Nothing Is More “Conservative” Than Birthright Citizenship

Nothing Is More “Conservative” Than Birthright Citizenship

Eliminating birthright citizenship means overthrowing the Constitution and the thousand-year history of English common law.
Robert Tracinski
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Part of Donald Trump’s disastrous plan for a diplomatic and trade war with Mexico is to eliminate birthright citizenship, the policy that you become a citizen of the United States simply by virtue of being born here, even if your parents are not citizens. This is a proposal that enjoys wide support on the right and has since been picked up by several tag-along candidates in the Republican primaries.

It is also evidence that there are plenty of “conservatives” who want us to stick to the Constitution and time-worn legal traditions—so long as this supports the things they like. But if the Constitution and the thousand-year history of English common law get in the way of their nativist prejudices, then to heck with them.

Make no mistake, eliminating birthright citizenship would require an overthrow of established traditions. It implies a reckless urge to break down ancient legal principles without inquiring why those traditions existed in the first place. In short, it requires precisely the sort of thing conservatives are supposed to be against.

See here for an in-depth look at the precise legal issues, but let’s just take the highlights. What we call “birthright citizenship” is an ancient principle of English common law called jus soli. This principle was so widely accepted at the time of America’s founding that it was never explicitly affirmed, even as it was followed in practice (with one huge exception, which I will get to in a moment). America at its founding was a nation eager to grow and expand. Not only did it place no limits on immigration, but the Declaration of Independence had included such limits among the grievances against King George III: “He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither.” (For those who think that the Founders only wanted to encourage British immigration, note that British subjects would not have been described as “foreigners” since the colonies were, up until that point, British.)

What we call “birthright citizenship” is an ancient principle of English common law.

For the Founders, rejecting jus soli or birthright citizenship would have meant either greatly restricting the growth and expansion of the new nation or, more likely, creating a system in which there was a large and growing sub-population of people who were disenfranchised in the land of their own birth—an idea totally incompatible with a government based on the consent of the governed.

Our forebears did create just such a sub-population: Africans who had been brought over as slaves, who continued to live in America for generations without even the most basic rights of citizens. It was specifically to redress this injustice that birthright citizenship was explicitly written into the Constitution in the 14th Amendment. The very first sentence of the 14th Amendment declares, “All persons born…in the United States, and subject to the jurisdiction thereof, are citizens of the United States.” When you think about it, everything else in the 14th Amendment is kind of redundant. If former slaves are citizens, then they automatically have all the rights of citizens.

These provisions, by the way, were cornerstones of the agenda of the Republican Party. In fact, they were among our party’s founding achievements. So if you want to repeal the 14th Amendment and still call yourself a Republican—well, let’s such say you have even less sense of history than the Democrats who want to purge Thomas Jefferson from their party.

Republicans who want to repeal the 14th Amendment are like Democrats who want to purge Thomas Jefferson.

It was apparent to those who passed the 14th Amendment that it would do more than just affirm the citizenship of former slaves. In debates over this clause, some objected that it would affirm the citizenship of children from certain immigrant populations that were considered, at the time, to be undesirable—specifically, gypsies in Pennsylvania and Chinese in California. This objection was rejected, but it is instructive to recall the words of the chief opponent of birthright citizenship, Pennsylvania Senator Edgar Cowan: “[I]s it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration of the Mongol race? Are they to be immigrated out of house and home by Chinese? …It is utterly and totally impossible to mingle all the various families of men, from the lowest form of the Hottentot up to the highest Caucasian, in the same society.” Is this a tradition you really want to endorse?

Unfortunately, this is pretty much the same narrow-minded sentiment you will hear from a lot of the anti-immigration fanatics currently singing hosannahs to Donald Trump.

I’ve been getting a lot of responses to my previous criticisms of Trump from people who assure me that European immigrants are OK, because they are easy to assimilate, but it’s just that non-Europeans are a danger to the republic. By “non-European,” they somewhat incongruously mean Hispanic immigrants—who, of course, trace their culture and ancestry to Spain. Which is in Europe.

Every argument against non-European immigrants was once made against the Irish and Poles.

But every single argument made against these supposedly non-European immigrants is just a rehash of arguments made a century or more earlier against the “wrong” kind of European immigrants. That includes the Irish and the Poles, which I take personally, since these are a little more than half of my ancestors. The Irish were derided as lazy drunks who didn’t want to work and just wanted handouts. The Italians got the same rap, except that they were also blamed for importing organized crime. Eastern Europeans supposedly came from a foreign and despotic political culture and could never embrace the American political creed. Jews were supposedly loyal to an alien religious tradition and would never assimilate. Same thing for the Catholics, too, which was a further mark against the Irish and the Poles.

Not only did all of these people assimilate, but they because as American as apple pie and ended up doing tiny little favors for their country like helping to win World War II. As for the theory that immigrants were going to undermine the American political system, these previous waves of immigrants eventually ended up as Reagan Democrats. The great wave of big-government Progressivism, by contrast, was pushed forward by people with names like Woodrow Wilson—a Southern gentleman who came to office with the support of Democrats who believed in white supremacy—and both Roosevelts, who were scions of an old Dutch New York family. As for the idea that immigrants are responsible for undermining our political culture today, you can test that theory by mingling with the old white folks at a Bernie Sanders rally. There is plenty of blame to go around for our current political state. It’s just that most of it is our own damn fault.

Birthright citizenship is what makes it possible to absorb immigrants while keeping a nation whole.

The purpose of birthright citizenship is precisely to achieve what its critics claim they want: to make it possible to absorb immigrants while keeping a nation whole. Without it, we might have ended up with a vast sub-population of Americans with names like Roark and Traczynski (my people) who are alienated and disenfranchised in their own land. I might also add that this would include people with last names like Jindal.

Which brings us to the minor candidates trying desperately to pull themselves up from the low single digits in the polls by hitching themselves to the Trump bandwagon. That includes Scott Walker, who has previously been much more moderate on immigration and can now kiss goodbye any remaining reputation he had as a guy who is willing to make brave political choices. Most preposterously of all, it includes Bobby Jindal, whose parents were not citizens when he was born in Louisiana. That means that he is now running for president by opposing the very policy that makes it possible for him to run for president. It just might be the first self-negating presidential campaign.

As a matter of politics, this seems quite foolish. I know the folks languishing down at one percent in the polls are pretty desperate, but they’re not likely to get much benefit from being the second guy to demagogue on immigration. And they’re overestimating the mileage Trump will get from his modern know-nothing agenda. Whipping up the passions of the most fanatical opponents of immigration may get you a solid bloc of supporters in the primaries, but it puts a hard cap on your wider appeal, because it repels every voter who doesn’t embrace that agenda, including a lot of staunch conservatives and radical small-government types like myself.

To put it more exactly, it opens a fissure between two different kinds of “conservatives”: those for whom conservatism means a mere emotional reaction, a knee-jerk rejection of change, versus those for whom being on the right means trying to conserve this country’s basic principles. Trump is appealing almost entirely to this first group. I consider myself in the second group. I don’t call myself a “conservative” except in one respect: I am a “constitutional conservative,” meaning that I set out to understanding what our political system is and why it got to be that way, so we can know what is essential to it and what is non-essential, and so we know what can be changed without destroying the system.

Birthright citizenship is a part of our constitutional system that has been there since the beginning, and getting rid of it is a recklessly radical and destructive change. Anyone who advocates it can’t claim the mantle of “conservatism”—least of all Donald Trump.

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