American Birthright Citizenship under Republican Crossfire

Under Donald Trump’s influence, several candidates for the White House are demanding the abolition of birthright as a means of acquiring American nationality, an attack that affects a fundamental aspect of American identity.

Is America ready to abolish one of its hallmarks? Ahead in the polls for the 2016 Republican presidential primaries, at every meeting Donald Trump hammers home his message: Birthright citizenship as a means of acquiring American nationality must be abolished. The New York billionaire, whose simplistic slogans really hit home, has for several weeks sustained an unusually violent anti-immigration campaign. He thinks that many Mexican immigrants are criminals or rapists, that a wall should be built between Mexico and the United States, and that Mexicans should pay for it …

English Jus Soli Restored

His attack against birthright citizenship, however, affects a more profound aspect of American identity. Adopted in 1868, the 14th Amendment of the American Constitution states in the first sentence: “All persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside.”

English jus soli was restored by the Americans in around 1780, points out Suzanna Sherry, professor of constitutional law at Vanderbilt University, Nashville. The law, she adds, was passed following the Civil War. Up until then, Americans had just assumed that it was common law. In 1868, Congress adopted the 14th Amendment, reversing the judgment sadly passed by the Supreme Court in 1857, the Dred Scott case, which prevented blacks (freed slaves) from obtaining citizenship. “It wasn’t until 1898 that the Supreme Court clarified their interpretation of the 14th Amendment, over the arrest of Wong Kim Ark, a Chinese man born to parents living illegally in California, to whom the high court conferred American nationality.”*

For Hiroshi Motomura, professor of law at University of California (UCLA) and author of the book “Immigration Outside the Law,” birthright citizenship in the United States is “symbolically a very strong message for equality. To oppose it, especially in the Republican primaries where nuances are not welcomed, is an attempt to seduce a (white) electorate destabilized by the demographic changes which have taken place in America.”* “The United States belongs to a group of 30 or so countries in the world that apply unconditional birthright citizenship,”* explains Stephen Yale-Loehr, who teaches immigration law at Cornell University, Ithaca. “The majority are in the Western hemisphere, like Canada and numerous countries in Latin America. It’s undoubtedly the relative openness of the New World toward immigration which explains it.”* France uses a combination of right of blood and birthright. But there too, jus soli was called into question by Nicolas Sarkozy, president of the republicans, under pressure from the National Front. On June 13, he asked, “Should we reconsider birthright citizenship? This question indisputably may be asked.” England repealed the law in 1983, Australia in 2007 and Ireland in 2005.

On the other side of the Atlantic, Donald Trump considers the current application of birthright citizenship as a magnet for illegal immigrants. On his recent trip to Iowa, he condemned “anchor babies,” a pejorative term describing children born to illegal immigrants in the United States. As far as he is concerned, their births are part of a deliberate strategy on the part of their parents to remain in the country and expedite their journey toward citizenship. The facts disprove his analysis. Between April and September 2011, for example, 46,000 illegal immigrants whose children had acquired American nationality by birthright were deported from the country.

Donald Trump has succeeded in forcing the other Republican candidates to address the theme. Scott Walker, Rand Paul, Ben Carson, Lindsey Graham, Ted Cruz, Rick Santorum and Bobby Jindal are all in favor of the abolition of birthright citizenship. More open on the question of immigration, Jeb Bush, married to a Mexican, fell into his own trap. Criticizing the “anchor baby” phenomenon, he tactlessly clarified that it mostly concerned Asian and Hispanic families. He thus angered everyone by mixing two phenomena — children born of illegal immigrants and of birth tourism that is practiced in particular by Chinese parents who legally come to the United States to give birth in one of the many “maternity hotels” in California.

A Very Expensive Measure

In 2012, 4.5 million children born in the United States had at least one parent classified as an illegal immigrant. In 2008, the Pew Research Center estimated 340,000 children have been born into families of illegal immigrants. To abolish birthright citizenship would have considerable implications. Without a record of births, immigration officials would have 1,001 difficulties in determining the immigration status of the parents of children born in America. The bureaucracy created by such a change would incur billions in supplemental costs. And above all, it would not solve the problem of illegal immigration. According to Suzanna Sherry, “It would require a constitutional amendment to repeal birthright citizenship. But to do so would necessitate a majority of two-thirds in the two Houses of Congress and ratification by 38 out of the 50 states. Suffice to say that such a change is unlikely.”*

*Editor’s Note: This quote, accurately translated, could not be verified.