Duel Over Birthright Citizenship Misses the Mark

(Bloomberg Opinion) -- Michael Anton, a former national-security spokesman for President Donald Trump, has kicked off a debate about citizenship and immigration — if “debate” is the right word for an exchange that consists mostly of shouting.

In the Washington Post, Anton argued that we should end the longstanding practice of granting automatic citizenship to children who are born in the United States to illegal immigrants. The Constitution, he says, does not require it. Others then jumped forward to say that Anton is obviously wrong, and racist

The first sentence of the 14th Amendment reads, “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 debate turns on the meaning of “subject to the jurisdiction thereof.” 

For Anton and his allies, it excludes children who owe allegiance to a foreign power and therefore excludes the children of illegal immigrants. For the other side, it excludes only those who are not fully subject to American laws when they are here, such as the children of diplomats.

Nearly everyone involved in the dispute is very sure his views are right. 

Anton wrote that a constitutional scholar “has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment.” The essay to which Anton linked did not in fact allege, much less show, bad faith on the part of proponents of birthright citizenship. But the essay itself displays great confidence, explaining that it is “simply not true” that the Constitution commands birthright citizenship. And when you are convinced that no reasonable person can hold a view contrary to yours, it is a short step to thinking that anyone who claims to do so is dissembling. 

The certitude on the other side is equally impressive. Mandatory birthright citizenship is “the plain meaning" of the amendment, says one proponent, and it takes a “twisted reading” of it to deny that. James Ho, a lawyer who wrote a defense of birthright citizenship before becoming a federal judge, also claimed the amendment “plainly guaranteed” it.

The dueling certainties continue deep into the weeds. During the congressional debate over the amendment in 1866, Senator Jacob Howard said that automatic citizenship would include everyone born here except those “who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” 

For opponents of birthright citizenship, it’s obvious that Howard meant that children born in the U.S. could be “foreigners” even if their parents were not working in embassies. It’s so obvious that they have sometimes inserted “[or]” before “who belong” in order to clarify what they take to be Howard’s meaning. 

For the proponents, on the other hand, it is obvious that Howard meant “foreigners and aliens who belong to the families of ambassadors or foreign ministers” — and that Anton and Co. are deliberately distorting what he said.

The only thing that is obvious to me is that the amendment is not clear about the status of the children of illegal immigrants. 

Would it kill all these debaters to admit that “subject to the jurisdiction thereof” is a legal term of art, and that it does not have a simple meaning that is immediately accessible to every educated person of good will? Or to admit that since there were no illegal immigrants in the United States at the time the amendment was adopted, nobody involved in the debate was thinking about how to treat their children? That applying it to these children is therefore a tricky interpretive question? That Senator Howard’s comment was ambiguous?

In the latest issue of National Affairs, a conservative policy journal, scholars Peter Schuck and Rogers Smith make the case that the Constitution leaves birthright citizenship for the children of illegal immigrants up to Congress. They themselves favor higher legal immigration and “a generous amnesty for those now here illegally.” They think Congress should grant citizenship to children of illegal immigrants who live here and go to school through eighth grade.

I’m not sure who has the constitutional question right. But I think that the policy, whether or not the Constitution requires it, has more benefits than costs — and that we could leave it in place while improving that ratio.

Birthright citizenship reduces the number of effectively stateless people living among us; it especially reduces the number of people who are in this situation through no fault of their own. It makes it impossible for the situation to persist for generations.

On the flip side, it surely creates an incentive for some people to come here illegally. But it seems likely that other measures, such as making it mandatory for companies to verify the legal status of new hires, would do more than curtailing birthright citizenship to combat illegal immigration. The chance to participate in the American labor market appears to be the biggest magnet for illegal immigration. “Birth tourism” is by contrast an anecdotal phenomenon. To the extent we succeeded in turning down the force of that magnet, the number of children born to illegal immigrants in the U.S. would dwindle.

Our efforts against illegal immigration should focus on employers and not on newborns — and not on what we think we know about the debates of 1866, either.

This column does not necessarily reflect the opinion of the editorial board or Bloomberg LP and its owners.

Ramesh Ponnuru is a Bloomberg Opinion columnist. He is a senior editor at National Review, visiting fellow at the American Enterprise Institute and contributor to CBS News.

©2018 Bloomberg L.P.