Op-ed: Citizenship Without Consent

Determining citizenship based on a birth certificate alone simplifies things immensely. Unfortunately, we no longer live in a world where that’s sustainable.

President Trump’s executive order interpreting the 14th Amendment’s “subject to the jurisdiction thereof” qualifier as not including people here illegally or on nonimmigrant visas may not succeed in changing current practice. In fact, I expect the Supreme Court, led by Chief Justice Roberts, will punt on the issue, pointing to Section 5 of the amendment, which says, “The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.” In other words, a law is required, not an executive order.

But whatever the immediate outcome, the president has already succeeded in bringing the citizenship question to the center of our political debate.

The constitutional and philosophical arguments against conferring citizenship automatically to anyone and everyone born on U.S. soil, as made by Edward Erler, John Eastman, and many others, are self-evidently correct. In guaranteeing the citizenship of newly freed slaves, the framers of the 14th Amendment certainly did not foresee mass illegal immigration—let alone the mass admission of tourists and foreign students—and the U.S.-born children resulting therefrom. They would have utterly rejected our practice of delegating the future make up of the political community to lawbreakers who have no right to be in the country, which makes a mockery of the very notion of self-government.

Despite its manifest defects, our longstanding practice of conferring citizenship on everyone born in the country (except for the children of foreigners with full diplomatic immunity) was manageable when numbers were low. Though no one put it quite this way, the downsides of the practice were outweighed by the advantage of simplicity, and the immense political and practical challenges of moving to a more modern system of determining citizenship.

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[Read the rest at The American Mind]