The fact that there is now going to be a “debate” over birthright citizenship is incredibly dangerous. Prior to Trump’s gesture toward eliminating it with an executive order, it was essentially a self-evident American value and institution. Indeed, most people I have talked to without a special interest in the issue have been surprised to learn that other countries don’t have birthright citizenship. Now, however, there is suddenly a “controversy,” and that means that “both sides” have to be treated with equal respect. Given the composition of American political elites, the “sides” will most likely be people who think we should mostly keep birthright citizenship but who admit that “anchor babies” are a problem and people who think we need to eliminate the system altogether.
This isn’t a total hypothetical. I’m old enough to remember when we suddenly had a “national conversation” about torture. As soon as the idea of the legitimacy of torture had the slightest toehold in the national discourse, every staged “debate” was oriented toward extorting torture opponents into admitting that there were some circumstances where it was warranted. Hence the infamous “ticking time bomb” scenarios. You see, absolute opposition to torture was an extreme position that couldn’t possibly be right — the truth had to be “somewhere in the middle.” And when the American people repudiated Bush and the Republicans to a degree unprecedented in the last forty years, Mr. Moderation himself decided that it was time to look forward and not backward and didn’t prosecute any of those well-intentioned patriots who let themselves get carried away and wound up doing a few regrettable things. And you have to admit, don’t you, that they kept us safe!
And I’m worried the same thing will happen here — that birthright citizenship will be permanently damaged by the very existence of this sham debate between the constitutional status quo ante of the last century and a half and this new idea that just popped into Trump’s head, both of which are equally legitimate “sides” in the brilliant “debate” that the media will be so proud of themselves for covering so even-handedly.
In reality, if we must have rights based on citizenship, clear and unambiguous standards like birth in the national territory are the only way to go. Do you want some government bureaucrat to be in a position to strip you of citizenship because the paperwork was wrong? There is no good outcome if we go down this road, just like there was no good outcome from opening up the question of torture. The extreme position is the correct one. But once you have to say it, the unquestionable norm is already gone and the damage is done.
3 thoughts on ““Reasonable people disagree.””
Apparently, the (specious) argument, current among right-wing jurists, that the birthright clause of 14th Amendment is not absolute, but should be read as not necessarily including children born to undocumented residents or other aliens, is mainly based on an analogy with those native tribes who were once not “within the jurisdiction” of the US.
I am not a lawyer and this comes from a quick glance at some of what’s been written, but I vaguely sense that this, when upheld by the Supreme Court, might lead to another step: if Congress or the executive can stipulate undocumented immigrants are not properly within the jurisdiction of the US, then perhaps they are also not subject to the protection of the US and its laws, and so forth, and this could lead to something extremely unpleasant.
Well, I’m no expert, but a pretty horrific vista seemed to open up here.
You don’t strip people of citizenship unless you plan to do something to them that you can’t do to citizens.
What I was getting at was that this kind of reasoning might, as a kind of byproduct, open up avenues to denying people rights and protections that are due to them even as non-citizens. Not just stripping them of citizenship but actually introducing a sort of outlawry.
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