By Stephen C. McKenna | Guest Commentary, themckennaproject.com
Colorado recently joined twenty-one other states in suing the federal government over President Trump’s Executive Order ending birthright citizenship.
Setting aside for a moment the argument of whether the 14th Amendment guarantees birthright citizenship, I am wondering why so many claim to be so outraged by the idea. In Colorado’s case, it cannot be because gubernatorial candidate Attorney General Phil Weiser has a deep and abiding respect for the constitution. He and Secretary of State Jena Griswold, who is also eyeing the governor’s mansion, embarrassed Colorado by trying to remove Trump from the 2024 ballot, which the Supreme Court of the United States (SCOTUS) ruled 9-0 was unconstitutional. These politicians appeared to be more concerned with politics than constitutionality then, and likely are now, as well.
The question of whether children of noncitizens born in the U.S. are citizens turns on whether the 14th Amendment covers such children. The citizenship clause reads: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States….” (emphasis added).
The US ratified the 14th Amendment in 1868, overturning SCOTUS’s Dred Scott decision (1857), which had held that Americans descended from African slaves could not be U.S. citizens. The two leading SCOTUS cases on the issue are Wong Kim Ark (1898) and Elk v. Wilkins (1884). Wong Kim Ark held that a child born to Chinese parents legally residing in San Francisco was subject to U.S. jurisdiction and thus a citizen. Elk v. Wilkins held that a native American who severed ties with his sovereign Indian Nation was not. SCOTUS has never directly addressed whether children born to noncitizen parents that are in the country without legal justification are citizens.
In the 1800s, the U.S. was expanding westward and encouraged adventurous and productive foreigners to migrate here, legally. Things have changed since then, and the Department of Homeland Security estimates that 11 million unauthorized migrants resided in the U.S. in 2022.
In Wong Kim Ark, SCOTUS found that “it is the inherent right of every independent nation to determine … what classes of persons shall be entitled to its citizenship.” Only 33 of 195 countries have unrestricted birthright citizenship, the most prominent being the U.S., Mexico, and Canada.
Arguments against birthright citizenship and illegal immigration are generally based on the idea that countries have limited resources, and opening their doors to all comers is unsustainable and detrimental to current citizens. Those in favor argue that it is unkind to deny entry or citizenship, and we need migrants to pick our food, mow our lawns, and clean our houses because not enough citizens are willing to do so. As to the unkind argument, consider this. If you were with your children in a burning building with dozens of others would you prioritize the safety of yourself and your children, or the others? Would it be kind to push your children aside to help others? Or to allow yourself to succumb to smoke or fire such that you could not help anyone? Of course not, so this argument does not hold water. Whether cheap labor is worth the $150 billion a year the U.S. spends on illegal migrants is more debatable.
But that is not the debate we are having, why? Could it be that politicians like Phil Weiser and Jena Griswold prefer to avoid the genuine issues because accusing opponents of being unkind while touting their own feigned virtue has become ingrained in their political personas?
We will see whether Trump’s EO on birthright citizenship holds up. And because so many in the media and politics prefer pontification to policy debates, the actual issues will likely need to be addressed by the courts. The better result would be for the people to address these issues through debate, and then legislation or a constitutional amendment.
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