President Trump announced his intent to end birthright citizenship via executive order last week in an interview with Axios. Consequently, an outpouring of constitutional analysis from both the left and the right commenced: Is birthright citizenship required by the Fourteenth Amendment? Or is it the result of a misreading of the law?
Many constitutional scholars, including Hillsdale College’s own Michael Anton and Associate Vice President Matthew Spalding, have spilled pages of ink defending their claim that birthright citizenship is not a mandate of the Constitution. But there remains a question few are asking: Is birthright citizenship a good idea? Does it better help the American people further the Constitution’s guarantee “to ensure the blessings of liberty to ourselves and our posterity?”
To present the constitutionalist argument against birthright citizenship in brief: Section I of the Fourteenth 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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.”
The clause in question is “subject to the jurisdiction thereof.” If birth alone is sufficient, these five words would be totally redundant and unnecessary to the text.
Likewise, “subject to the jurisdiction thereof” must not be confused with “subject to the laws.” Whereas a British visitor may be subject to our laws, like traffic signs and stoplights, he is not truly subject to American “jurisdiction” because his allegiance belongs to a foreign country.
The other constitutional argument pertains to the social compact theory of the American Founding itself: our Founders left behind the ancient feudal concept of “citizenship by soil,” arguing that citizenship demands consent on the part of the new citizen and the existing members of the social compact. At the same time, children born into this social compact, governed initially by their parents, maintain their natural right to withdraw consent and emigrate to any other country which will accept them.
The Fourteenth Amendment was written to enshrine the Civil Rights Act of 1866 and guarantee citizenship to freed former slaves. It was not written to provide citizenship to all born in the U.S., such as Indians, the children of foreign diplomats, visitors, etc.
In this sense, the children of illegal aliens cannot be considered part of the social compact because they imposed their presence on the American people without their consent. Birthright citizenship for illegal immigrants therefore breaks the terms of the social compact and suggests violating the law — the very terms of the social compact — will be rewarded with the privilege of citizenship.
The Supreme Court has never ruled directly on the question of whether or not the children of illegal immigrants are citizens. Even the one oft-referenced case of U.S. v. Kim Wong Ark dealt with the child of people here legally — a fact many newly minted “constitutionalists” on the left often fail to note.
But perhaps the most important question remains: Does birthright citizenship secure the interests of the American people? Is birthright citizenship a good idea?
The American people never consented to such a policy. Instead, it was imposed on them and came about long after the 14th Amendment was passed.
President Trump doesn’t seem to think birthright citizenship is prudent: It “costs our country billions of dollars and is very unfair to our citizens,” he tweeted. (Trump displayed incredible political deftness in waiting until the Supreme Court had a conservative majority before he announced his intentions.)
Birthright citizenship serves as a major incentive for illegal immigration and the related problems it brings, like drugs, crime, taxpayer costs, and more. Indeed, a new Center for Immigration Studies report found that in 2014 alone, illegal immigrants gave birth to 297,000 children who received birthright citizenship, or roughly 7.5 percent of all births that year. All of which became immediately eligible for government welfare. The total costs to the American taxpayer? A cool $2.4 billion.
Birthright citizenship is an imprudent policy inconsistent with the ideals of the American Founding. It is not in the interests of the American people. Trump would do well to end it.
Garrison Grisedale is a senior studying politics.