Birthright Citizenship

I suppose Trump has done us at least one favor and that's to make us more aware of the Constitution, not that he's ever read it or at least understood it. His shoot-from-the-hip attitude reflects what Rogers Stone noted about "people involved in immediate decision making are very dependent on the universe of ideas around them. They reach for ideas thinking they're going to be useful for them." In other words, original thought is rare among politicians.

Trey Popp, in his profile about Rogers Stone and the Birthright controversy*, also quotes John Maynard Keynes: "Practical men who believe themselves to be quite exempt from any intellectual influence, are usually the slaves of some defunct economist. Madmen in authority, who hear voices in the air, are distilling their frenzy from some academic scribbler of a few years back."

Stone, now a self-described far left liberal, educated at Harvard and now teaching at Penn, started out in college a supporter of Goldwater but who was repelled by his experience with Republican back-room legislators where he worked as a clerk and page in Springfield, Illinois. They would indulge in drinking and scurrilous racial epithets and teach how to play dirty tricks on their political opponents. "That's when I began to freak out."

He became intrigued by the debate over the nature of government: Locke v civic republicanism, and he started exploring how "citizenship had been characterized in federal statutes." Instead of finding an uplifting vision of citizenship, he discovered that "American law had long been shot through with second-class citizenship, denying personal liberties and opportunities for political participation to most of the adult population based on race, ethnicity, gender, and even religion."

" 'Against liberal and democratic republican views describing citizenship as a human creation that ought to rest on the consent of all involved,' they assigned (or withheld) political rights on the basis of inalterable characteristics like race, gender, and the religion into which people were born."

Stone began to see consent as the key Lockean sine qua non of a political society and that the existing community should also give its consent. That duality creates an inate tension reflected in the Dred Scott decision in which Taney argued blacks could never be citizens because they did not have the consent of those states who were party to the Constitution. The 14th Amendment was designed to rectify that deficiency.

The phrase causing current disputation is "subject to the jurisdiction of." It was impossible to know what the authors of that section thought of an unauthorized immigrant since immigration was not even regulated until 1875, a decade after ratification of the 14th. The record was clear however with regard to two other groups: Native Americans (for tribe sovereignty and treaty reasons) and the children of foreign diplomats from whom citizenship was withheld. (That issue for Native Americans was rectified in 1924 with the Snyder Act.) During debates some legislators feared that citizenship would be conveyed to races they didn't like, including "Chinese, Mongols, and Gypsies."

The question presented so viciously by Trump but thoughtfully by Stone is what about those whose presence "contravenes American law." Is confirmation of citizenship on those here without permission incompatible with democratic institutions? Note that United States v Wong Kim Ark, the decision in 1898 that overturned a law preventing Chinese immigrants from becoming citizens applied to people who had consent to be here.

Ironically, Stone believes that we need higher levels of immigration and that the children of undocumented aliens deserve "access to citizenship." But, and a big but, Stone argues that Congress needs to be the arbiter of who qualifies for that citizenship be it birthright or otherwise. (Trump's suggestion he could do it with executive order is just another example of his ignorance.)

Unfortunately, to Stone's dismay, his ideas put forth with his coauthor Schuck in 1985, Citizenship Without Consent, were adopted in 1993 by California Republican Elton Gallegly who introduced a bill and amendment in Congress that would restrict "birthright citizenship to the children of mothers (but not the fathers) with citizen or legal-resident status." Similar bills have been introduced in every session since. It would seem to me that their failure each time would indicate some form of consent for the current situation.

Smith is not happy. As with most things, unintended consequences often mar otherwise good intentions. "The [Stone's] argument was used more persistently and prominently by nativist political forces than I ever anticipated. And that has been a shadow over my work in life."

In the end, Stone says, “What you want,” he says, “is to have as democratic a process of defining people-hood as possible, and to push within that democratic politics to make the choices as inclusive and egalitarian as possible, so that that definition of who we the people are may expand over time—but expand in a way that is sustainable because people have agreed to it, and it hasn’t been imposed on them.” The word "imposed" in this context bothers me not a little. A structure that has been in place and interpreted in a particular way for more than one hundred years would hardly constituted an imposition but much more an acceptance.

Smith would seem to be of similar mind. "In a 2008 article in Penn’s Journal of Constitutional Law, Smith made a case that Congress had effectively expressed the electorate’s will regarding birthright citizenship; the repeated and conclusive failure of 15 (now 25) years’ worth of restrictionist bills amounted to a clear expression that Americans, through their elected representatives, have consented to reading the Fourteenth Amendment as guaranteeing birthright citizenship to children of all aliens born on American soil."** Here, here.

*Popp, Trey. "Who is America?" The Pennsylvania Gazette Nov/Dec 2018, pp 33-41. http://thepenngazette.com/who-is-america/#comment-7721

**https://scholarship.law.upenn.edu/jcl/vol11/iss5/6/