Democratic states this week made clear that Donald Trump faces a bitter legal fight if he pushes ahead with plans to end birthright citizenship, but an exclusive poll for DailyMail.com shows that the president has America’s backing.
After his inauguration on Monday, Trump ordered officials not to recognize the citizenship of children born in the U.S. if neither their mother or father is a U.S. citizen or legal permanent resident.
J.L. Partners polled 1,009 registered voters ahead of Trump’s inauguration asked them: ‘Currently, when someone is born in the United States they immediately become a citizen, regardless of their country of origin or their parents’ citizenship status. This is called ‘birthright citizenship’.
‘Do you support or oppose the removal of birthright citizenship?’
Some 48 percent of respondents said they supported removal and 26 percent said they supported it strongly.
In contrast, 32 percent said they opposed it, 23 percent strongly.
There are two questions here. What is the law? Is it good policy? Let’s start with the first.
This is the relevant part of the Constitution:
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.
For my entire lifetime, at least, this has been interpreted to mean that if you are born on the soil of the U.S. or born of citizen parents, then you are also a citizen. That is how I have always assumed it was correctly interpreted. The phrase in dispute in the “subject to the jurisdiction thereof” part. What does that mean?
To be subject to a government’s jurisdiction, it logically means that you are part of the community and subject to the normal laws as everyone else. If you are born in this nation to illegal aliens, are you really under our jurisdiction? You aren’t filing taxes, getting insurance, adhering to labor laws, etc. You are living in the shadows.
Remember that this sentence was written after the Civil War to naturalize former slaves and ensure that they have full citizenship. In that case, the former slaves were born in the nation and they were undeniably subject to its jurisdiction – by force. In the case of people born of illegal aliens, they are neither forced nor allowed to live under the same jurisdiction as citizens.
I expect that despite the logical argument, this is a reach for the law because of the century of accepted interpretation of this clause. I don’t think it’s been fully litigated, but that’s because the interpretation of birthright citizenship was so accepted that nobody thought to challenge it. Trump is challenging it.
Is this good policy? Here’s an enlightening visual:
It is, by no means, a God-given right nor universally accepted good policy to grant citizenship by virtue of where you are born. While not universal, the trend is that younger countries have the Rule of Land and older countries have the Rule of Blood. Why? Partially because during the age of exploration, new countries needed to attract people to settle there. Partially because that’s what was in vogue at the time the laws were made.
As a populous and settled country that readily attracts immigrants, the U.S. does not need the Rule of Land to grow our population. We should maintain a healthy flow of immigrants, but we can do so with thoughtfulness of our nation’s needs and compassionate about refugees. We do not need to grant citizenship to a person just because their mom found her way onto American soil to give birth. This is especially true when we see so many people exploiting this rule.
So, yes, it would be good policy to move the U.S. to the Rule of Blood, but I expect that we will find that it will take a Constitutional Amendment to get there.
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