Close the Birthright Citizenship Loophole

The law is full of loopholes. If you do not first secure two witnesses, your last will and testament may not be valid. If a policeman fails in reading the Miranda warning, a criminal’s confession may be thrown out and kept away from the jury. And, through the lawbreaking and evasive maneuvers by their illegal alien parents, young children, through no merit (or choice) of their own, may end up with the very beneficial acquisition of U.S. citizenship.

Birthright citizenship began as an unintended consequence of the language of the 14th Amendment. This beneficent amendment was ratified in the wake of the Civil War to address the former Confederate states’ restrictive “black codes,” which limited the rights of the newly freed slaves. Such laws included provisions limiting the right to bear arms, to travel, to make contracts, and much else, often using roundabout maneuvers, such as racially neutral language that based rights on whether one’s grandparents had a particular right.

Thus, the amendment states broadly, “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 amendment goes on to protect all such citizens’ “privileges and immunities,” the right to “life, liberty, and property,” and “equal protection of the laws.”

In other words, this was not an immigration amendment, but rather a law aimed at addressing the particular obstacles that faced the recently freed slaves. While tortured readings of the 14th Amendment have also brought us such abominations as an abstract “right to privacy,” which in turn led to the right to abortion and gay marriage, on the question of citizenship, there is at least a debatable question arising from the text of the amendment itself.

What the Court Has (and Has Not) Said
The Supreme Court has addressed this question only infrequently, and then only over 100 years ago in the 
context of a U.S. born citizens of legal residents who were themselves subjects of China. In that case, the justices, lacking legislative guidance, concluded from the common law that being born in the United States was enough to confer citizenship automatically.

In the intervening years, particularly since the 1960s, a massive wave of illegal immigration has combined with this legal rule and created a large scale problem. The authors of the amendment, of course, had not dealt with significant illegal alien migration, and noted in debates that there were certain classes of “passers-through,” whose children did not qualify for birthright citizenship, including children of ambassadors. In addition, the combination of the “subject to the jurisdiction” language of the amendment and the power (under Section 5) of Congress to pass legislation to enforce the amendment as a whole suggest that its reach can rightly be restricted in such undeniable grey areas through legislation. But today the longstanding of “birthright citizenship,” the ideology of America as a “nation of immigrants,” as well as the numerous groups and people with a stake in the status quo have led to this concept’s enthronement.

Today the children of illegal aliens, tourists from China and Russia who come here expressly for the purpose of having their child born here for citizenship purposes, the children of visa-holders who are soon brought back to their countries of origin, and similar cases have devalued citizenship by bestowing it upon people with no real connection with or loyalty to the country.

Look to the Founders
While “our values” as expressed by both the Left and the nominal Right increasingly means the radicalism of yesteryear, the values of our founders as expressed in our founding documents are quite a bit more clear on the question of citizenship and immigration.

It is self-evident that they were wary of foreign influence. History is replete with disloyal newcomers opening up the city gates to their erstwhile countrymen or otherwise acting against the national interest. That’s why the Constitution requires any president to be “natural born,” even as it recognizes the possibility of naturalization.

The Constitution also requires congressmen to be seven years a citizen, and senators nine. The founders were sensibly skeptical of immigrants, whom they did not consider the ideal Americans of Bill Kristol’s and Brett Stephens’ imaginations. The Founders knew that newcomers could become productive and loyal Americans, but they knew also that the possibility of dual loyalties and outright disloyalty was a pervasive risk, and that a proven record of loyalty and allegiance was a useful preventative measure.

When illegal aliens, in particular, are able to confer citizenship on their offspring, the social contract between the government and the governed is broken. As our founding documents make clear, our government hinges upon the “consent of the governed.” It is supposed to be a government “of the people,” devoted to their “common welfare.” Self-government hinges upon the existence of a people with a common language, history, culture, and mutual loyalty—a people whose laws are an expression of their collective will.

When an illegal alien’s child is born here, not only is there no such guarantee of loyalty, there is affirmative evidence that such loyalty is missing. After all, the illegal alien has already shown contempt for the laws made by the people; his citizen child, with whom he does not share citizenship or even legal status, will grow up in a household without democratic participation. Rather, it will be naturally hostility to the country’s laws and government because of their quasi-fugitive status. The child will grow up to think of the country and its institutions as difficult obstacles that threaten his natural loyalty to the family, and not as the prized possession and expressions of the “noble free.”  

It’s About Self-Government . . .
This, quite simply, is not a good start. More important, it is not something upon which the American people, through their representatives, have ever clearly weighed in. Rather, birthright citizenship is a judicially created accretion that lacks any kind of pedigree as an expression of the will of the governed.

The common law dealt with this type of problem under the notion that “no one should profit from his own wrongdoing.” If someone stole money, invested it, and doubled it, the thief had to return the stolen principal and also the ill-gotten gains to the original victim. In this way, the law created a sound structure of incentives.

By contrast, “birthright citizenship” rewards illegal aliens (as well as other dubious cases, like birth tourists) without any corresponding benefit to the country or its people, nor any of the normal indicia of loyalty and allegiance.

To function, self-government requires a moral foundation, as well as an existing community. Majority rule does not extend to the whole globe. There is no duty to submit to even a majority of hostile “others.” Likewise, even a majority of a particular people is not permitted to do certain things, such as the imposition of ex post facto laws or the deprivation of property without compensation. The majority is limited both in its breadth (to a particular group of people) and its depth (it may only make laws that are constitutionally permissible).

The combination of large-scale illegal immigration and judicially created birthright citizenship have inverted these ordinary limits on American constitutional government, by allowing foreigners to decide who gets to be part of that people without their consent—indeed without any say at all—and without any of the safeguards to ensure that any such “citizens” become a loyal constituent part of the body of American citizens.

. . . And the Consent of the Governed
We live in a society with a great many rules that require respect for the wishes and autonomy of others. As the campus feminists remind us, “no means no.” But what is true individually is no less true collectively. Families decide who can be a guest in their homes. Gated communities control who enters. Shopping malls and Starbucks (until recently) could expel disruptive or non-paying customers. And countries, even generous and expansive countries such as ours, can decide who gets to become a citizen and under what circumstances.

As Donald Trump put it so bluntly in his campaign, “we either have a country, or we don’t.” Historically that meant a particular country, distinguishable from others, with a government made by and for a particular people. It was not the patrimony of the whole world, but rather devoted to the “general welfare” of its “posterity.”

Whether the issue is run-amuck intelligence agencies, when and under what circumstances to go to war, or who can and cannot be a citizen, the fundamental question of our age is the same as it was at our country’s origin: “Do we govern ourselves?”  

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About Christopher Roach

Christopher Roach is an adjunct fellow of the Center for American Greatness and an attorney in private practice based in Florida. He is a double graduate of the University of Chicago and has previously been published by The Federalist, Takimag, Chronicles, the Washington Legal Foundation, the Marine Corps Gazette, and the Orlando Sentinel. The views presented are solely his own.