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.

Comments

[Christopher Graves]

Wonda raised the issue of whether a nation has the right to refuse foreigners admittance. The answer is yes. When a nation is settled and its citizens continuously make improvements on the land as their government erects boundaries and protects them, the nation's citizens have established a property right to the nation. Similar to a club, the nation can lay out the criteria for who may join it as a member.

While abilities and intelligence might be reasonable criteria for admitting foreigners on a pathway to citizenship, cultural, linguistic, and ethnic similarity with the reigning social milieu are also reasonable criteria for citizenship, especially when considering sizable numbers of immigrants. As German Chancellor Angela Merkel has recently observed, egalitarian pluralism within a nation is a recipe for social fragmentation and conflict.

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[Svetlana]

Thanks for another amazing blog entry.
The question raised here is very valid and instead of debating on the issue of whether immigrants should/shouldn't be allowed US citizenship by birthright, I suggest we can put additional clauses to allow birthright citizenship; clauses such as the child born in US has spent at least 5 years or has finished his/her elementary education in US gets US citizenship.
America is what it is today due to the hard work of immigrants; those who were born here and worked hard for this great nation.

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[T Evans]

And, that is the paradox of capitalism / liberalism and borders...

If everyone is free and equal under a capitalist economy, then why would there be borders?

[Christopher Graves]

T Evans, how does freedom and equality lead to open borders or no borders at all? Would you please clarify how you are defining 'free' and 'equal'?

In classical liberalism, people have an equal right to have their rights respected. Rights are defined in terms of a private sphere over which each individual has exclusive control. Individuals are free only within the bounds of their rights.

As I suggested above, people can group together and establish a nation as they can voluntarily form other associations such as a club. The members or citizens of the nation can then decide who to admit as members. So, other people who "crash the party" have no right to enter another nation unless invited. Excluding people who are not members of the association does not violate anyone's rights nor does it unjustly treat anyone as less than legal or moral equals.

[Jack]

In theory T. Evans makes an interesting point: After all if one really is a "capitalist" the world SHOULD benefit from the free movement of labor to its "highest and best (most efficient) use" just as we do within our nation.

That MIGHT be a Utopian goal for a far distant future but as we emerge from nation-states it would be chaotic if done too soon. As yet we don't know whether EU will work and on some days one wonders if the US would have been better off as several nations.

Actually it brings up the question of today's seeming over-reliance on "capitalism" and "the market" to solve all the problems efficiently.

For example, while some may be content to let "the market" create (ruin?) the next LA, Hong Kong etc, while others, say in our not-yet-ruined Northwest and other regions may favor tailoring land use planning more closely to the carrying capacity of their regions and limit immigration.

If some used land use planning as a limitation would others, Japan? Israel? who may favor cultural similarity as their criteria be wrong? Even the US with its claims of embracing diversity maintains a much "easier" border with, similar, Canada than with Mexico........ or Cuba.

As transportation improves (like the new railway through the Caucuses giving the M/E access to Europe) and wage gaps continue widen the migration of labor (and Ha! capital!) will be troublesome issues for a very long time.

[Christopher Graves]

Jack, I appreciate your ruminations on efficacy and the labor market. There is a tension in classical liberal thought between rights and utility or wealth maximization. The former is focused on a just process while the latter is focused on achieving specified social results. It is the difference between J.S. Mill's and Immanuel Kant's political philosophy. Judge Posner and Robert Nozick more recently took up this difference in a contemporary setting.

I also appreciate your musings on whether the U.S. should be split into separate nations. Your points on local controls such as land use are also intriguing. Along these lines of local control, I disagreed with the recent Supreme Court ruling on gun control in McDonald v. City of Chicago. It seems that people can band together in communities as they agree to implement their rights in ways that meet the needs of their contingent circumstances.

[T Evans]

Crashing a pre-existing "nation" should of course be considered "criminal."

Perhaps, birthright citizenship, then would be legitimate only if one could give evidence of 600 years of ancestral rights to american soil. Thus, one can claim legitimacy to birthright citizenship if one is a direct descendent of original nations.

[Christopher Graves]

T. Evans, every nation has suffered invasion and most have been conquered at some point in the past. While some injustices might be able to be corrected to some extent or reparations be paid, the legal doctrine of prescription leaves things in place for the sake of stability and continuity. Because it is impossible to right every wrong of the past throughout the world does not and should not make the present groupings of people and their lands up for grabs.

The issue you raise of the European settling of the Western Hemisphere is troublesome. The Indians, or Native Americans, did not set up boundaries and protect them as they systematically used and maintained the land. So, when Europeans settled in areas where the Indians were not using the land nor protecting it, it can be argued from a Lockean perspective that the Europeans were justified in staking out claims in those areas as long as they respected the Indians' territory that the Indians were currently living off of. European Americans' actions were frequently morally unjustified such as Andrew Jackson forcing the Cherokee off of their territory in North Georgia. In those cases that can be identified, reparations should be made.

Your comments touch on a fundamental problem with globalism and imperialism. That problem is that people of different cultures cannot live side-by-side with one another. For example, the way that I have dealt with the points that you raised in regard to the settling of the U.S. is imbued with a philosophy and a way of life that is at odds with the economic system and way of life of the Indians even if the basic principles that each way of life was based on are universal. The way these principles are implemented by different people in different settings can be incommensurable with one another. One way of life in a particular geographical area is likely to become dominant over time and eradicate or marginalize the other.

A related problem present in capitalism is that it breaks down traditional ways of life and the natural protective barriers between nations and cultures as world-wide capitalism integrates peoples and cultures. Karl Marx observed this process to be taking place in his time and it has only accelerated in ours. This process cuts people loose from the traditional moorings producing what Marxists term atomistic individualism and what F.A. Hayek has termed false individualism. As we are discovering, this grinding down of indigenous ways of life produces a plastic, ungrounded way of life in which the bulk of people feel alienated from one another since they have nothing in common. Social capital that informally facilitates human cooperation disintegrates in these modern settings. We are seeing that people are not fungible as if they were mere variables in equations.

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[jerseycityjoan]

It seems to me that both Becker and Posner are willing to keep the status quo: continuous illegal immigration followed by periodic amnesties. The economic and resources demand time bombs of continued mass immigration gets buried as the next generation is born and immediately granted all the privileges of US citizenship.

Come on. We're already supposed to have 100 miliion more people in less than 50 years, mostly due to immigration (both legal and illegal).

To do nothing is to make the problem that much worse for later generations. We're already handing them a huge problem; how can we do nothing and guarantee that things only get worse?

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Its my opinion that once found to be illegal immigrants both parents should be deported. As far as the child is concerned the parents should be given an option to take the child back to their country with them or given up for adoption to a a legalized family member or another u.s.a citizen family. Immigrants are literally taking our gratitude to the extreme. Deport them and use our money on our citizens.

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