I wanted to share a few thoughts on questions that are adjacent to or secondary to the question the Supreme Court is being asked to take up today. That is in part because there is no real question they are being asked to take up. Birthright citizenship is the clear, intended and unambiguous law of the federal constitution. One might as well try to complicate or question whether the document creates a federal senate. I have a source and correspondent deep in the federal bureaucracy who is a specialist in a specific area of federal law unrelated to citizenship questions. And even though I’ve written about this at length over the years, by going over developments in this person’s area of law with them it has helped me crystalize my own thinking on this topic.
Almost all of these cases are based on the premise, the working assumption of what can the U.S. Constitution mean if we decide that words or established phrases simply have no meaning and we can simply piece the individual words together based on their dictionary definitions? So what does the “law of the land” mean? Well, it turns out some guy who did a stint at the Claremont Institute and now teaches at some obscure law school has written a bracing new law review article about how it refers to agricultural policy, mineral and agricultural rights and the law of farming. That’s really where we are here.
We’re so far out on the limb of jurisprudential corruption that in cases like these there’s a different way we should frame these arguments and these decisions. Birthright citizenship is the law of the land. It has been since 1868. Nothing this corrupt body decides will change that. It may produce a period of constitutional interregnum in which the federal government refuses to recognize the rights of some American citizens. That won’t make them any less American citizens any more than Trump saying up is down changes the laws of gravity. This may seem like a theoretical or meaningless point. But it’s not. Fighting Trumpian authoritarian nationalism means that there is a high premium on keeping focused on the reality of the situation before you, not falling victim to the new day’s game of three card monty or other flimflam and razzmatazz.
Let me now mention a more practical point.
Birthright citizenship is the unambiguous and certain law of the land. It is also good policy. What is less appreciated is that it undergirds the entire citizenship system in the United States, a country that keeps very, very little record of who is and isn’t a citizen in the first place. The only people who really have any clear record of their citizenship are naturalized citizens. You or I who were born in the U.S. might appear to have those. We have a passport or maybe some other document that you can only have as a citizen. But that is almost always because we said we were a citizen or we provided some document that only had any significance on the basis of birthright citizenship. Usually, of course, that’s a birth certificate. That’s where the factual conversation ends. It is the lynchpin that makes the entire U.S. citizenship system work in the absence of really any record keeping.
Let’s imagine there’s no birthright citizenship. And to be clear, it’s a little hard (though they’ll certainly find a way) to imagine that SCOTUS would find that everything everyone (amendment writers, legislators, justices, law professors, citizens) thought for more than a 150 years was wrong. But critically, it only started being wrong today. That’s not how actual jurisprudence works. But let’s start with my birth certificate.
Born in the early hours of Feb. 15 1969. That’s the basis of my citizenship. Absent birthright citizenship, how do we know? Really we don’t. It says nothing about the citizenship status of my parents. The father listed on the document had ancestors in the U.S. going back to the 1600s, many all the way back to the 1630s. The mother listed was born to a woman who arrived in the U.S. from Poland/Lithuania as a child in May 1921 just ahead of the first wave of immigration clamp downs after World War I. I’m not certain she was ever naturalized as a citizen and I think there’s a good chance she wasn’t when my mother was born in 1943.
Mine is one of the less complicated citizenship questions — the most recent immigrant in my family tree arrived over a century ago. But there’s nothing on my birth certificate that settles the matter. There’s at least some level of ambiguity just one generation back. And everyone else, generation to generation back, is also only a citizen based on birthright citizenship. At best, clarity about citizenship, absent birthright citizenship, requires a lot of genealogical research. Certainly more than is remotely plausible for a population of almost 350 million. And it would be quite a lot of research to have to wait on while you’re in an ICE gulag.
Quite apart from the constitutional and civic merits, the whole fabric of U.S. citizenship falls apart without the anchor of birthright citizenship.