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Dan Oblinger's avatar

Alex,

I am not convinced the many good points you make in this article support the very broad conclusion drawn in its title. As a specific example:

we know there are cases where folks come to the USA specifically in order to gain citizen for their child, as well as undocumented folks that have children soon after being here. Both of these provide a pathway to citizenship not based on merit or any other consideration.

Perhaps, one could leave birthright citizenship as a default that would not need to be proven by any person, but rather assumed. Then carve out an exception is added where the USA must show that the undocumented parents has been in the USA for less than 3 years or some number like this. If the USA cannot show this, then their child is a citizen.

This would avoid the situations you mentioned, as well as ones like in Japan where generations of people live in the country and never become citizens.

Such a carve out would give the USA a narrow period of time to find and remove a non-citizen. Failing this then it must assume the responsibility of the child as a citizen.

For me this preserves the benefits of birthright citizenship, while also removing a currently existing perverse incentive to break the law and be here illegally.

What is the downside of such a narrow carve out?

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ScottC's avatar

A few observations:

You said: "Birthright citizenship has been the norm in the United States since before the passage of the 14th amendment"

Prior to the ratification of the 14th A, citizenship was established by individual states, and each state had its own laws for establishing citizenship. (Indeed, that is one of the very reasons for the passage of the 14th, ie to remove this power from the individual states.)

Is there any evidence that, for example, the child of a New York citizen/resident who happened to be born while its mother was passing through New Jersey, was considered a citizen of New Jersey and not New York? If not, then the claim that jus soli was the "norm" prior to ratification must be wrong.

You said: "There’s already American law for inheriting citizenship that is referred to as jus sanguinis. It is intended for the children who are born to US citizen parents overseas, but it can be quite cumbersome. It's certainly more complicated than showing a birth certificate that says you were born in the United States."

In what way is it "cumbersome"? And no, it isn't "more complicated" than showing a birth certificate. They just show their US passport, which every child born overseas necessarily has to get if they ever want to travel outside of the country where they were born, including back to the States. Once they have that passport, it is exactly as simple as showing a birth certificate.

Also, speaking of children who are born to US parents overseas, it is probably worth pointing out that to read the 14th amendment as granting unrestricted birthright citizenship is to give the children of illegal immigrants a greater, ie Constitutional, right to US citizenship than to children born to US citizens overseas, who, according to that reading, are not covered by the 14th amendment, and thus whose citizenship rights are merely statutory and could easily be removed by a simple vote of Congress. Surely that is not what the ratifiers of the 14th intended.

You said: "Then what happens to the share of children born here who are stateless, the people born in the US who are ineligible for American citizenship and don’t have it from their parents’ home countries?"

Which countries deny citizenship to the offspring of its citizens if they are born outside their home country? For whom exactly is this a potential problem?

You said: "Those citizenship laws created an assimilation crisis after World War II when post-war guest worker programs admitted many Turks, Tunisians, and Portuguese to work in the booming economy. Many of these workers stayed and had children who weren’t automatically citizens."

Two things. First, a key word there is "admitted". They were invited to Germany, they did not sneak in illegally. Second, the problem wasn't that they weren't automatically citizens. It was that they were prohibited from ever getting citizenship. (This is something you acknowledged in your 2016 article on this topic, but which you have omitted here.) Such a prohibition does not exist in the US for people who have come to the US legally. Once you are granted permanent residency, you can apply for US Citizenship. This avoids the problems of Germany that you raise. Birthright citizenship is not needed to avoid it.

You said: "Furthermore, revoking birthright citizenship will likely worsen assimilation outcomes for the children of immigrants who aren’t born citizens."

Not as long as there remains a naturalization process by which immigrants who make the US their permanent residence can become citizens. If they want to assimilate, they can. Birthright citizenship is entirely unnecessary for this purpose.

Quite literally the only people it is "necessary" for with regards to assimilation are the children of illegal immigrants. And it seems somewhat strange to want to assimilate into the country the very people that the laws of the country, if followed and enforced, would prevent from being there in the first place.

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