Donald Trump and Birthright Citizenship: The Right Debate

Republican presidential candidate businessman Donald Trump speaks during a campaign pep rally, Friday, Aug. 21, 2015, in Mobi
Republican presidential candidate businessman Donald Trump speaks during a campaign pep rally, Friday, Aug. 21, 2015, in Mobile, Ala. (AP Photo/Brynn Anderson)

As Donald Trump seeks to ride proposed legislative repeal of the Fourteenth Amendment's citizenship clause to the Republican presidential nomination, several of his rivals have called this debate a distraction. In fact, it speaks very directly to a central issue for any presidential candidate and race; that is, the kind of nation the United States should be.

Trump's ideas -- in language adopted from mainstream restrictionist groups -- are rife with contradictions and rich in irony. Birthright citizenship foes like Trump -- although otherwise strong proponents of American exceptionalism -- tout the citizenship laws of European and other nations as the model for a nation (the United States) whose historic genius and exceptionalism has turned on its ability to attract and integrate immigrants. They argue for legislative repeal of birthright citizenship on "rule of law" grounds, yet treat the U.S. Constitution as an immigration enforcement loop-hole, not the supreme law of the land. Moreover, their proposal would create a permanently "illegal" underclass of people who have broken no laws and it would put millions more outside the law's protections. As for Trump's attacks on "anchor babies," children cannot petition for legal status for their parents until they become adults.

Trump professes to have heard that courts would uphold a law to overturn birthright citizenship. Yet repeal would almost certainly require a Constitutional amendment. The Fourteenth Amendment extends citizenship to "all persons" born in the United States and subject to its jurisdiction. Unauthorized children constitute "persons" under the Amendment and are subject to U.S. jurisdiction, meaning not immune from the force of its laws. The citizenship clause overturned the infamous Dred Scott decision. In making jus soli ("right of soil") citizenship a constitutional right, Congress sought to prevent the political branches of government from denying citizenship to disfavored groups in the future. The Congressional debate over the clause assumed that it would extend citizenship to the children of the foreign-born, and focused on whether citizenship should be provided to them. In 1898, in United States v. Wong Kim Ark, the Supreme Court held that the Fourteenth Amendment applied to the children of immigrant parents. It found that "[e]very citizen or subject of another country, while domiciled here, is within the allegiance and protection, and consequently subject to the jurisdiction, of the United States." Eighty-four years later, in Plyler v. Doe, the court found that unauthorized children were "persons" under the Fourteenth Amendment and that states could not deny public education to them. It concluded:

It is difficult to understand precisely what the state hopes to achieve by promoting the creation and perpetuation of a subclass of illiterates within our boundaries, surely adding to the problems and costs of unemployment, welfare, and crime. It is thus clear that whatever savings might be achieved by denying these children an education, they are wholly insubstantial in light of the costs involved to these children, the State, and the Nation.

Civic ideals cannot occupy a leading role in Donald Trump's conception of the United States, given his insistence on restoring one of the most notorious legal decisions in the nation's history. Yet U.S. citizenship should primarily turn on a shared commitment to political institutions and civic values like equality, human rights, freedom, and opportunity.

In a letter to the Hebrew Congregation at Newport in August 1790, George Washington spoke of the fledgling country as follows:

It is now no more that toleration is spoken of as if it were the indulgence of one class of people that another enjoyed the exercise of their inherent natural rights, for, happily, the Government of the United States, which gives to bigotry no sanction, to persecution no assistance, requires only that they who live under its protection should demean themselves as good citizens in giving it on all occasions their effectual support.

In the Gettysburg Address, Abraham Lincoln described the ideals that connect Americans, famously calling the United States a nation "conceived in liberty, and dedicated to the proposition that all men are created equal."

In his first inaugural address, President George W. Bush characterized "the American story" as the "story of flawed and fallible people united across the generations by grand and enduring ideals. Bush identified the "grandest of these ideals" as "an unfolding American promise that everyone belongs, that everyone deserves a chance, that no insignificant person was ever born." He continued:

America has never been united by blood or birth or soil. We are bound by ideals that move us beyond our backgrounds, lift us above our interests, and teach us what it means to be citizens. Every child must be taught these principles. Every citizen must uphold them. And every immigrant, by embracing these ideals, makes our country more, not less, American.

In three weeks, another migrant will land on U.S. territory. We do not know precisely what he will say about immigrants, but we know that he does not view immigrants -- much less their children -- as a problem to be removed. Rather, he sees them as a source of hope and potential.

We ourselves need to see, and then to enable others to see, that migrants and refugees do not only represent a problem to be solved, but are brothers and sisters to be welcomed, respected and loved. They are an occasion that Providence gives us to help build a more just society, a more perfect democracy, a more united country, a more fraternal world and a more open and evangelical Christian community. Migration can offer possibilities for a new evangelization, open vistas for the growth of a new humanity foreshadowed in the paschal mystery: a humanity for which every foreign country is a homeland and every homeland is a foreign country.

Let's hope the U.S. presidential candidates are listening.