Born in the USA

Soon, the US Supreme Court will consider the four-decade long crusade to overturn a long-held consensus of US law: The idea that people born in this country, simply by virtue of their birth here, are American citizens.

Birthright citizenship centers on the Citizenship Clause of the 14th Amendment to the US Constitution, which reads:

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.

This right does not extend to the children of foreign diplomats and, for far too long, Native Americans were not considered citizens. But for the better part of 160 years, the straightforward proposition as stated in the sentence cited above has been accepted to mean what it says.

Unfortunately, since the 1980s, rightwing lawyers and politicians have been aggressive in their attempts to undermine this US legal constant by suggesting the qualifier, “subject to the jurisdiction thereof,” ought to exclude the US-born children of undocumented immigrants. And in an executive order Donald Trump is pursuing the idea our long-held and common understanding is, in fact, wrong.

As a historical matter, I believe the most succinct argument in favor of the traditional interpretation of the Citizenship Clause centers on how members of Congress at the time of its adoption responded to concerns that US citizenship would be extended to the children of Chinese who were living in the US and, especially, to so-called “Gypsies.”

In 19th Century America, the Roma, or “Gypsies” as they were uncharitably called, were the closest equivalent to today’s illegal immigrant, a category that didn’t exist at the time, according to legal scholar Garrett Epps, who wrote an authoritative legislative history of the Citizenship Clause.

They were reviled in certain quarters, even as there were doubts they were even present here. One lawmaker at the time characterized them as itinerants who “wander in gangs” and “ settle as trespassers.” Had there been a Fox News back then, the Roma would certainly have been a favorite target.

Yet, during the debate over the Citizenship Clause, it was made clear citizenship should be given to the US-born children of Chinese immigrants and the Roma. US Sen. John Conness, of California, a naturalized citizen himself, affirmed the idea “the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States.”

This view echoed the opinion given earlier the same year by Sen. Lyman Trumbull of Illinois, who responded “undoubtedly” when asked whether the 1866 Civil Rights Act, which he had drafted would consider the children of the Chinese and Roma citizens.

Three decades later, an 1898 US Supreme Court decision confirmed what has become our long-held understanding of birthright citizenship.

Critics of the traditional interpretation of citizenship, however, have sought to pry apart this understanding. And over the past 40-some years, they have made labyrinthine arguments that seek to distort the plain text of the 14th Amendment and the Citizenship Clause’s history.

However, their efforts to redefine this phrase fall short. As John Yoo and Robert Delahunty, two prominent legal scholars, wrote in a recent issue of National Affairs:“ Aliens within the territory of the United States are, and always have been, ‘subject to [its] jurisdiction’ because they have a right to enjoy its protection and a reciprocal duty to obey its laws.”

That said, I don’t mean this to be an exploration of the legal and historical arguments over the Citizenship Clause. As offensive as it is to see the Trump administration and its rightwing allies try to unravel the Constitution, it is equally insulting, if not more so, to watch them try to dehumanize innocent children in this quest.

There is no greater evidence of this pursuit than the foul term, “anchor babies,” which has been used for years to try to convince Americans these precious children aren’t human, let alone citizens, but objects to be scorned.

They are given no intrinsic worth or sympathy; in this view, they are simply products of their “illegal” parents’ corrupt schemes—contrivances enabling their families to root themselves here in order to steal taxpayer-funded benefits from “real US citizens.” This in spite of the fact that several analyses, including a recent study by the libertarian Cato Institute, demonstrate that immigrants provide more benefits to the US than extract in costs.

This analysis extends to undocumented immigrants.

Still, the assault continues.

It is abhorrent to watch these so-called conservatives, who in other contexts say they revere children, nonetheless characterize these particular children as illegitimate commodities.

“To punish babies, much less to proscribe and entirely outlaw them, because of the perceived sins of their parents is alien to our moral and ethical tradition,” Epps wrote. “Guilt is not hereditary; it is individual.” He quotes the Old Testament prophet Ezekiel: “ The son shall not bear the iniquity of the father, neither shall the father bear the iniquity of the son.”

In Iowa, there is no better example of the violation of this moral and ethical tradition than the brief in support of the Trump administration filed by Attorney General Brenna Bird and several other Republican-led states.

Throughout the brief, these innocent children are not considered for their humanity. They aren’t thought of as miracles with God-given potential. They are demeaned as mere tools of corruption.

The brief cites another right-wing trope, “birth tourism,” to overstate the number of children who are born to undocumented immigrants in the US. Then, it connects these children to their parents’ “criminal activity” by cherry-picking news media reports and ignoring the findings of numerous studies that debunk the idea migrants commit more crimes, or even as many, as US-born Americans.

In a section purporting to catalogue the annual cost of undocumented immigrants, Bird alleges that in Iowa, “the cost of illegal immigration has been more than a hundred million dollars for decades.”

She invents this claim by misusing a nearly 20-year-old study from the Iowa Legislature. The report itself has notable limitations. It calculates the annual cost of undocumented immigrants by assuming they receive the same level of benefits from the state budget as legal residents. They do not. Undocumented immigrants don’t get access to most government programs. However, the bigger sin is Bird’s disregard for the study’s own acknowledgement that undocumented migrants also pay taxes in this state.

Bird conveniently ignores this plain fact insofar as Iowa is concerned. Undocumented immigrants are simply portrayed as a financial drain. (The brief does make a glancing reference to immigrant tax payments elsewhere, but it effectively dismisses their contribution.)

This view is not surprising; it is fully in keeping with the practice of disregarding and dehumanizing people who are in the US without documentation, including the citizen children they bring into the world.

We have seen how the Trump administration and its allies seek to portray immigrants as dangerous, even “ deranged,” criminals in their quest to build public support for cruelly rounding up families and banishing them, often to unsafe countries with which they have no connection.

Americans should know better than to buy this con.

Fewer than 14% of the immigrants the Trump administration arrested last year had violent criminal records.

This is why you see protests all over this country. It is not that protestors don’t care about the law. They simply believe in applying the law humanely. They know migrant families have, in many cases, fled dangerous countries and are here to make a better life for themselves and their children. In some cases, they have been invited to seek refuge here.

Americans who oppose Trump’s mass deportation scheme, along with the violence that has become a central part in carrying it out, see the faces of these migrants. They recognize their humanity. Trump does not. He and his allies, like Stephen Miller and Krisi Noem, don’t want Americans to see their faces, either. Which is why they seek to rob these migrants and their children of their human dignity.

A sad legacy

Reginald Oh, a law professor at Cleveland State University, wrote a few years ago, “ dehumanization is still a central part of the racial discrimination that African Americans and other racial groups experience today. When we look for it, we can see dehumanization virtually everywhere.”

It runs through our history. Slavery was dehumanization, Oh writes. So, too, he says was Jim Crow segregation and the ban on interracial marriage.

It also is present in our immigration debates today. Clearly.

Republican political leaders in Iowa, just like Trump, would rather the people of this state not credit immigrants and their children with their humanity.

This is shameful.

There have been several occasions throughout Iowa’s history that this state has been at the forefront of progress for civil rights in the US. In the courts, in the Legislature and through its people, the cause of equal opportunity is a part of our common heritage; however, the present-day Republican leadership in Iowa is putting this state on the opposite side of its best historical traditions.

In this case, they seek not only to strip children of their right to citizenship, but their humanity, too.

I realize the question of birthright citizenship is mostly seen as a legal and historical matter. And as I have noted, the law and US history are on the side of our long-held practice of recognizing citizenship for all who are born here. But, outside the debates of lawyers and historians, there is a more central question for all of us.

Who are we as a nation? Are we a people who would cast out innocent children?

I don’t think this is what most Iowans, or Americans, really want.

Our history is full of people, of patriots, who have rejected the dehumanization tactics of those who would oppress others. They, and we, have not always been successful in this effort. And at times it has taken far longer than it should have to bestow the dignity owed to all people. But I believe the history of the US since its founding is one of progress; of striving to fulfill our most worthy ideals.

As the writer George Cassidy Payne wrote on Common Dreams a year ago:

The 14th Amendment, ratified in the ashes of the Civil War, was nothing short of revolutionary. It sought to upend centuries of exclusion and injustice by affirming a profound truth: that citizenship is not a privilege of the few but a birthright for all born within the nation’s borders. It declared that neither the color of one’s skin nor the circumstances of one’s birth could define one’s place in society.

There is, and should be, a place for every child born in the US. They are human. They belong. They are, in fact and by right, citizens.

To say otherwise is to defy the US Constitution, our history and who we aspire to be as Americans.

Ed Tibbetts’ work can be found at Along the Mississippi, which is part of the Iowa Writers Collaborative.