The Trump administration is proposing to restrict birthright citizenship by executive order. Much of the discussion has focused on the legality of this move: can a president really change what has long been assumed to be a constitutional writ, just by fiat?
The debate over process is surely fascinating to a small niche of constitutional lawyers. But for the rest of us, especially conservatives who believe in the importance of governance that reflects American values, the question is not simple “Is it legal?” but “Is it good?” Ending birthright citizenship, even modestly limiting it, is quite bad.
Some Background on Jus Soli Citizenship
Three general principles generally govern how nations award citizenship: blood, soil, and merit. The first principle is obvious: the children of citizens are citizens. There is variation in this around the world. Some countries require two citizen parents, some only one, some make adult citizenship contingent on other conditions, etc., but basically, every country recognizes that the children of citizens generally have a right to be citizens.
The second most common principle of citizenship is merit: most countries allow people to become naturalized citizens on the basis of merit, such as learning and adopting the values of the country, spending time in the country, or just spending a lot of money, as some small and corrupt nations permit.
Finally, the least common way of awarding citizenship is on the basis of “soil.” So-called jus soli citizenship, Latin for “law of the soil,” is the principle that a person is a citizen if he is born in a country’s territory.
Around the world, there is a simple shorthand way to identify which countries respect jus soli and which do not. Simply put, in the “old world,” citizenship is by blood, but in the “new world,” it’s by soil. In this case, the “new world” largely includes Australia, New Zealand, and South Africa as “settler countries” populated by large amounts of European immigrants.
As you can see, jus soli is very common. Even before the 14th Amendment, jus soli was the norm in the United States for the children of white immigrants in accordance with English common law. After 1802, this principle was written into statute.
The 14th Amendment, then, was not creating a wholly new idea of jus soli citizenship, but extending it to African Americans, who had been categorically excluded from citizenship by previous legislation and the infamous Dred Scott case.
Its logic is obvious for “new world” countries: long naturalization periods discourage immigration, and most of these countries very much wished to encourage immigration, as they had vast open spaces to be settled. Implementing jus soli was a straightforward way to guarantee that new settlers would rapidly be incorporated: if they are citizens, then they can vote. If they can vote, politicians will try to communicate with them, and that means they’ll be integrated into the wider political milieu quite quickly.
This desire for easy naturalization crops up in other citizenship laws too. The map below shows how many years of residence a person must have to apply for citizenship around the world.
Again, the settler countries have very low requirements. Countries with merit-based immigration systems like Canada and Australia actually have even shorter waiting periods than we have in the United States: Australia requires just one year of permanent residency and 4 years overall, while Canada requires just three years of permanent residency.
The United States requires five years of permanent residency and, since about half of green card grants are to people who have already been in America on other visas for a while, the average residency time in America to become a citizen is nearer 7 to 10 years.
We can also look at rules about dual citizenship and sale of citizenships, and again see that the settler countries usually have fairly relaxed standards about multiple passport-holding as well.
In other words, not only is it downright false that jus soli is some rare America-only thing, but it’s actually a near-universal practice of “new world” countries: a hallmark of settler countries is easy access to citizenship. That’s because jus soli has historically been, and remains today, an excellent way to encourage immigrants to see themselves as Americans.
Birthright citizenship creates birthright loyalty, whereas denying citizenship to foreign children helps alienate the entire family and slows down assimilation. This vital truth is what has motivated so many countries to adopt jus soli citizenship.
Indeed, many European countries like Germany are adopting more and more jus soli rules as they wake up to the problem of mass migration. Without jus soli, immigrants will flood in and never integrate.
Jus Soli Citizenship Helps Accelerate Assimilation
The evidence for this is pretty straightforward. In countries without jus soli citizenship, 1 to 3 percent of the population is routinely excluded from citizenship. I used data from national censuses where that data is available for the below chart:
Having an extra percent or two of the population disenfranchised may not sound like much, but it ends up being equivalent to disenfranchising, say, the entire state of Kentucky. Put that way, it becomes quite clear why this could cause problems: even a small rebellious area can be a huge security problem for a country. When you make it a poorly integrated ghetto of multigenerational non-citizens in every city, well, you get Belgium’s problems.
Like most countries with no jus soli citizenship, as of their 2011 Census, about 1.8 percent of Belgium’s population was native-born to Belgium, but denied Belgian citizenship. The central city of Brussels alone has more than 10,000 people who were born in Belgium, were possibly eligible for African citizenship by parentage, and were denied Belgian citizenship at birth.
By comparison, the entire town of Molenbeek has just 95,000 people. In other words, lack of jus soli citizenship is a significant demographic explanation for the persistence of poorly integrated places.
It makes sense that denial of jus soli rights would radicalize a population. Many immigrants can’t return to their home countries, or, even if they theoretically can, doing so would immiserate them. In other words, most immigrants’ ties to “home” have been greatly weakened.
For the parent generation, immigration was a choice, and they usually integrate well. The problem is the next generation; kids born into a country that refuses them participation as equals, yet having no familiarity with their legal nationality. For these kids, identity must come from somewhere else.
For many, the only pieces of their national heritage they still meaningfully experience are religion, food, and sports teams. Language is often preserved in some form as well, but must compete with the language of the new home. If the children of immigrants continue to share their ancestral foods and cheer for their ancestral country’s sports teams, that’s fairly benign.
In the vast majority of cases, religiosity is benign as well. But in some cases, particularly in the case of radical Islam, the reinforcement of Islamic identity caused by denial of jus soli is a serious problem.
If the United States had denied citizenship to the children of illegal immigrants starting in 2001, we would probably have about 3 to 6 million fewer citizens today. Some of those kids would never have been born or become citizens because their parents wouldn’t have come here: but many still would have. In other words, instead of having between 10 and 15 million illegal immigrants, we would have between 13 and 21 million illegal residents: but some of them would be nearly impossible to deport, because no country might claim them as a citizen!
If you think it’s hard to assimilate immigrants now, imagine a world where we have 6 million fewer citizens, and we have 3 to 6 million immigrants who’ve never lived anywhere but the United States, but deeply resent and despise the United States because we categorically denied them citizenship. That’s a recipe for disaster.
It’s Time to Be Hard-Nosed Realists About Immigration
Yet if we could just control the border, the problem would be solved! Birthright citizenship is only a problem thanks to illegal immigration! So a true immigration hardliner could call for an end to birthright citizenship for illegal immigrants and a crackdown at the border: that way we don’t get a huge buildup of an unassimilable underclass, because there will simply be fewer immigrants!
This strategy will fail. President Trump has deployed the National Guard and the military, built massive detention camps, separated families—he’s taken the gloves off in every way imaginable on the border. He’s pushed and pushed for the border wall, and he’s had a Republican House and Senate for two years.
The result has been that illegal immigration is actually rising again. Now, illegal immigration is much lower now than it was under President Clinton, mostly thanks to tough border enforcement policies implemented under President Bush and during President Obama’s first term. Illegal immigration is a fraction of what it used to be.
But it’s still nowhere close to zero, and it never will be. Near-zero levels of illegal immigration are a naïve, pie-in-the-sky fantasy. Now, we should absolutely be tough at the border. I’ve written before about how progressive critiques of President Trump’s border policies are unfair.
But we also have to be realists instead of idealists. Realistically speaking, illegal immigration will not fall near zero for the foreseeable future. The illegal immigrant population is about stable or slightly declining, but it will still be a large population for many years to come, despite aggressive deportations.
In other words, while it would be wonderful if we could get to zero illegal immigration, and I desire that outcome, it’ll never be possible. If having our most hardline president in a century on immigration with both houses of Congress held by the GOP won’t do it, then it’s time for us to realize that nothing will get us to zero illegal immigration.
That means we have a choice about restricting birthright citizenship, but either way we will have a substantial illegal population. That being the case, it becomes obvious that restricting birthright citizenship will increase the rate of illegality among immigrants, as their children are denied citizenship. It could also lead to growing statelessness, and will certainly slow down assimilation.
In other words, for nationalists like me whose goal is assimilating immigrants, repealing birthright citizenship is just crazy. We need to be making sure these kids know from birth that they are Americans, equal to all other Americans. That’s the only reliable way to assimilate them.
Immigrants Are Assimilating Very Well
So then we have to ask: are immigrants assimilating well? The answer is unequivocally yes, and there’s no shortage of evidence.
One study shows that the income and education of second-generation Mexican-Americans is underestimated because many of the smartest and richest of them cease to identify as Mexican or Hispanic entirely. This is a fascinating finding, because it tells us both that data on “Hispanics” or “Mexicans” is underestimating their income and education (so making the descendants of immigrants look poorer than they are), but also because it throws a huge wrench in Democratic political strategies.
Democrats rely on turning out the minority vote, and have said for years that “demographics” favored them. The problem? America’s demographics aren’t changing as fast as they, or the Census Bureau, expected, and that’s partly because many people who “should” be Hispanic actually say they are white.
Call it what you will, but if your worry is that immigrants will form an “ethnic voting bloc,” the fact that many don’t even see themselves as ethnically different is pretty significant. Accounting for these measurement issues, Mexican-Americans are likely to experience a good pace of economic integration and catch up to other Americans within the next few decades.
Another study shows that immigrants who learn English experience rapid assimilation in how they spend their day-to-day time. Conveniently, a growing share of immigrants in America speak English well. In 1920, Census Bureau records indicate that 42 percent of non-citizens in the United States did not speak any English. In 2007, it was 17 percent. Today, it’s less than 15 percent. Meanwhile, the share who speak English very well or better is rising.
Data on incarceration and crime suggest that immigrant criminality patterns are about the same today as they were in the early 1900s. In fact, immigrants today are probably relatively less crime-prone, compared to natives, than immigrants a century ago were. I think “no worse than 1900-1930 assimilation rates” is a pretty good grade for modern immigration.
Academic research has also conclusively shown that immigrant enclaves slow down assimilation, something most of us concerned about illegal immigration have been arguing for years. But crucially, this research also shows that in the age of open migration from 1850 to 1920, immigrants were extremely walled-off into ethnic communities.
In other words, our great-grandparents who came over from the old world did not show up and immediately jump into a melting pot and assimilate. They moved into Little Italys and Little Norways and lived among co-ethnics for a long time.
Immigrants today actually tend to be spread pretty widely around America, thanks to easier transportation and visa rules that tie people to specific institutions like employers or universities scattered widely throughout the country. Even immigrant women from countries that severely restrict women’s access to the wider world exhibit strong patterns of assimilation in America.
Is there room to improve on assimilation? Sure. But overall, assimilation in the United States is very successful, unlike in Europe where assimilation is proceeding haltingly at best. A major contributing factor for rapid assimilation in America is our reliance on jus soli citizenship. Ending that would greatly boost the number of illegal residents of the United States, create an even more resentful quasi-stateless underclass, and ultimately slow down assimilation.
We Should Pursue Merit-Based Reforms
Rather, the United States should take the opposite strategy. We should follow the lead of countries like Australia or Canada and adopt a transparent, simple, merit-based immigration system combined with very generous citizenship rules. We need a rational, points-based system that filters out immigrants unlikely to be contributing members of society, and restricts the scale of family immigration, as swiftly as possible. Congressional Republicans have made some gestures in that direction, although their proposals were flawed.
As we mimic Australia and Canada in our visa issuance plans, we should mimic them for naturalization rules. A simple way we could improve our rules would be to change the five-year legal permanent residency requirement for citizenship to five-year legal presence including at least one year of legal permanent residency, allowing people to count some of the time spent on other types of visas towards the citizenship clock. There’s no reason to make someone who’s spent eight years in America on a student visa and received a PhD from an American university, then got a green card to stay here, to wait an extra five years.
We should allow the speedy naturalization of people who, by virtue of long stays here on other merit-based visas such as student or H- and O-class visas, have already shown themselves trustworthy and taken many steps towards assimilation. If this change worries people skeptical of immigration reform, we could enhance the testing component of the naturalization process and make it more challenging, to ensure people don’t just skate through.
There’s one last reason not to strike down birthright citizenship. Setting a precedent that presidents can, by the stroke of a pen, cast into doubt the citizenship of huge numbers of people is not a good precedent for conservatives. The authoritarian presidency was bad enough when President Obama tried to give illegal immigrants a back-door permanent residency through Deferred Action for Childhood Arrivals. It’s no better when Trump tries to prevent citizenship from accruing to people who may be constitutionally protected.
If you think progressives won’t find a way to debate the merit of some conservatives’ citizenship under this newfound presidential power at some point in the future, you’ve got another think coming.