Tuesday, July 24, 2018

There Is a War Coming Over “Birthright Citizenship” (jus soli) in the US and No One is Ready


Most Americans are shocked that 80% of the world’s countries do not let you be a citizen just because you were born in that country. When I traveled to Australia a few years ago while pregnant with my son, a friend, a lawyer no less, joked that if I had my baby there, “he will be Australian!” She actually thought that if I had my baby in Australia, he would be an Australian citizen.
Jus soli, or “birthright citizenship,” as Americans usually call it (reflecting the fact that it occurs automatically at birth,) is written into our Constitution, despite what some Trump administration officials would have you believe. I will not plunge into the logic of the argument that the 14th Amendment says something different from what it plainly says (plenty of others have done soalready), nor do I wish to spend the time to point out that the history of the Americas in general is one of automatic jus soli for countries that have so long received large numbers of immigrants, and that it is firmly based in the English common law, nor do I want to speak of the very real problems jus sanguinis countries are experiences today as they struggle with statelessnessand excluded minority groups.
While Trump administration official Michael Anton’s op-ed in the Washington Post came as a shock to many people, in reality he is merely putting forth the opinion of many far-right nationalists, an opinion they have been mulling over and working on for years. The fact that Michael Anton had a job in the Trump administration means that these views are no longer “fringe” as some people continue to hopelessly claim, but have very much entered the mainstream. At what point to we accept that a large number of Americans, both inside and outside of academia, support the end to jus soli? That many people voted for Trump to achieve just such an aim and that Trump is now searching for judicial appointments that will use the law to achieve these ends? Is anyone who believes in a multi-cultural, plural America prepared for the coming war?
We are lucky that the right to automatic jus soli is written so clearly into the Constitution and that we have prior Supreme Court cases, chief among them Wong Kim Ark, to support our view. Sure, history, facts and the Constitution are on our side. But laws can be changed and Constitution is always up to interpretation, no matter how strong a precedent may seem. The radical right has been working on this issue for years and they have long had a fair amountof support in the government. Yet while the radical nationalist movement in the United States has already placed champions in key positions in the Trump administration, academia and elsewhere, including people like Michael Anton and Steven Miller, there are few left-leaning civil society group in the United States working to protect jus soli.
Conservatives have been arguing about jus soli for quite some time and many prominent conservatives support it, or are at least having a dialogue about it as a matter of public policy, but neither the center-left nor the far-left are engaged. The issue might as well be invisible. While many civil and immigrant rights organizations and lawyers support jus soli, the issue barely registers for larger American advocacy groups, or within even the radical left wing of the Democratic Party, or among liberal activists who work outside the party. Nor is it a topic of conversation for more mainstream groups. It was not an issue raised by either Hillary Clinton or Bernie Sanders during the 2016 election. We are, quite frankly, asleep at the wheel.