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10/27/2015

A Nonoriginalist Challenge to Birthright Citizenship for Illegals: Nonoriginalist Arguments
Mike Rappaport

In my previous post, I set forth an interpretation of “subject to the jurisdiction” of the United States that is different than what I regard as the original meaning.  Under this nonoriginalist view, the phrase means subject to the exclusive jurisdiction of the United States.  Since the children of parents who are citizens of another country, including illegal immigrants, are subject to the jurisdiction of those countries, those parents and children would not be subject to the jurisdiction of the United States.  Interestingly, this interpretation is very similar to those who claim that the term only covers those who do not have allegiance to another nation.

Here I want to offer three nonoriginalists arguments for this interpretation – the type of arguments that are typically made by nonoriginalists.  First, there are strong nonoriginalist reasons for not following the original meaning as to birthright citizenship for the children of illegal immigrants.  At the time of the 14th Amendment, there was not an illegal immigrant issue, since there were essentially no federal laws restricting immigration.  Thus, the Framers of the Amendment were unlikely to have had that issue in mind.  Nonoriginalists typically argue that the decisions made by the Framers are more relevant when they addressed the actual issue and less relevant when they failed to anticipate a matter.  Thus, the original meaning is not weighty.

Second, there are strong normative arguments against birthright citizenship for illegal aliens (and for many others).  Normative arguments are, of course, one of the mainstays of nonoriginalist interpretation.  One common argument is that conferring citizenship on the children of illegal aliens obviously provides an incentive for more illegal aliens.  A less common argument against conferring citizenship of the children of noncitizen legal residents is that it makes it more difficult to have guest worker programs, since those workers may have children while they are in the United States.

But the strongest normative argument against conferring citizenship on the children of illegal aliens derives from the fact that, in the modern world, American citizenship is a tremendous privilege.  It gives access to high wage markets as well as welfare state benefits.    Given these privileges, the normative question is how we should allocate this privilege of citizenship.

It seems obvious that citizenship should not be granted simply based on the accident of being born in the United States.  Why would one want to allocate citizenship to children merely because they were born here as a result of their parents having come here illegally?  As I noted in an earlier post, there are a variety of ways one might want to allocate citizenship (and immigration) – based on quotas from countries, based on skills contributed to the United States, based on years already lived in the United States – but none of those are based on the simple accident of being born in the US.

Finally, a third type of nonoriginalist argument is to look to the existence of laws throughout the world, especially that of “civilized” countries in Europe.  A strong trend as to these laws suggests that normatively the United States ought to follow it.  Significantly, the only two developed countries in the world that have birthright citizenship are Canada and the United States.  None of the European countries have it and several developed nations have repealed it in the last generation.

Thus, there is a strong nonoriginalist argument for reading the 14th Amendment not to confer birthright citizenship, at least to the children of illegal aliens.  Nonoriginalists might not agree with this argument, but it is hard for them to argue that the argument is illegitimate, since they accept this type of argument.  In the end, one can’t have it both ways.  If one favors the freedom that nonoriginalist interpretive gives to an interpreter, then one must live with the way that those who disagree with you would use that interpretive freedom.