The nativists’ attack on birthright citizenship, not surprisingly, has at its heart a big lie.
That lie is clearly stated in H.R. 140, the legislation introduced in the U.S. House, and sponsored (so far) by 45 members, to “correct” the interpretation of the 14th Amendment. In Section 2(b) of the bill, it reads: “Acknowledging the right of birthright citizenship established by Section 1 of the 14th Amendment to the Constitution … .”
The lie is so very big that it is not immediately obvious: The lie is that birthright citizenship was “established” by the 14th Amendment. Birthright citizenship was not established by the 14th Amendment, but by long and continuous common law practice since before this nation’s founding.
Birthright citizenship has deep roots in American and colonial English jurisprudence, extending back to Calvin’s Case of 1608. Birthright citizenship is the common-law rule of jus soli (the law of the soil), which has been the common law rule of citizenship in America since we were English colonies, and then continuously throughout our nation’s entire 235-year history.
The only exceptions have been that the children of foreign diplomats, the children of members of invading armies and, following the Dred Scott v. Sandford decision of 1857, persons of African descent were not automatically citizens. The only reason the 14th Amendment was passed was to overturn that terrible U.S. Supreme Court precedent—not to “establish” birthright citizenship in general, but only to clarify that birthright citizenship would also apply to the children of slaves, former slaves and those of African descent.
Anyone born on American soil since before our country was even a country was, and always has been, a citizen, either of the United States, or, before independence, of England. The Civil Rights Act of 1866 and the 14th Amendment (adopted in 1868) merely restated the existing common law of birthright citizenship; they did not create the rule. The intent of both the legislation and the amendment was to make it clear that Dred Scott was overturned.
What the “anchor baby” activists want is not to “clarify” any “mistaken” interpretation of the 14th Amendment, but to use the lie that the 14th Amendment “established” birthright citizenship in order to overturn nearly 400 years of continuous common-law practice in America and deny citizenship to innocent children born of parents of whom they disapprove.
Do not buy into the big lie: The 14th Amendment is not now, and never has been, the basis of birthright citizenship. The Supreme Court has, indeed, interpreted the 14th Amendment as consistent with the existing common law rule of jus solis, clearly stating that the intent was to make every person born on American soil, including former slaves, an American citizen—but that is not the same as saying that the only reason for birthright citizenship is the 14th Amendment and the court’s interpretation of it.
Every child born on American soil, save for diplomats and members of occupying armies, is an American. That is now, and always has been, United States law. That law cannot be changed by merely reinterpreting the Immigration and Nationality Act’s legislative enactment of the 14th Amendment, because the 14th Amendment did not “establish” birthright citizenship any more than Newton “established” gravity.
As Hitler and Goebbels recognized, to lie effectively, you must tell a big lie. Only a lie so complete and audacious that the people cannot believe that you would dare tell it, were it not true, can succeed in re-making reality. The nativist and racist inheritors of that legacy here in America have certainly embraced the central importance of the big lie to successful propaganda operations. Don’t let them get away with it.
This article appears in Feb 10-16, 2011.
Well done, Mr. Bryan. This may well be the most thoughtful, concise article on birthright citizenship I’ve read in any publication anywhere. It amazes me how the Right likes to speak of “American exceptionalism”. That is, of course, until it comes time to actually be exceptional.
Interesting analysis, but it is not the core issue.
Regardless of whether jus soli was, indeed, U.S. common law before enactment of the 14th Amendment, the relevant debate is, and should be, whether it ought to be the law now. The author admits that the place of birth does not determine the citizenship of children whose parents are (a) foreign diplomats and (b) part of an invading army. This is the case, in part, because (a) foreign diplomats are subject to our laws only on a limited basis and (b) foreign armies are here for hostile purposes, in direct contravention of our sovereignty. When people are present in our country lawfully and are fully subject to our country’s laws, a cogent argument can be made that jus soli ought to pertain.
But that’s not the problem. The current controversy involves people whose mothers were not lawfully present in the U.S. at the time they were born. When the very presence of a person in the country is unlawful, the argument in favor of jus soli is considerably weaker.
Having said all of this, I don’t support the current efforts to “reinterpret” the 14th Amendment. The current interpretation is, I think, the most sensible reading. The better debate is the one that deals directly with the central issue: whether changes in our immigration patterns warrant a further amendment of the Constitution.
Well said, Sun Dried.
The law must be changed to halt the process of illegals coming across our border to have their “anchor” baby and then returning to Mexico. That baby then gets all the rights of US citizenship including welfare, healthcare, even education, etc. Checks are sent to Mexico to support this “anchor” baby, money we cannot afford to send into a foreign country.
Many border town hospitals cannot afford the medical expenses for these mothers who show up in the ER and dump out their baby on US soil! Some hospitals have been forced to close their ER because of the expenses which puts a burden on the US citizens who live in these towns.
“Many border town hospitals cannot afford the medical expenses for these mothers who show up in the ER and dump out their baby on US soil! Some hospitals have been forced to close their ER because of the expenses which puts a burden on the US citizens who live in these towns.” Got some sources for these “facts”? Also, this is the first nativist argument I’ve read that the mother risks her life getting into the U.S. to have her baby but then returns to Mexico to “collect checks”. Where to even begin with such absurbity.
Micheal, your arguemnt is circular…and is thus disregarded.
If English Common Law is accepted law of the land, then why does the 14th amendment grant citizenship to those born in our borders?
If English Common Law is not accepted law of the land, the 14th is the only mention granting citizenship to those born in our borders, and hence its meaning is up for debate.
You’re free to disavow the birthright claims in the 14th…I’m sure the ‘nativists’ as you call them would agree. Odd strategy for you to follow however….
The Reconquista is in fact AN INVASION.
Thank you for clarifying that the children of the invaders are not citizens.
Interesting thought….they are not welcome, they are not here legally, they can be rounded up and deported (in fact, the only argument for not doing so is the scale of the endevor)…therefore they are invaders.
QED
The most disturbing thing about this analysis is not the argument, which may or may not be perfectly applicable to the ‘anchor baby’ situation. The problem is that eagerness to label every mistake or incomplete interpretation a lie. To say that intelligent people of careful thought are mistaken in their conclusion that the 14th amendment applied only to slaves is perfectly proper, if you believe that. To label them liars – which implies that their conclusions were made in deliberate dismissal of the ‘perfect’ background analysis the current pundit gives – you can hardly claim to advance civility in discourse. Incidentally, without contradicting his argument, one should point out that the anchor baby problem arises mainly when the policy is observed to be used deliberately to take advantage of social programs for parents and siblings, and to be able to send money back to their homeland rather than using their new found freedoms to build this country.
I continue to be amazed at the facile attempts to justify an essentially rascist position in supposed legalese. We all know the only issue here is objection to Mexicans, not Canadians, etc., just as it was the Chinese in an earlier day. Quit pretending. It’s the same as saying the Civil War was only incidentally about slavery. I’m really tired of hypocrisy.
GRBL, IMHO, and certainly in my personal case, YOU ARE WRONG ! ! ! !
I am opposed to illegals from any country infiltrating the United States, abusing the taxpayers by obtaining all the free Govt. services our stupid Govt. is so willing to give them.
The USA has a quote of immigrants it allows each year. Anyone entering the country that is not approved by the Immigration authorities and refuses to fulfill the requirements of eventual citizenship in the USA is illegal. What is so difficult and hard to understand about that?
For you to say the reason for the current illegal turmoil is because we object to Mexicans only is personally insulting to me. I believe in obeying the law and find it difficult to tolerate anyone who doesn’t; no matter which country they are from.
The First Americans were opposed to illegals from any other country entering their land, abusing it and breaking their laws. Fortunately most of them died by unseen diseases before they could stop it. And yet they stay where they are obviously no longer wanted. Maybe we could get them to emigrate somewhere else. I hear New Zealand has lots of land.
In the meantime, we can solve this problem by arresting the babies born illegally. They are not likely to put up much of a fight. Where do they get off thinking anyone in America wants to share? I thought my first point made that abundantly clear. It’s like someone sees the human race as all one species.