Guest Commentary

There's a big lie at the heart of the attack on birthright citizenship

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.

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