What's the Deal with Birthright Citizenship? [INTERVIEW]

Immigration has been in the news a lot lately. Have you noticed? Goodness gracious. Well, you may have heard chatter about "birthright citizenship" after Republican presidential candidate Donald Trump announced he wants to do away with the practice.

So what is "birthright citizenship" anyway? How'd the U.S. come to adopt it? And what does it mean to think about it going away?

Well, whenever I want to cut through all the noise and find out what's going on in the world of immigration, I turn to my friend Matthew Soerens. He is co-author of the book Welcoming the Stranger: Justice, Compassion and Truth in the Immigration Debate, and he works with World Relief, helping U.S. churches consider a Biblical approach to immigration.

Matt is wicked smart and totally humble, so I highly recommend following him on Twitter for all the insights. He was gracious enough to let me interview him, and his responses were jam-packed with so much good info, I'm going to share it in more than one post.

For today, he offers some history and perspective on birthright citizenship. I hope you find the responses helpful as we navigate this topic in the public sphere.

Q: Can you tell us exactly what is birthright citizenship?

Matt: Birthright citizenship basically means that if you are born within the United States, you are a U.S. citizen. (Technically, children of diplomats, who are not subject to U.S. law, are a very tiny exception.) It’s why, throughout the last century, a birth certificate has been sufficient to establish that a person was a citizen, even if one or both of their parents was present in the country unlawfully.

Q: How did birthright citizenship come to be in the U.S.?

Matt: The U.S. has always practiced birthright citizenship, which goes back to the common law practice of jus soli, meaning that citizenship is based on the soil on which one is born, not on a child’s parentage. A number of other countries—mostly in the Western Hemisphere—also practice birthright citizenship, but it is no longer common in most of Europe.

This principle was challenged in the Supreme Court’s infamous Dred Scott decision, which found that children born to African slaves were themselves property and thus could not be citizens. The 14th amendment, ratified shortly after the Civil War, overruled that decision, stating clearly that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States.”  

At the time, there was no such thing as illegal immigration because all migration to the U.S. was legal. (For my fellow Americans of European descent whose ancestors came long ago, we may want to reflect on that before bragging about the moral superiority of our ancestors who “came the legal way.”)

But, after the Chinese Exclusion Act passed in 1882, making basically all migration from China illegal, the question of how the 14thamendment would apply in this circumstance was considered directly in the 1898 case of Wong Kim Ark. It was determined that, despite his Chinese heritage, a child born in San Francisco was indeed a citizen.

The U.S. government has recognized birthright citizenship ever since.

Q: Why is this practice coming into question now?

Matt: Mr. Trump stated last week that he thinks not only that this shouldn’t be the law of the land, but that, according to “some very, very good lawyers,” it actually isn’t the law of the land. He suggests we have been misinterpreting the 14th amendment for the past century and a half.

But nearly every legal scholar, including the most conservative, agrees that he and the unnamed lawyers he cited are just wrong. To end birthright citizenship would require a Constitutional amendment, which would necessitate the ratification of the legislatures of 38 of the 50 states. That is incredibly unlikely on this particular question.

Q: What is the benefit of birthright citizenship?

Matt: My own opinion is that, even if it were politically possible, overturning birthright citizenship would be a terrible idea. Birthright citizenship is vital to immigrant integration. It means that, within a generation, immigrants are Americans. In many parts of Europe, there is sharp hostility between the children and grandchildren of immigrants and the society that surrounds them, precisely because they are kept marginalized.

The U.S. is somewhat unique (and blessed) in that to be “American” is not an ethnic description. Conversely, for example, someone in France or Germany of African origin is not likely to be viewed as French or German—or to view themselves that way—even generations after their ancestors migrated.

Q: How does your faith inform your perspective on this issue?

Matt: From a Christian perspective, I think birthright citizenship honors the biblical principle of not punishing a child for their parents’ actions (see Deuteronomy 24:16, Ezekiel 18:20). It allows a child the full opportunities of living in the U.S. regardless of his or her parents’ legal status.

Q: How does birthright citizen impact immigrants who arrive here unlawfully?

Matt: Some presume that birthright citizenship confers a legal benefit on the parents of a child born here. While such parents do get the satisfaction that their child is likely to have many more opportunities than they themselves did, they usually do not benefit directly, at least in the short term.

For example, if I entered the country unlawfully from Mexico and had a child, I would still be undocumented. My child could not petition for me to have legal status until she was at least twenty-one years old.

Even then, I could only receive a green card if I left the U.S. and waited abroad for ten years as a punishment for having been present unlawfully. (Waivers are available in some cases, but only if I have a U.S. citizen spouse or parent. Child’s citizenship alone is insufficient to even apply for an exception.)

The idea that undocumented people are having babies so that—thirty-one years later—they might qualify for legal status seems far-fetched to me.

I'm thankful to Matt for unpacking birthright citizenship for us. Check back next week for Part 2 of this interview where we touch on the current political climate and ways Christians can stand up for immigrants. 

Image Credit: TiggerT

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