Birthr-itis

Itis: forming names of inflammatory diseases.

Yesterday Trump threw the birthright gauntlet down, no doubt in response to the pending invasion, that's what it is, headed to the US's southern border. One does not need a military to "invade" a space. In fact the common refrain about someone 'invading one's personal space" is probably the easiest way to understand this. In order to understand the importance of this issue we need to understand where it came from.

Understand that the US is one of two countries that has "birthright citizenship". Every other country requires that either at least one parent (sometimes only the male) to be a citizen or requires both parents to be citizens. In some countries entire racial groups are explicitly denied citizenship. So generally speaking having the citizenship of the country you happened to drop out the womb in is extremely unusual.

So why does the US have birthright citizenship? The answer lies in the Civil War (The War Between States). One of the major issues of the Civil War was slavery. Slaves were considered the property of whomever owned them. Since property has no citizenship, slaves were not citizens of any state or of the Federal body. Upon emancipation, you had a literal stateless population. By 1865 a large proportion of Africans was no longer attached to any particular African state that they could be removed to. It also assumed that any African who WAS attached to a particular state wanted to return. This was a part of the debate at that time about "repatriating" Africans to Africa and the set up of Liberia. This is outside the scope of this entry though.

So what to do with these stateless persons who could not be removed? Grant citizenship to them. Hence the 14th Amendment which reads:

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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

The "born" portion covered all previously enslaved Africans since they had been born in the US (note that a good proportion of Africans at that time were NOT born in America). Emancipated Africans were subject to the jurisdiction of the US just as they were when they were legal property.

There was no, zip, zero intention of this law applying to Native Americans who were considered members of their respective Nations. There was zip, zero intentions of this law applying to persons not in the country legally. Previous legal cases testing this have been those who had been granted some sort of permission to enter.

Today it is fashionable to say that opposition to birthright citizenship is a "White supremacist" talking point. The fact show that generally speaking, even at the height of the Jim Crow era, it wasn't much discussed. Why? Because prior to VERY recently, the US government kept a lid on immigration, both legal and illegal. It was common for both Democrats and Republicans to speak in favor or deportation. Of limiting the growth of immigrant populations. People who arrived at Ellis Island were regularly denied entry. It was understood, across the spectrum that no foreigner had any rights to enter the country without permission from the proper representative authorities.

Now that Democrats, as demonstrated in the previously posted video, want to use immigration as an electoral weapon against their political enemies, they support the idea of foreign nationals being able to use birthright citizenship to change the electoral map. Democrats in some locations want to dispense with the privileges of citizenship altogether.

So the question comes down to whether foreign nationals who were not granted permission to enter the US qualify as "born in the US and subject to the jurisdiction thereof"? I've seen legal arguments that they do not because foreign nationals who are in the US illegally are not "subject to the jurisdiction thereof". That a foreign national who enters without permission is no different, legally speaking as someone who is at the border. That is, they are not legally present in the US, therefore, the "birth" is not "legally" in the US.

I propose a better way to evaluate this situation. In a nod to the gun control people, I'll call it the "common sense" approach.

If a person enters your home without your permission are they automatically regarded as the same as the lease or mortgage holder? I don't know any jurisdiction that would say "yes" to that.

If that person then had a baby in your house that they entered without your permission would that baby now be considered "one of the family" with both baby and parents holding legal rights to inhabit your house? I don't know any jurisdiction that would answer "yes" to that.

This is the exact same argument. the US is the house of the citizens. Foreign nationals enter with our, the citizen's permission. Failing to get that permission does not entitle you to the rights extended to those who were given permission.

And this doesn't include recognition of the birth tourism that is clearly fraudulent means of getting citizenship. Most recently in Queens NY a Chinese birth tourism ring was busted. There is no doubt that the 14th Amendment was ever intended for that.

So Trump's proposed "end" to birthright citizenship may or may not be on shaky constitutional grounds. Certainly no executive order can undo a constitutional amendment. Certainly the lawyers advising Trump (They ARE doing that right?) know this. However; if there is a legal foundation that the 14th never meant to cover foreign nationals who have illegally entered the country. Then the executive order becomes like Obama's DACA. it's not LAW and it doesn't contradict the letter of the law but it is surely right up there on the line and subject to reversal by any other executive order.