Wednesday, October 31, 2018

My Argument for Birthright Citizenship


I've read a number of libertarian arguments on principle against "birthright citizenship," and I agree with them. I should really pick just one, so I'll pick one by Nathan Barton. Excerpt:

I believe the very idea of "birthright citizenship" is contrary to basic principles of liberty. The concept (that I have no choice but to be an American citizen because of where I was born and because of what my parents decided) is bad. It takes away the liberty of millions.

I did not sign the Constitution (or even the Articles of Confederation). How can I be governed by that -- just because one or more of my distant ancestors might have been forced to accept the jurisdiction of the governments who DID sign that constitution or were admitted to the Union afterwards? We rejected inherited slavery a long time ago. Or did we?

Works for me.

There are also some libertarians attempting to argue against "birthright citizenship" on constitutional/legal grounds. I say "attempting" because their arguments do not and cannot hold water.

Just as an example, some quote the author of the "citizenship clause," US Senator Jacob M. Howard (R-MI) as follows:

This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

Oddly, they interpret that to mean exactly the opposite of what it clearly means. What it means is that if you are born into the family of a diplomat who is representing another regime on official business in the United States and is therefore not subject to the jurisdiction of the United States (i.e. there is "diplomatic immunity"), the citizenship clause doesn't cover you. If you're born to anyone else*, it does.

The asterisk is intended to note that there was some discussion of Indians. Howard held that because the tribes were (at least theoretically) sovereign nations with their own jurisdictions and their own territories (the reservations), they were neither part of nor "under the jurisdiction of" the United States. So being born in, say, the Cherokee Nation didn't confer "birthright citizenship" because that was being born abroad.

"Birthright citizenship" was what President Andrew Johnson took the clause to mean. That was what Senate Judiciary Committee chair Lyman Trumbull (R-IL) took it to mean. That was what every Senator who expressed an opinion took it to mean. Not a single Senator argued against that interpretation.

In fact, those who argued against the clause argued against it precisely because that's what they understood it to mean. Edgar Cowan (R-PA), for example, was upset that it would apply to the children of gypsies and of Chinese immigrants. He didn't think the Civil Rights Act already applied to them and didn't want the 14th Amendment to either:

Mr. Cowan: I will ask whether it will not have the effect of naturalizing the children of Chinese and Gypsies born in this country?

Mr. Trumbull: Undoubtedly.

...

Mr. Trumbull: I should like to inquire of my friend from Pennsylvania, if the children of Chinese now born in this country are not citizens?

Mr. Cowan: I think not.

Mr. Trumbull: I understand that under the naturalization laws the children who are born here of parents who have not been naturalized are citizens. This is the law, as I understand it, at the present time. Is not the child born in this country of German parents a citizen? I am afraid we have got very few citizens in some of the counties of good old Pennsylvania if the children born of German parents are not citizens.

Mr. Cowan: The honorable Senator assumes that which is not the fact. The children of German parents are citizens; but Germans are not Chinese; Germans are not Australians, nor Hottentots, nor anything of the kind. That is the fallacy of his argument.

Mr. Trumbull: If the Senator from Pennsylvania will show me in the law any distinction made between the children of German parents and the children of Asiatic parents, I may be able to appreciate the point which he makes; but the law makes no such distinction; and the child of an Asiatic is just as much of a citizen as the child of a European.

Children born in the United States whose parents are not credentialed foreign diplomats, i.e. not under the jurisdiction of the United States, are citizens.  That's an incontrovertible fact of both US citizenship law going back to the founding of the country (and to English common law before that), and of the 14th Amendment's meaning. Any executive order or statute claiming anything to the contrary is repugnant to the Constitution and therefore void. Period.

Which leads me to my own argument: The strategic argument.

We should always hold the state to its own rules when  and where those rules deny new discretionary authority to the state.

A faction of the ruling class is demanding new discretionary state authority to decide who is and who is not a citizen.

The only plausible reason for demanding that new discretionary authority is the expectation that that discretionary authority will increase the state's general level of power over all of us.

The faction so demanding is claiming the prerogative of seizing that new discretionary authority in violation of its own rules requiring passage by 2/3 of both houses of Congress and 3/4 of the state legislatures.

Why? Because they know they won't be able to get 2/3 of both houses of Congress and 3/4 of the state legislatures to go along with the idea.

Well ... no. Screw'em. Every one of them claims those same rules as the basis for their existing authority. They don't get to drop the one without dropping the other.

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