The Right to Be
Trump’s attack on birthright citizenship will have a serious impact on the children of immigrants (legal and illegal) in the United States. The Pew Research Center documents the existence of a substantial population of US-born children living with an unauthorized immigrant parent. The Trump administration claims that this new understanding of citizenship will only be applied to the children born to unauthorized immigrant parents after the law has been implemented. I do not believe this, but even if it is true, the impact of ending birthright citizenship will undermine the legitimacy of those whose only claim to citizenship is birth.
And that is not all. As Benjamin Balthaser, a scholar at Indiana University, argues, the 14th Amendment and birthright citizenship laid the foundation for a multiracial society, a society in which citizenship, with its duties and rights, does not turn on race. Thus, rejecting birthright citizenship undermines one of the constitutive principles of our society. (Of course, Balthaser’s argument assumes that race will be an important determinant of who does and who does not get citizenship at birth. But let’s be honest with ourselves: it will.)
But the impact of rejecting birthright citizenship extends further still. It is crucial for the preservation of human rights of any sort that persons are born with citizenship somewhere, that is to say, the right to be somewhere. If we do not have the right to be somewhere, it is not clear that we could have a right to be at all. This undermines the entire notion of human rights.
This is partly a practical problem. It is generally national governments that are thought to have the primary responsibility for fostering and protecting the rights of their citizens. If people are born without citizenship anywhere, then there is no one to whom they can appeal for protection and support for the exercise of their rights.
But there is also a conceptual problem here. Birthright citizenship (jus soli/right of soil) is not the only way to ensure that everyone acquires citizenship at birth. Most countries, whether they accept birthright citizenship or not, grant citizenship on the basis of descent or lineage (jus sanguinis/right of blood). Under this doctrine, one’s citizenship is grounded on the citizenship of one’s parents in some way. So, perhaps, the danger of many people being born without citizenship isn’t really such a problem. Certainly there will be cases of people whose parentage is unknown, or whose citizenship is unclear for other reasons. But these will be the exception rather than the rule.
But even a brief reflection on the state of our world reveals the problem with this approach to citizenship. One of the harshest and most intractable features of our world is the existence of millions of refugees who have fled their homes, likely never to return. Perhaps they are fleeing wars or natural disasters that have undercut the possibility of a functioning civil society in their countries. Or perhaps it is their own governments that have turned against them and driven them out. For people in such situations, jus sanguinis is often just an empty promise.
And, finally, if blood is the source of citizenship, it is also what excludes one from citizenship. It doesn’t take much imagination to discern the horrors that this line of thought can lead to. Indeed, it may not take any imagination at all as we watch the development of Trump’s plans to rid the country of those he considers undesirable.