The Controversy over Birthright Citizenship—Posner

Recently, as an aspect of growing hostility to immigrants to the United States fueled by our continuing economic crisis, questions have been raised concerning the desirability of what is called “birthright citizenship.” The term refers to awarding citizenship to everyone born in the United States (with a few very minor exceptions, such as the children of accredited foreign diplomats and of foreign heads of state on official visits to the U.S.), including the children of illegal immigrants whose sole motive in immigrating may have been to confer U.S. citizenship on their as yet unborn children. This rule—though thought by some (not by all) to be compelled by section 1 of the Fourteenth Amendment, which provides that “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,” but which in any event is codified in a federal statute which provides that “the following shall be nationals and citizens of the United States at birth: (a) a person born in the United States, and subject to the jurisdiction thereof”—can indeed be criticized. “The Federation for American Immigration Reform estimates that 165,000 babies are born each year in the United States to illegal immigrants and others who come here to give birth so their children will be American citizens.” Kelley Bouchard, “An Open-Door Refugee Policy Has Its Critics,” Maine Sunday Telegram, June 30, 2002, p. 11A. There is said to be “a huge and growing industry in Asia that arranges tourist visas for pregnant women so they can fly to the United States and give birth to an American. Obviously, this was not the intent of the 14th Amendment; it makes a mockery of citizenship.’” John McCaslin, “Inside the Beltway: Rotund Tourists,” Wash. Times, Aug. 27, 2002, p. A7.

We should not be encouraging foreigners to come to the United States solely to enable them to confer U.S. citizenship on their future children. That abuse provides an argument for abolishing birthright citizenship. A constitutional amendment may be required to change the rule, thoiugh maybe not, see Peter H. Schuck & Rogers M. Smith, Citizenship Without Consent: Illegal Aliens in the American Polity 116–17 (1985); Dan Stein & John Bauer, “Interpreting the 14th Amendment: Automatic Citizenship for Children of Illegal Immigrants,” 7 Stanford L. & Policy Rev. 127, 130 (1996), since the purpose of the rule was to grant citizenship to the recently freed slaves and the exception for children of foreign diplomats and heads of state shows that Congress does not read the citizenship clause of the Fourteenth Amendment literally. If birthright citizenship is not commanded by the Constitution, it can be eliminated by amending the statutory provision that I mentioned.

But closing the loophole that encourages foreigners to come to the United States solely to make their future children U.S. citizens would not address the larger question of birthright citizenship. For undoubtedly most children born in the United States to illegal immigrants are not born to persons whose motive for immigrating was based in whole or significant part on a desire to have U.S. citizen children.

Most countries outside the Western Hemisphere do not recognize birthright citizenship; instead they base citizenship of children on the citizenship of their parents or other lawful connections between the parents and the country (ethnicity or religion, for example). Should we adopt that approach, by constitutional amendment if necessary? (It may not be necessary, as I have suggested, but I take no position on that question.) The problem is that though it would discourage people from coming to the United States for the sole or main purpose of having children who would be U.S. citizens, it would probably on balance increase the size of the illegal immigrant population. The United States, at least when the economy is healthy, is a magnet for illegal immigrants, most of whom manage to avoid being deported. Their children born here are U.S. citizens despite the parents’ illegal status. If birthright citizenship were abolished, these children would not be U.S. citizens, at least not automatically as at present. Nor would their children. One would have, as in some European countries, generations of illegals—persons who had never lived anywhere else, who could not feasibly be deported (and to where?—the country of origin of their grandparents, a country with which they had no connection, and the language of which they did not speak?). If many illegal immigrants do not become well assimilated in the United States (many do, however), at least their children born here probably do. And that is a considerable benefit to the nation that eliminating birthright citizenship would undermine, perhaps eliminate.

If most illegal immigrants were deported within a few years of their arrival in the United States, the problems created by birthright citizenship would largely disappear; if the parents had children born here, still they would be young children and the parents would bring them back home with them when they were deported and most of these children, grown to adults, would not come to live in the United States though entitled to do because they were U.S. citizens. But illegal immigration to the United States has overwhelmed the resources that the political process is willing to allocate to exclusion and deportation (given demand by U.S. employers for immigrant labor, legal or not), and as a result many illegal immigrants have children who grow to maturity in the United States and know no other country. For to be illegals would create what in Europe is called a “helot” population, helots in ancient Greece having had an ill-defined intermediate status between slaves and free citizens.

Concern with birthright citizenship is probably misplaced, because the most serious problem of U.S. immigration policy is not who should be excluded but who should be admitted, and that problem should be tackled first. We are handicapping our growth by refusing to allow easy admission of those immigrants who are most likely to foster economic growth by virtue of their IQ, skills, or wealth. Instead we continue to emphasize lotteries and family-reuniting as the principal criteria of lawful immigration.

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For a great overview of the Birthright Citizenship debate, and an explanation of why grants of citizenship to children born to illegal aliens has never been adequately debated by the political branches, see:

"Birthright Citizenship in the United States: A Global Comparison"
Center for Immigration Studies
http://www.cis.org/birthright-citizenship

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