Tim Sandefur has an interesting post about the law of birthright citizenship. He argues that it’s not necessarily the case that birthright citizenship is as firmly established by the Constitution as both supporters and critics assume. I’m not a lawyer so I’ll defer to Sandefur’s expertise on the legal merits. But I think this is orthogonal to the argument I was making. Limiting birthright citizenship is a bad idea regardless of whether it can be done by statute or requires a constitutional amendment.
Meanwhile, Jason Kuznicki chimes in with another strong argument for birthright citizenship:
I don’t imagine that anti-immigration activists are going to be bought off so easily. Instead, a permanent, multi-generational class of non-citizens would just be fuel for the fire. Twenty years on, immigration foes will look at all the second- and third-generation non-citizens we’ve created, and the mass arrests and deportations will really begin in earnest…
The genius of birthright citizenship is that it changes the incentives for everyone involved. It says to all populations: You’ve got roughly twenty years to figure out how to live with one another, as citizens. Now get to work.
Sandefur may have a good point. I am not quite prepared to say, because I’m not a lawyer either.
I had always understood “subject to the jurisdiction thereof” to be an exclusion only of American Indians and those with diplomatic immunity. It can’t be said that your average tourist in America isn’t subject to U.S. jurisdiction, and to say that an undocumented immigrant isn’t subject to our jurisdiction would make a mockery of immigration law. How could we then justify the existence of immigration courts?
I’m sure we tortured the 14th amendment as much as we did the commerce clause, it could be done.
But even with that, I think (hope!) that it wouldn’t be possible to change at this point.
I think you’re right, Jason, with: “I don’t imagine that anti-immigration activists are going to be bought off so easily.” Especially since they don’t object to citizenship so much as the public benefits that immigrants would receive. It seems like it would be easier, if you want to make a compromise, to go directly to the source of the concern with any policy proposal.