitive, less stable and less prosperous. But there is also a moral imperative at stake here.

Those of you who attend these Shepherd Center events recognize what the MAGA bigots clearly do not– the moral and ethical dimensions of this effort to define anyone who isn’t a White Christian as “Other.” The basis of the MAGA movement and its support for the Trump administration is racism, misogyny and White Christian nationalism—with a hefty side helping of anti-Semitism. The effort to overturn birthright citizenship is part and parcel of that larger effort to remake America into a “blood and soil” country—a version of the Third Reich. We cannot let that happen.

Thank you.