- - Monday, November 2, 2015

ANALYSIS/OPINION:

Birthright citizenship is under attack. For more than a hundred years the legal consensus has been that the words of the 14th Amendment, promising citizenship to all persons “born in the United States, and subject to the jurisdiction thereof” means just that: All persons born in the United States are federal citizens. Recently, though, Republican presidential candidates, including Donald Trump, Ted Cruz and Rand Paul have expressed skepticism about its application to the children of undocumented immigrants. More dramatically, the state of Texas has refused birth certificates to such children, effectively denying them many of the rights of citizens.

The debate is one of great practical importance, but the constitutional provision on which it focuses might seem peripheral. It is understandable to think of birthright citizenship as a technical rule, and one perhaps written with past conditions in mind, not one of our central constitutional provisions.

Understandable, but wrong. Birthright citizenship has as good a claim as any constitutional principle to be the heart of who we are as a people, and an attack on it is an attack on that American identity.

What is going on now is what happens in every time of fear and national insecurity. We try to decide who are the true Americans and who are dangerous imposters. We succeed only in identifying people who are different and harming innocents out of our own fear.

This impulse is responsible for some of the ugliest episodes in our history. In World War II, the government decided that the birthright citizenship of Japanese Americans did not matter. “A Jap’s a Jap,” said Gen. John DeWitt. “A piece of paper doesn’t change that.”

“A viper is nonetheless a viper, wherever the egg is hatched,” wrote the Los Angeles Times. Ethnic Japanese were too different. They could not be real Americans, and nearly a hundred thousand birthright citizens were forced to leave their homes and were detained in camps in the interior of the country.

It’s no surprise that attacks on birthright citizenship feature in ugly chapters of our history. The principle of birthright citizenship itself is America’s attempt to overcome the ugliest of those chapters: our legacy of slavery. Slaves lived among us; they were born on American soil, but they remained permanent outsiders. Notoriously, in the Dred Scott case, the Supreme Court pronounced that slaves and their descendants — even if free — could never be citizens of the United States. They “had no rights which the white man was bound to respect.”

The 14th Amendment, one of three amendments enacted in the aftermath of the Civil War, responded to the Dred Scott decision directly. All persons born in the United States, it said, would be federal citizens — no matter their color, no matter their parents, no matter what the states might think or who they might try to exclude from the American nation. And in so doing, it reaffirmed the principle upon which this country may truly be said to have been founded: the rejection of hereditary distinctions. America was conceived as a country without a king, where no one was born either to rule or to be ruled. Our Constitution forbids hereditary honors like titles of nobility and likewise hereditary punishments like the corruption of blood.

Birthright citizenship is perhaps the most important manifestation of this principle. People are born into very different circumstances in the United States. As economic inequality rises and social mobility declines, it grows harder each year to say that they are born equal. But there is one thing they are all born into, one way in which the Constitution truly does make them equal: Everyone born in the United States is a free and equal citizen. Birthright citizenship expresses what is best about America, and we should not let fear, insecurity or distrust of those who are different blind us to its value and its promise.

Kermit Roosevelt is a professor of law at the University of Pennsylvania Law School and the author of the novel “Allegiance” (Regan Arts, 2015). He also is the great-great-grandson of President Theodore Roosevelt.


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