Birthright Citizenship and the Danger of Selective Principles
I remember once upon a time I was unsure of their meaning, so I looked up the words conservatives and revisionist, especially when it comes to the courts. In a nutshell, I came to understand Conservatives are those who want to interpret the Constitution as if nothing had changed in the centuries since it was written. Like the steam engine was not a thing, or the internet is just another scroll. I remember hearing Republicans and supreme court justices such as Scalia and Thomas arguing passionately about the sacredness of the document, how wise the writers were and expected what they wrote to stand the test of time.
Whereas revisionists argue much has changed. That, though the essence of the document need not change, the meaning can and should be adapted to our times.
Nowhere else was this distinction more feverishly debated than around the Second Amendment. The conservatives would have you believe the framers could have anticipated a M16 and still made no exception for it when they enshrined the right to bear arms.
So imagine my bewilderment upon recently hearing and reading about the recent supreme court ruling over the constitutionality of birthright citizenship.
In what has been described as one of the most plainly written amendments, the “conservative” justices argue the law is not as written, that we shouldn’t take the words at their written meaning. On the other hand, the democratic leaning justices, whom we are told were revisionists, want us to read the text plain, and interpret it precisely how the writers wrote and therefore intended.
What is going on? Did I misunderstand the two ideologies when I looked them up or listened to the judges themselves describe them? Or somehow somewhere the justices have switched sides?
No, I don’t think so. What is coming into sharper focus in the last few years watching the supreme court and Republicans (in this and other regards like role of the federal government vis-à-vis states) is that there is really no such thing as ideology. Judges, like politicians, have an agenda. Perhaps loosely based on an ideology, but very much beholden to a particular vision or favor. They go where the agenda necessitates. Right now it seems the agenda for the conservative wing of the court is to get Trump what he wants. Or a need to remake America into something like what it once was demographically: at least without any of the atonements it’s tried to make since the Civil War.
If the democratic wing of the court was also true to the ideology of viewing the constitution through lenses that take into consideration today’s reality, they would allow for something less than the universal application of the 14 Amendment as it is written.
Because today pregnant women show up at US airports in their third trimester for the sole purpose of coming to have their babies in the US. So called birthright tourism is definitely a thing. Beyond what I have heard about this being a popular thin among Chinese elites, I know firsthand African elites, especially the political class, take advantage of the loophole. That’s what it is you know, a loophole.
Could the writers of the 14th Amendment envision this abuse? No more than they could envision algorithms influencing elections. If they did, would they have still written the law as they did? In her concurring opinion, Justice Ketanji Brown Jackson tried to make a case that they did—on account of particular revisions to make sure recent immigrants were included, which included pregnant women onboard arriving ships. But I don’t think so. What we have today is not the same thing as a pregnant immigrant arriving in New York in 1869.
Honestly speaking, what is happening today is not fair. As an immigrant and naturalized citizen myself, I’m not ok with birthright tourism. Someone—who perhaps has never been to the country and has no real intention of settling here, but just trying to give their kid an option in case they need it later in their lives—should not be rewarded with something others struggle and spend years trying to get. For one, these parents don’t pay tax while they are here to give birth or during all the years they live back in their home country with their “American” child/children. Yes, they may be subject to the jurisdiction at the time they are here giving birth. But why give them a permanent privilege for such a temporary status?
If liberals truly believed in a living Constitution, they could reasonably argue that modern birthright tourism creates circumstances the framers never imagined. Meanwhile, originalists might be expected simply to follow the text.
But does this mean you throw the baby out with the bath water? Of course not. As others have said, birthright citizenship is a bedrock of what is America. A very high percentage of Americans trace their citizenship back one or two generations to this privilege. Irish, Italians, Swedish, Norwegians and many others gained citizenship for their children in this manner. And yes, some came when they were already pregnant.
Let’s call a spade a spade. It was not an issue back then. It’s only becoming one now because we are not talking about immigrants from Europe. This is the elephant in the room. The agenda is to redefine not only who is an American, but who becomes in the future. This is behind the redistricting decision and affirmative action in college admission for example. I think some on the Republican corner are so worried about White Americans losing their majority and the power this conveys, they are willing to do anything, including changing what America is. But truth is the truth, no matter how inconvenient; injustice is wrong no matter how it affects your argument. When we refuse to acknowledge this, we risk losing ourselves and the America we fight for. Since birthright citizenship tourism wasn’t really the case in front of them, and the ruling couldn’t be in part, this is not for the Supreme Court to solve. However, I think Congress should look at how this loophole may be patched without changing what is fundamentally American.
