Is citizenship a birthright? Politics and the U.S. Constitution.

I frankly thought that this was a universal norm.  I.e., I thought that every nation basically held that point of view.

It turns out that I was wrong, which surprises me:

Where Is Citizenship Granted By Birth?

As can be seen, it's actually a minority of countries that hold this view, although a substantial minority. Forty-one countries to be exact, although in five of them, that's somehow qualified in some manner (and I don't know in what manner).

This comes up, of course, due to the recent news that President Trump may attempt, by executive order, to hold that children born of non citizens are not American citizens.  This brings up the Fourteenth Amendment to the U.S. Constitution, which we hear about all the time in other context, but rarely in this one. The part of the Fourteenth Amendment we're hearing about now provides:

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

We don't hear about this much as it hasn't been a matter of contested law.  I think everyone pretty much has held the view that the Fourteenth Amendment means that if you are born in the U.S., you are a citizen.

Now, it's actually a bit more nuanced than that, particularly in a historical context, but not much.

The amendment came about in the wake of the Civil War as there was some doubt about this due to the results of the war.  By and large it had always been the American view that if you were born in the United States you were a citizen, just as it had been the English view that if you were born anywhere in the United Kingdom or its Empire that you were a "subject" of the King.  The American oddity, however, is that this view cannot be accommodated to slavery, which was legal everywhere when the United States became a nation.  This was less of a problem, oddly enough, for the English as being a citizen isn't quite the same as a subject, but it was clearly an early problem for the United States.  Americans obviously couldn't accommodate slaves as citizens nor could the accommodate Indians as citizens, at least automatically, either.

The early U.S. Constitution didn't address this at all, except in reserving to Congress the right to deal with Indian tribes, implicitly thereby recognizing their sovereignty and thereby creating a peculiar subset of sovereignty, which in fairness also somewhat, but somewhat not, dated back to the Colonial era.  Indian tribes were sovereign, but only as sovereign as the U.S. decided they were.  Indians tribes that weren't fully incorporated into society at large were not citizens.  Slaves, of course, were also not citizens in those states were slavery was legal, but were where it wasn't.  If that seems really odd, keep in mind that before women were given the franchise nationally, they had the right to vote in some states and not others.  Allowing states to decide such things was pretty common.

But following the bloodbath of the Civil War disenfranchising blacks was obviously contrary to the position of the victor. That is, however, exactly what some Southern states would have done, maybe all of them, treating them effectively as non citizens due to their race, the same way that many Indian tribes were non citizens, although for a theoretically different reason.  The Fourteenth Amendment was passed to clear that issue up, along with a bunch of others.

The issue was cleared up for Indians in 1924, as shockingly late as that may seem, by way of a statutory provision, which stated:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all non citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States:

Provided That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property.

Approved, June 2, 1924. June 2, 1924. [H. R. 6355.] [Public, No. 175.]
SIXTY-EIGHTH CONGRESS. Sess. I. CHS. 233. 1924.

Note that the Indian Citizenship Act was tied to being "born within the territorial limits of the United States."  In other words, it adopted the same

So how does a question like this even come up?

It seems to have come up several years ago in the context of the children born of immigrants who have been given the term "anchor babies".  I.e., there was a concept that immigrants were running across the border just to have children so that these children could claim U.S. citizenship later on, and perhaps their parents could then legally migrate into the U.S., sponsored by their child.  I have no idea how common that was, but I suspect it wasn't hugely common.  Not that illegal immigrants don't have children in the U.S., they of course do, but the anchor baby situation was likely not terribly common.

I heard that term for the first time in a long time the other day again, but I think those who started opposing birthright citizenship several years ago had spread the concept out and left the anchor baby thing behind and instead were arguing that birthright citizenship doesn't exist in the U.S. because the reading of the Fourteenth Amendment that's generally accepted is incorrect.

Which takes us into odd territory.

Americans claim to love their Constitution, but in reality people tend to love parts of it, and others not so much.  The Constitution should be given its plain and ordinary meaning whenever possible, and then interpreted based upon legislative history when it can't be, but people oddly only like partially doing that.

Here, for example, I suspect that a lot of the people who are claiming that the plain and ordinary meaning of the Fourteenth Amendment is wrong and that birthright citizenship isn't protected by the Constitution would argue that the plain and ordinary meaning of the Second Amendment means exactly what it says.  I think they both mean exactly what they say.

Which takes us to this.  If people don't like the text of the Constitution, they can argue to change it. But people don't get to argue that one part should be interpreted as written while another should be read in a strained manner.

And yet politically, that tends to be what both camps do.