Lying To Make Friends

George Will wrote an op-ed in the Washington Post last week called “An argument to be made about immigrant babies and citizenship.”  How anyone got past that atrocious title to actually read the thing is beyond me.  The article should more accurately be titled, “Every year someone makes the same argument about immigrant babies and citizenship that has been settled law since at least 1898.”

What George Will is interested in is eliminating birthright citizenship, so that Congress could have the power to say that no matter where they were born, Mexicans are Mexicans.  (I’m paraphrasing.)  This, Will says, serves to accomplish 3 goals: 1) bringing the interpretation of the 14th Amendment “into conformity with what the authors of its text intended”; 2) bringing that same interpretation in line with common sense; and 3) removing an incentive to illegal immigration.

Let’s start with that first goal, what the authors of the text intended.  The 14th Amendment was added to the U.S. Constitution following the Civil War.  That war was famously preceded by a Supreme Court case, Dred Scott v. Sanford, which held that people of African descent were not citizens.  So the post-war amendments were enacted specifically to correct the wrong of saying that citizenship could be determined by ancestry or race rather than by birth.  And yet Will thinks the authors of that text intended, in fact, to say the opposite – because if citizenship were based on that of parents, the children of African slaves, born in the United States, would not be citizens.  I don’t think it’s going out on a limb to say that was NOT the intent of the 14th Amendment’s authors.

As for the issue of common sense, Will argues that interpreting the language of the 14th Amendment to require birthright citizenship strains reason.  The text says, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.”  Seems pretty clear to me.  I don’t see a part that says “other than persons born of persons not of the United States.”  In order to make this simple, straightforward sentence confusing, Will gives a strained reading to the “subject to the jurisdiction thereof” language, following an argument that was first made in the 19th century to try to exclude native-born Americans of Chinese ancestry from citizenship.

Will’s argument is even less coherent than the racist anti-Chinese arguments, though – he says that because “in 1868 there were and never had been any illegal immigrants,” since immigration had not yet been restricted, the authors and ratifiers could not have intended birthright citizenship for “illegal immigrants.”  This, to me, is an amazing rationalization.  The argument is factually untrue, since many states regulated immigration both before and after the Civil War.  But it is also incredibly disingenuous, because it acts as though the invention of a phrase is the same thing as the start of a concept.  Does Will honestly think that because this country did not criminalize the act of living in the United States without federal authorization until after 1868 (aka “illegal immigration”) mean that the people who wrote the 14th Amendment – a mere 7 years before enacting a federal immigration statute, in fact – thought that everyone living in the U.S. had and always would have federal authorization to do so?  Again, not plausible.

Will’s final argument gets the most popular play – the idea that birthright citizenship creates a powerful incentive for pregnant women to come to the U.S. in order to access our most valuable asset: citizenship.  “On our dime,” the argument usually continues, implying further disgust at the hospital bills and other costs that then American taxpayers have to pay for this jet-setting mother.  Even though this is Will’s least legal argument, he puts it in the mouth of a law professor (does he realize its racist undertones, or is that assuming too much?):

A parent from a poor country, writes professor Lino Graglia of the University of Texas law school, ‘can hardly do more for a child than make him or her an American citizen, entitled to all the advantages of the American welfare state.’

Yes, right.  As though Americans on welfare are living lives of great advantageousness.  As though a woman suffering in abject poverty would choose to have a child in order to better her circumstances.  And as though poor pregnant women, in droves, are making the unfathomably dangerous and difficult decision to immigrate to the U.S. unlawfully, just to get their children rubber-stamped as citizens.  After all, having a citizen child does not protect a mother from deportation.  It does not protect her other children from deportation either.  It gives only the barest protections to the citizen child, who will still face racism, discrimination, and criminal suspicion.

Will ends by making the same argument that has been made elsewhere (by Peter Schuck, for example), that U.S. citizenship is a consensual relationship, requiring the consent of the nation.  Will might prefer that people (specifically, white people) get to decide who gets the citizenship title and who does not (and in this regard he shares much in common with the tea party types denying Obama’s citizenship).  Thankfully, since the 14th Amendment, citizenship has almost nothing to do with consent.  Whether Will likes it or not, the descendants of African slaves are citizens automatically, as are the descendants of Chinese immigrants in California, as are the “children born to Indian parents,” who Will wrongly suggests are not citizens.

It’s actually the one immigration rule that functions pretty equitably.  So it is no surprise that in spite of the fact that it has been clear, unquestioned, and fully established constitutional law for well over a hundred years, the calls to change the rule keep on coming.

-AS