6.30.26 - Bar Prep Day 2: Thoughts on Birthright Citizenship
This is not a legal analysis because reading a SCOTUS opinion properly takes time and I have to learn Evidence. And it just dropped today. But here are my general thoughts.
First, I am generally pro-Birthright citizenship. And I don't want something as restrictive as a rule requires the child to be of American citizens. America is unique in that we are defined by our place and creed more than being an actual, related cultural/ethnic community. Birthright citizenship is aligned with the idea of America as a place and a creedal nation. The holding is better than the alternative. The Executive Branch shouldn't be able to modify the boundaries of citizenship.
It is also clearly, unequivocally, undesirable in my view that someone can come to this country illegally or in passing, have a child, and that child is now a U.S. citizen. Yes, it's an edge case and it does not happen to scale. But it happens. And it's frankly ridiculous. In theory, that person, even if they then leave the country immediately, they have the same political rights as someone whose parents were born here, pay taxes, are part of the community--they can vote!
I understand why this edge case drives my friends on the right insane. And it's not even a matter of morality. It's not like, Due Process, which i think is an embodiment of natural rights and ideas of fairness which should apply to everyone alike. Due Process is about humans, not citizens. But Citizenship is not like that. It's a political category. It's a special kind of privilege and membership.
Everyone on earth has the right to be treated fairly (which is a very short reason why Due Process does not hinge on citizenship). Not everyone on earth has the right to decide matters of policy for a different community! Very obviously, the world does not have any legitimate interest in deciding what happens in OUR country (although a very certain nation "state" tries all the time).
This is why the whole anchor babies thing feels absurd. It really creates a very fuzzy edge of the political community, and who "counts." And the only reason it's mostly FINE is because it's relatively inconvenient and uncommon as a matter of fact to exploit our citizenship criteria like this. But I think that if say, teleportation technology was real, and we had a consistent problem with illegal teleporters coming in and giving birth then beaming out, and then their kids sending in mail in ballots when they were of age, the absurdity would become clearer.
I think that's what makes the hardline rule the Court reaffirmed feel bad. It seems that, except for Kavanaugh, the majority doesn't really think that Congress would have the power (to be clear, the Executive should NOT have this power) to redefine who is subject to our jurisdiction under the meaning of the 14A to be more pragmatic. They constitutionalized the principle. That means our whole nation, our political community, is defined by a matter of fact than law. What can people get away with? If you can sneak in illegally, have a child, then you've joined our political community. Again, I actually don't think this is a problem to scale at the moment. But I agree with Thomas that this cheapens our citizenship.
I'm only talking about the outcome here. Obviously, sound reasoning can sometimes lead to silly outcomes. I don't feel like talking about the legal reasoning. But it feels very silly that we may need a constitutional amendment to create a more principled definition of our political community. My desired outcome is that we have jus soli citizenship for children of everyone legally her minus the existing exceptions (which I think are diplomats, foreign armies, and related classes). And that Congress had a little bit more power to tweak the edges of how natural citizenship works. Although that would be messy, and the current rule is a lot neater administratively.
But really, this case isn't about what's pragmatic, or administratively convenient, or what's doctrinally neat. It's really about what America IS. I'm pretty far from seeing America as a blood and soil "nation" proper. I don't think that defining one's political community in such terms is immoral--the Japanese can do that, the Swedes can do that (do they?)--whatever. I just don't think that's what we're all about. We're the New World. Somewhere where people are just people. We had uncontrolled migration for a long time. America was a place you SHOWED up to. That's amazing! And for a while it was legal to just show up in a boat. Think about how insanely cool that is.
But to paraphrase a bad bad man, a country is not just an economic community. We're a civic society. American probably leans towards being a place with certain ideas and institutions more than a "people" but it's not magic soil either. To quote my natcon friends, if you change the people, you change the country. All I know is that under the current opinion, 400 million [members of generic ethnic group here] teleported into the country illegally, had a child, then beamed out, in about 18 years time it would be a different country. And what's protecting us from that outcome is a matter of fact, not our laws, not our constitution.
cheers,
knxnts