Skip to content
Breaking News Alert In Big Victory Against Lawfare, DC Court Of Appeals Smacks Down Jeff Clark Subpoena

Republicans And The Politics of Birthright Citizenship


Let’s talk about birthright citizenship for a moment. First, understand that birthright citizenship is and has been one of the things that is relatively unique to the American experiment. Simply because one is born in Paris does not make you a Parisian. But there is no bar of ethnicity or loyalty that prevents you from being an American. Everyone has a birthplace, and if that birthplace is America, you arrive in this world as an American, with a duty of protection owed by the government to you, honoring your rights and claims to liberty as it does for all Americans, and a pledge of allegiance owed from you to the republic that defends and secures those liberties.

To me, this is a beautiful example of what makes America unique. We do not seek to build a republic out of the bloodstream of elites, but understand that even out of the wretched refuse of the world can come a nation that is the envy of it, and that within each beating heart of a child born in America, no matter the meanness of his origins, is a limitless potential and a spark of the divine.

Within each beating heart of a child born in America, no matter the meanness of his origins, is a limitless potential and a spark of the divine.

To take odds against birthright citizenship is to rebel against two aspects fundamental to the American experience: the inherited understanding of English common law held by the Founders (which would replace the government in the paragraph above with the sovereign) and the Constitutional mandate placed within the Fourteenth Amendment in the wake of the Civil War. Some conservatives dispute both of these interpretations – I believe their dispute is wrong and largely revisionist. Supreme Court Justice Joseph Story pronounced in 1830 that “nothing is better settled” in common law than this understanding, and the context of the debates over the 14th do not in my view support the views of some modern conservatives. Modern conservatives would revise Andrew Jackson’s understanding of citizenship to place illegal immigrants within the context of the organized tribes of American Indians, to whom no legal or Constitutional protection was owed – despite the tribal rhetoric of some nativist opponents of immigration on the right, this is simply not the case. But enough of what I think about the history, which is largely irrelevant to the current discussion: instead, let’s talk about the politics of going after birthright citizenship, which is much more tangible and relevant to our current discussion.

Many Republicans support an end to birthright citizenship. Mitch McConnell held hearings on it in 2010, and Steve King and David Vitter have introduced the current versions of the legislation aimed at doing so. In the presidential field, Rand Paul, Lindsey Graham, Chris Christie, Rick Santorum and others have backed ending birthright citizenship. In the wake of Donald Trump’s immigration proposal, two more have added their support for the idea: Scott Walker and Bobby Jindal, the latter of which is a birthright citizen himself. In scattered polling on the issue, a minority of Americans but a majority of Republicans support the idea.

Let us consider the problems here. From a political perspective, you are going after the children of illegal immigrants, a population that has been declining for several years. About seven percent of American K-12 students have at least one illegal immigrant parent according to Pew. To go after their American status – or as Donald Trump wishes, to deport them en masse along with their illegal parents – will be a daunting political and legal proposition. Even the editors of National Review, who are overwhelmingly fans of Donald Trump’s plan, pronounce birthright citizenship a bridge too far: “Trump’s proposal to end birthright citizenship is sure to be the most controversial element of the plan, but it is also sure to be a nonstarter. While birthright citizenship is abused now, ending it would be a Herculean task politically and the Supreme Court is unlikely to be cooperative.”

Taking this stand sends a message to every citizen born of an immigrant of dubious legality: that you do not believe they have a right to be an American.

In this, they are correct. First, to eliminate birthright citizenship requires a Constitutional Amendment, which will not happen. (I’m serious. This is never going to happen. The discussion is moot.) Second, endorsing eliminating birthright citizenship creates a new horde of political enemies – forget the millions who have benefited from this policy, anyone who knows anyone who is a birthright citizen is going to view this effort as an act of xenophobic rage. Third, it creates no new friends to offset these new enemies – anyone who is opposed to birthright citizenship was likely already your supporter anyway. And fourth, it runs counter to every major American historical narrative about what we believe about the possibilities of our nation, where we came from and where we are going.

I understand that my views are not representative. But for those conservatives who care about immigration policy, who believe it ought to be reformed and that the United States is not currently living up to its challenge to further an equitable, reasonable, and proper attitude toward immigration – one that balances the interests of markets in pursuing contracts and fulfilling labor needs with the needs of any nation state to guard against threats to its security, health, and welfare – birthright citizenship is not the hill you want to die on. There are 50 more feasible reforms you ought to deal with first, even if you are a hard-line conservative on the issue. And in the meantime taking this stand sends a message to every citizen born of an immigrant of dubious legality: that you do not believe they have a right to be an American. This is a powerful message, and not one that will be forgotten any time soon.