The Bogus Case Against Birthright Citizenship

Anti-immigration hysteria has blinded conservatives to their own principles

Like gout, anti-immigration restrictionism is a perennial affliction that comes and goes with the seasons. And with Republicans gaining ground this political season, get ready for a particularly painful bout of it.

Texas Rep. Lamar Smith, a committed restrictionist who now chairs the House Judiciary Committee, is already planning a big push to clamp down on undocumented aliens, especially by denying automatic or birthright citizenship to their children—a right enshrined in the 14th Amendment. Meanwhile, Republicans in five states—led by Arizona—are launching their own offensive to force Congress to repeal this right.

Such calls are not new. What is new is that they are gaining traction beyond a shrill nativist minority. Some conservative libertarians are arguing that birthright citizenship is bad for the country—and some progressive libertarians are arguing that it is bad for immigrants. Not only are both wrong, they can't reconcile this position with their broader commitment to the constitution and limited government respectively. (In this column I will address only the conservatives, saving the progressives for the next.)

The most famous representative of the conservative view is George Will, whose recent column is an odd hagiographic exercise lauding Smith—obviously calculated to pave the ground for Smith's birthright crusade that Will has openly embraced.

Smith is pushing a law in Congress to scrap this right, even though literally no one believes that it would pass constitutional muster. That's because the 14th Amendment is unusually clear about extending citizenship rights to everyone born on American soil except for children of foreign diplomats and American Indians (who belong to sovereign tribes). Eliminating these rights for anyone else will require three-quarters of the states to ratify another amendment.

Remarkably for someone who counsels deference to the original Constitution, Will has few qualms about this. Why? Because the authors of the 14th Amendment could not possibly have meant to extend birthright citizenship to illegal aliens given that no laws restricting immigration existed in1868 when it was passed, he maintains. "Is it reasonable to presume they would have wanted to provide the reward of citizenship to the children of the violators of those laws? Surely not," he declares.

It's even more plausible, however, that if the authors' failed to foresee something, it was not the law-breakers but the laws themselves. Hostility toward immigrants, especially the Irish who arrived in the wake of the potato famine, was certainly around in their time. But they still didn't pass such laws—perhaps because they thought that a country that had borne the sin of slavery to get cheap foreign labor should not erect barricades to keep out voluntary cheap foreign labor!

But if the failure to foresee events offered sufficient grounds for amending the Constitution, then we might as well throw out the whole document and begin anew. Would the Founders have written the First Amendment enshrining the freedom of press if they had known that the Internet would one day allow Wikileaks to release classified documents and jeopardize soldiers in the battlefield? Or the Second Amendment guaranteeing the right to bear arms in a world of cop-killing bullets? Or the Fourth Amendment's injunction against improper searches and seizures in an age of terrorism? Or the Fifth Amendment's prohibition against government takings of private property when rare species are allegedly facing extinction? 

The 14th Amendment was written, among other things, to prevent Confederate states from denying citizenship to newly freed blacks. What comparable injustice would amending this amendment prevent? Restrictionists claim that birthright citizenship encourages pregnant women to illegally sneak into the U.S. for a just-in-time delivery so that their newborns can gain citizenship and later sponsor them for citizenship. They call these kids "anchor babies."

But Time magazine reported last year that of all the babies born in 2008 to at least one unauthorized parent, over 80 percent were to moms who had been in the United States for over one year. Actual instances of "birth tourism," where moms expressly came here to deliver babies on American soil, accounted for about two-tenths of 1 percent of all births in 2006. And most of these moms were not poor, illegal Hispanics—Smith's target group. They were rich Chinese moms on tourist visas.

Nor is it plausible that their intention was to use their kids to gain citizenship for themselves. Kids have to wait until 21 to seek legal status for illegal parents and the parents must typically then wait outside the US for at least 10 years before they can obtain their green cards. About 4,000 unauthorized parents with kids who are citizens can avoid deportation every year. This, then, is the grand illicit citizenship racket that Will & co. want a constitutional amendment to crack!

Conservatives argue that this amendment is necessary to enforce the rule of law. But the first principle of conservatism, constantly deployed against liberal reformers, is that it is not wise to make radical changes to long-standing laws and institutions for small gains. As Aristotle warned in the Politics two-and-half millennia ago: "[W]hen the improvement is small, and since it is a bad thing to habituate people to the reckless dissolution of laws, it is evident that some errors of both legislations and of the rulers should be let go; for the city will not be benefited as much from changing them as it will be harmed through being habituated to disobey the rulers…The easy alteration of existing laws in favor of new and different ones weakens the power of law itself."

Yet, here are conservatives now, disregarding their own wisdom and subverting the rule of law in the name of the rule of law to fight bogus causes.

Shikha Dalmia is a senior analyst at Reason Foundation and a weekly columnist at The Daily, where a version of this article originally appeared.

Editor's Note: This article originally mistakenly stated that kids can seek legal status for undocumented parents only if the parents have lived in the U.S. for 10 years; actually parents have to be outside the U.S. for 10 years. There is also no annual limit on how many parents can apply for legal status.