Birthright Citizenship isn’t new

Not even in the sense of “newer than the original Constitution”.

Are you a US citizen? Were you explicitly naturalized (with accompanying documentation)? If you answered Yes to the first and No to the second, then congratulations: You are a citizen via birthright citizenship. The recent decision by the Supreme Court (Trump v. Barbara) didn’t invent birthright citizenship, nor did it extend citizenship to any class of people who did not already have it. The Court in fact simply affirmed that everyone who thought they were a citizen, were correct.

Since 1868, this has been explicit in the Constitution via the 14th Amendment. (And remember, once an Amendment is adopted, it is the Constitution. There’s no special privilege of the things in the original document; indeed, they are explicitly deprecated as obviated if a later amendment changes the relevant text.) Because the Constitution explicitly has the process of amendment in it, a successful amendment is even more so the Constitution than any bit it replaces. So the 14th Amendment is clear and supreme: Born on US soil subject to the US, and you’re a citizen. Attempts to argue otherwise are simply racism mendaciously dressed up as supposed learned debate.

Which is why you are, almost certainly, a birthright citizen. You might object, “No, I was born to US citizens.” You know what? That’s not in the Constitution. If you were born in the US, you’re a US citizen — full stop, no reference to parentage. If you were born abroad but to US parents, you are also a US citizen — but not from the Constitution. Your citizenship rests upon laws passed by Congress, particularly, the Immigration and Nationality Act of 1952.

(Weird implication: A child born to undocumented parents inside the US has a stronger claim to citizenship than a child born to US parents abroad, as the Constitution is stronger than federal laws.)

What if you think the 14th Amendment was a mistake? Well, first, you really fail at US citizenship. (But rest assured — you’re still a citizen. You just don’t understand the nation of which you are a part.) Maybe you want to go back to the “original”, supposedly pure Constitution, before woke people messed it up with all those amendments. (Aside: Kiss your right to guns goodbye, too, since that’s also only a part of the Constitution by amendment.). Let’s get back to what the real Founders intended, you might say.

It turns out, the Constitution (prior to the 14th Amendment) didn’t actually speak to citizenship. I mean, they agreed citizens existed and non-citizens existed. They just never spelled out what made someone a citizen. A citizen of any state was automatically a citizen of the United States. What made one a citizen of a state? Well, that sort of depended on the state. In fact, one reason that the Dredd Scott decision helped ignite the Civil War was the sense that Chief Justice Taney had abrogated the social contract that bound the states — a number of states (5 out of the original 13!) had already recognized the citizenship of free Blacks, and Taney waved all that away.

But let’s try to look past that federalist issue. What defined citizenship before the 14th? Definitions of citizenship depended on the principle of jus soli, the right of the soil, that is to say … birthright. It’s always been birthright. Trump’s attempt to redefine citizenship by executive order wasn’t constitutional, wasn’t appropriate, and certainly wasn’t conservative: The history of the United States is birthright citizenship; removing it would have been the change.

Although the decision was closer than it should have been — indeed, the Court should never have taken up the case at all — it was not only correct; it was the only legitimate outcome possible.