Birthright debate: Born in the USA doesn’t mean what it used to

NEW YORK: Instead of assuming allegiance at birth, the president who once warned that immigrants are “poisoning the blood” of the nation is now treating illegality as a birthright, an unavoidable and damning inheritance Carlos Lozada

Consider the idea of a birthright. Historically, it has been an exclusionary concept: a title of nobility passed on to the firstborn male, an inheritance of wealth and status, a claim to land that must remain within a family or a clan. A birthright, by definition, belongs to one person at the expense of someone else. It is not shared. It is “mine,” not “ours.”

America’s tradition of birthright citizenship — specified in the Constitution’s 14th Amendment, passed and ratified after the Civil War — upends that understanding. The American birthright is encompassing rather than exclusionary. It is, by definition, for all. Though the United States is hardly the only country to grant citizenship to those born within its borders, the practice has become an essential trait of our national character.

The old notion of birthright reinforces class division, even class oppression. America’s birthright, in contrast, is a source of equality before the law, a starting point for the pursuit of happiness. The 14th Amendment’s citizenship clause is not just in the Constitution; it identifies the source of the document’s enduring legitimacy. If the Constitution was ordained and established by “we the people,” then it helps to know who counts among the people, who is included in that “we.”

During its first days, the Trump administration announced several orders and policies that would radically transform America’s posture toward immigration — blocking asylum-seekers at the southern border, deploying the U.S. military to help seal that border, cracking down on unauthorized immigrants already in the country and suspending the entry of refugees from around the world, as well as rejecting the principle of birthright citizenship. This last effort, in particular, seems unlikely to survive judicial scrutiny: More than 20 states have immediately challenged the citizenship order, and a federal judge in Seattle has temporarily blocked it, calling it “blatantly unconstitutional.”

Yet it is that very unlikelihood that renders the administration’s action especially noteworthy. In trying to unmake this American birthright, President Donald Trump is doing much more than taking control of the border or creating a disincentive for future immigrants to the United States. He is seeking to limit and redefine that “we” that makes up America. He doesn’t have to win this battle right away (though I am sure he’d like to). By questioning birthright citizenship at all, he aims to erode its legitimacy. By tossing it into the political and judicial fray, he succeeds in having the American birthright bruised and weakened.

The text of the executive order is impressive in its sleight of hand. The title, “Protecting the Meaning and Value of American Citizenship,” is the precise opposite of what the document seeks to accomplish.

Trump’s order does not protect the meaning of citizenship but threatens it. His order does not enhance the value of citizenship but cheapens it by making it conditional rather than universal. The order calls U.S. citizenship a “priceless and profound gift.” It is indeed priceless and profound. But describing it as a “gift” gives the game away. After all, the recipient of a gift has no prior right to it, no claim to uphold; the gift is bestowed at the whim of the giver.

“All persons born or naturalized in the United States, and subject to the jurisdiction thereof,” the 14th Amendment begins, “are citizens of the United States and of the state wherein they reside.” Immigrants to this country can strive to become U.S. citizens — establishing residence, filling out forms, passing tests, swearing oaths — but their native-born children gain that status automatically. “Persons born” here need not swear an oath; their citizenship is instantly conveyed, their allegiance automatically assumed. It need not be earned or demanded, and it is not doled out selectively through the benevolence of a fickle leader. It simply is.

The first words of constitutional clauses are telling. That “we” that leads off the preamble is aspirational, an imagined community as much as a real one. “The Constitution opens by speaking on behalf of a united people when, in fact, the unification of that people is among its foremost goals,” Yuval Levin writes in his recent book “American Covenant.” No coincidence, the second paragraph of the Declaration of Independence begins with the same first-person plural form: “We hold these truths to be self-evident,” it reads, even if at the time those self-evident truths were far from self-fulfilling, limited to a narrow interpretation of “we.”

The 14th Amendment, our longest single tweak to the Constitution, affirmed “due process of law” and “equal protection of the laws” as fundamental concepts. Yet birthright citizenship retains pride of place at the beginning of the amendment’s text: “all persons born or naturalized.”

The amendment’s citizenship clause was aimed primarily at redressing the ills of Black enslavement and clarifying the status of the nation’s newly emancipated people. But as Eric Foner writes in his 2019 book, “The Second Founding,” it would grow to include much more than even that. “Adopted as part of the effort to purge the United States of the legacy of slavery,” he explains, “birthright citizenship, with which the 14th Amendment begins, remains an eloquent statement about the nature of American society, a powerful force for assimilation of the children of immigrants and a repudiation of a long history of racism.” That “all” at the beginning of the 14th Amendment is remarkable in its expansiveness. “All” knows that there are many more to come, and it does not mind. “All” admits no difference between American-born citizens who can trace their ancestors to the Mayflower and those whose parents only recently landed.

“All” proclaims that U.S. citizenship must not distinguish by race, language, wealth, education or faith, those contested markers of belonging that have caused so much strife in so many places at so many times. “All” is all.

Foner, a historian at Columbia University, describes the 14th Amendment — together with the 13th, which abolished slavery, and the 15th, which prohibited racial discrimination in voting — as a “second founding” of the Republic. These three Reconstruction-era amendments transformed the national

government into the ultimate guarantor of people’s rights and empowered “movements for equality of all kinds to be articulated in constitutional terms,” he writes. Those amendments are bound up with the Constitution’s preamble, “a step toward making the Constitution what it might have been if ‘we the people’ (the document’s opening words) had been more fully represented at Philadelphia.”

It took some eight decades after ratification of the Constitution, not to mention the small matter of a civil war, for the United States to take that step. And it took 30 years longer for the Supreme Court to make plain the meaning of the 14th Amendment’s citizenship clause. Let it not be said that “we the people” are a precipitous lot.

“All persons born or naturalized” seems clear enough. I was naturalized as a U.S. citizen just over a decade ago, whereas my wife and children were born to that station, but we are all citizens with the same privileges and immunities. The difference is logistical, whether we applied for that status or assumed it at birth. But the phrase that follows — “and subject to the jurisdiction thereof” — became a matter of greater dispute, including in the case of Wong Kim Ark, a man born in San Francisco to Chinese parents in 1873.

When Wong was in his early 20s and returning from a trip to China, authorities denied him reentry to the United States on the grounds that he was not a citizen. In a 6-2 vote, the Supreme Court ruled that, based on the 14th Amendment, he was indeed a citizen, fulfilling the “ancient and fundamental rule of citizenship by birth within the territory.” The few exceptions the court acknowledged to that fundamental rule included children whose parents were diplomats working for a foreign government in the United States at the time of the birth (and thus not subject to U.S. jurisdiction) and children born to “alien enemies in hostile occupation” in the United States.

Wong met no such exceptions. “Upon the facts agreed in this case,” Justice Horace Gray affirmed in the 1898 majority ruling, “the American citizenship which Wong Kim Ark acquired by birth within the United States has not been lost or taken away by anything happening since his birth.”

Trump’s executive order asserts that the 14th Amendment “has never been interpreted to extend

citizenship universally to everyone born within the United States.” That is both true and severely misleading. There are exceptions, of course, but they are few and constrained and specific, as the Wong case shows.

Does birthright citizenship offer immigrants an incentive to come here? Of course it does. But the appeal of America is not just the stuff the country provides; it is also the stuff the country is made of.

In his 1988 book, “Constitutional Faith,” Sanford Levinson suggests that Americans’ devotion to the Constitution has contributed to “the historically remarkable acceptance of immigration by a wide variety of ethnic groups into the United States.” Despite his significant reservations about this devotion, he understands that the Constitution is revered in part because our leaders, most notably Abraham Lincoln, saw no other means to unite such a varied and fractious country. “The Constitution thus becomes the only principle of order,” Levinson writes, “for there is no otherwise shared moral or social vision that might bind together a nation.”

You don’t have to be a constitutional scholar or even a U.S. citizen to understand that.

If America’s constitutional tradition of birthright citizenship reverses the standard historical meaning of “birthright,” Trump is seeking to transform that meaning once more. Instead of assuming allegiance at birth, the president who once warned that immigrants are “poisoning the blood” of the nation is now treating illegality as a birthright, an unavoidable and damning inheritance. If your parents violated a law to come here, their actions are passed on to you, automatically, at birth, the sins of the fathers ever laid upon the children.

Trump is not binding a nation together; he is tugging at its weakest threads.