What settled it for me, years ago

[aadler]

When Trump announced the end of birthright citizenship … well, it’s easy to say something like that, isn’t it? Pushing it through the blizzard of lawsuits and countersuits and protests and a still-at-least-a‑bit-squishy Supreme Court is a different matter.

The biggest problem with the 14th Amendment is that it was sloppily written. It was brought in for the explicit purpose of preventing the defeated Democrats — defeated in an actual war, not in any political battle — from denying citizenship and/or voting rights to the former slaves a mostly-Republican coalition had just finished freeing. Actual contemporary writings, and some specific legal decisions, make it clear that just ‘being born on U.S. soil’ was not enough to confer citizenship; if that had been the case, then it wouldn’t have been necessary, in 1924, to pass a subsequent act recognizing American Indians (‘Native Americans’, as if all the other Americans born here aren’t native) as citizens. The most important phrase of the amendment is that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens …” This is what explicitly excludes the children of foreign diplomats, since they’re here specifically to represent their own nations and are subject to the laws of the U.S. (though, because of diplomatic immunity, they mostly get a pass on that) but not truly to the jurisdiction thereof. And that used to be the basis by which it was commonly recognized that the children of people only temporarily (or illegally) within the territory of the United States were likewise not covered.

For me, a simple thought exercise clarifies it.

A foreign family comes to America, legally or otherwise. (For simplicity, let’s go ahead and say from Mexico, though I believe most ‘immigration’ is from elsewhere now, albeit many using Mexico as a transit point.) For whatever reason, they don’t go through the process of becoming citizens during their time here. While they remain in the U.S., a few more children are born. Over time, things don’t work out for them — or maybe there’s some other reason — and the parents decide to return to Mexico, taking their children with them. (Perfectly reasonable; it wouldn’t do for them to abandon their children, would it?)

What happens at the border?

Do we pull out the children who were born here, and tell the parents, “Sorry, we can’t let resident aliens carry American citizens to a foreign country without their consent”? (Since, as children, they’re not considered qualified to give legal consent.)

Do we allow foreign nationals to carry away American citizens just because they happen to be these citizens’ parents?

Frankly, neither one is palatable. If the kids are citizens, that still doesn’t make them property of the U.S.; likewise, they’re not the property of their parents, but who wants to set a precedent that government has more ‘ownership’ rights than the parents do?

The only thing that would make sense would be some recognition that the American-born children didn’t become ‘full’ citizens till they reached adulthood. Honestly, I see several obvious pitfalls in that as well.

One thing about which I don’t have any doubt: you don’t get to reap the legal rewards of illegal acts. If you rob a bank, and use the stolen money to buy a house, you don’t get to keep the house if you’re caught. Likewise, if you give a chunk of that money to charity, the charity doesn’t get to keep it; they’ve done nothing wrong, but it’s still not their property. In the same manner, if you enter the United States illegally, and have a child while here illegally, you don’t get to use your child’s theoretical ‘citizenship’ as a basis on which to stay in a place your own illegal actions made you ineligible to stay, and the child’s ‘citizenship’ is invalidated by the illegality of his/her presence on American soil, regardless of his/her own absence of guilt.

Trump’s executive order, even if it’s upheld, doesn’t actually deny citizenship to those already born here to non-American parents, but only to those born after a deadline (I think) three months from now. That’s lenient beyond anything the law requires … but I truly doubt anyone will be praising him for his moderation. That’s not how things work these days.