The Supreme Court’s June 27 Trump v. CASA et al. decision about birthright citizenship turned on a legal technicality: Could one federal district judge in one court in one state block a presidential policy for the entire country? To that question, the Court said “no.” On the merits of whether Trump’s effort to dial back what “birthright citizenship” means more broadly, the Court left that question for another day.
The predictable outpouring of opposition followed in social media. One post struck me: “Doesn’t the end of birthright citizenship mean the end of citizenship itself?”
Treating that question as real rather than rhetorical, my answer is no.
Most countries in the world do not confer citizenship by birth. They and their citizenship seem to have survived just fine.
There are two ways most countries confer citizenship: jus soli and jus sanguinis, “the law of soil” and “the law of blood.”
Jus soli means being born on the “soil” or territory of a jurisdiction makes one its citizen. For shorthand purposes, that is what American “birthright” citizenship has been treated to mean: Be born in the United States and you’re a citizen, even if you just happened to come into the world during a winter storm flight layover in Boston, never having had nor ever again intending any connection to the United States. I say “shorthand” because the 14th Amendment, which is the crux of this debate, speaks of being born “and subject to the jurisdiction of” the United States as what makes one a citizen. A diplomat can have a baby in Washington, but the child doesn’t necessarily acquire citizenship, because the diplomat is not necessarily “subject to the jurisdiction of” the United States. President Trump wants to probe the boundaries of that phrase.
Jus sanguinis means being born of the “blood” of somebody who is a citizen. For most European countries, for example, you are a citizen if your mother or father was a citizen. Citizenship in this model functions something like an inheritance or a “political gene” passed from one’s forebears (e.g., some countries will grant citizenship if a grandparent came from there).
The United States also practices a version of jus sanguinis. An American child born abroad to an American parent or parents may be a U.S. citizen under certain conditions that primarily affect the parent — e.g., whether that person was a “birthright” or inherited citizen, in some cases how long he lived in the United States, etc. In other words, it’s complicated. But when the United States confers citizenship through relationship, it also generally looks for some relationship to the United States.
If I had to compare “birthright” to jus sanguinis citizenship transmission, I’d summarize them as follows: Being “born” here makes the baby the anchor, whereas jus sanguinis makes the parent the anchor.
That’s a basic difference. It’s at the heart of what to do with illegal aliens who remain in the United States illegally but have a citizen baby while here. It will be an issue in the future for countries engaged in birth and/or surrogacy tourism to the United States. (Yes, foreigners come here to birth their babies.) Think China, especially under the former “one child policy.” One way China enforced that policy was denying legal registration to unauthorized additional kids — insurance, passports, etc. But a kid coming with a U.S. passport was in some sense “privileged.” He could even attend an international school if his parents could afford it. And in 21 years, he might file an immigrant petition to the United States from Mom and Dad. President Trump sees a policy of “anchor babies” providing a perverse incentive to illegal immigration and, therefore, wants to eliminate it.
Yes, we love to talk about America as an “immigrant” country and read the “birthright” provisions of the 14th Amendment liberally. But let’s consider some historical facts.
- The 14th Amendment’s “birth” rule was written to eliminate any possibility that freed black slaves born in this country could be denied citizenship.
- There was a time when most “Americans” were immigrants or within a generation or so of the immigrant experience — e.g., in the early Republic. That’s not true today.
- Immigration policy is usually calibrated to national needs. Liberal immigration in the 19th century went hand-in-hand with a continent to be settled and the labor demands of an industrial revolution. Neither is the situation today. Frederick Jackson Turner said the frontier closed in 1890 — 135 years ago.
By the way, these ideas are not peculiarly American. When Clifford Sifton dispatched Canadian immigration agents to Eastern Europe in the same period, it wasn’t because he suddenly loved Slavs. Canada had a practical need: It was settling three big prairie provinces (Manitoba, Saskatchewan, Alberta) and needed experienced farmers. Canada’s large Ukrainian population was no accident; it was the result of its national need, not that of the “yearning masses” of the Ukrainian prairies.
Asking, therefore, whether previous models of immigration policy remain the best fit for America today seems legitimate. Rational debate, not sloganeering calculated to hide policy agendas (including protection of the status quo), best serves America’s common good.
Image via Pexels.