Monday, July 26, 2010

Yes to birthright citizenship

That's the topic of my Scripps Howard column with Ben Boychuk. My take:

What does the 14th Amendment really mean with regard to "birthright citizenship?" Tough to say. Even the men who wrote and passed the amendment in 1868 weren't in full agreement on that point.

The amendment says that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof" are citizens." But the legislative debate over that language was fierce - some senators argued it surely didn't mean that children of American Indians or gypsies or Chinese would be granted the same citizenship as white people.

Other senators - notably John Conness of California - believed otherwise.

"The children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens," Conness said.

The debate continues today. But birthright citizenship - a long American tradition - should continue.

Why? For one thing, it's a matter of simple humanity. Denying citizenship to a child born here would inevitably mean that millions of young people - after having lived here their entire lives, and thus American to the bone - would someday be deported to "home" countries and cultures alien to them. They would be paying a penalty for their parents' crimes. That's just cruel.

What's more, ending birthright citizenship could prove burdensome to all Americans. Other than your birth certificate-assuming you were born here-what proof do you possess that you're an American citizen? Until now, that is all that's been needed. The potential for bureaucratic mischief is enormous.

The people who want to end birthright citizenship would be in the business of telling many Americans they aren't really Americans after all. That would be ugly, divisive and unnecessary. There are better ways to address the issue of illegal immigration.

What I didn't say (for space reasons) is that for more than a century, Americans have lived under the common understanding that -- generally speaking -- to be born here is to be a citizen here. Anti-immigration crusaders who want to challenge that understanding of the 14th Amendment, it seems, are trying to remake American custom without remaking the American law it springs from. (There's no movement afoot, really, to amend the amendment -- only to reinterpret it.) Given continuing complaints from conservatives about "judicial activism," this seems a wee hypocritical.

In any case, the column brought me this e-mail from a Florida reader:

Since the squabble over Passports for the Iroquois LACROSSE TEAM. Would they be a separate nation, the Iroquois Nation and NOT US citizens (by birth) since they consider themselves NOT under the jurisdiction of the United States?

It would seem that since they feel they are not under the jurisdiction of the US according to treaty, they must APPLY for US citizenship.

Without going into details of the Iroquois passport dispute, I'll just note that the 14th Amendment was actually constructed to exclude American Indians from automatic citizenship -- if you delve into the debate that took place at the time, it's apparent that the arguments then against birthright citizenship in the 14th Amendment were explicitly racist -- but that the Indian Citizenship Act of 1924 means that American Indians do have that citizenship. If they want it.

In any case, I can imagine that the Iroquois and other native tribes might also be against a policy that lets the children and further descendants of European immigrants claim citizenship here. I can't say I'd blame them.


namefromthepast said...

By the way looking at the debate surrounding American Indian citizenship isn't "explicitly racist"

As Thomas Cooley noted in his treatise, "subject to the jurisdiction" of the United States "meant full and complete jurisdic­tion to which citizens are generally subject, and not any qualified and partial jurisdiction, such as may consist with allegiance to some other government."[14]

When the US was a sovereign nation this interpretation makes sense, your interpretation now probably makes sense.

I sense the true upshot of liberal "immigration reform" is this.

Fail to secure the borders then give citizenship to the world. Problem solved.

Joel said...

By the way looking at the debate surrounding American Indian citizenship isn't "explicitly racist"

I wasn't thinking of that -- although there was some racism during the original 14th Amendment debate regarding Indians -- so much as I was thinking about all the disparaging comments made at the time about blacks, gypsies, Chinese and others. There were lots of people in the Senate very worried in explicitly racist terms about the kinds of people who might become "American" under the amendment.

By the way, I don't know if you noticed the story today that has the numbers -- the Obama Administration has deported more illegal immigrants per year than any of its predecessors. It's not perfect, of course, but it can't be: Our immigration policy right now makes no sense. It is, in some sense, unenforceable.

namefromthepast said...

I didn't see the numbers but I don't doubt it. I haven't been real impressed with any administration on this issue.

I too am worried about who will become Americans-not because of race but loyalty. That was the context of the debate back then as it is now.

Too many times when confronted with what could really be a fantastic, meaningful debate people pull out the race card and succeed in just pissing people off.

I'm a conservative, not the least bit racist, and I simply disagree with the liberal agenda.

So maybe I was too touchy with your wording but it is a raw nerve.

Thoughtful debate is critical to coming to consensus on so many issues going forward but when backed in a corner I find liberals cry racism for lack of anything intelligent to say.

Joel said...

Name: We're talking about a 140-year-old debate here, so please believe me when I say that I'm not trying to tar anybody alive now with the brush of racism when I say that much of the 1868 debate about the 14th amendment was, indeed, racist. They actively reviled the Chinese and Gypsies, in particular, and were searching for a way to grant citizenship to former slaves without having to acknowledge citizenship for other "undesirable" races.

I don't want to drag out the "racist" card willy nilly. But neither do I want to avoid it when called for.