By Philip N. Cohen
August 9, 2010
Huffington Post
For a parent, "because I said so" is the ipse dixit's justification. For a patriot, there are substantive explanations for the moral chasm between them and us, but they all seem to be variations on the OED's definition of "selfish": Devoted to or concerned with one's own advantage or welfare to the exclusion of regard for others. The modern state's reasons for granting or denying citizenship are a mix of "because I said so" and "because we matter and you don't."
Democracy is a living monument to individual rights. Except not in real life, where nationalism protects the patriot's political shenanigans from the shame of selfishness. Today's example: citizenship. For a newborn baby, yet to commit its first sin, what is the moral principle that lets the citizenship of it parents determine its rights?
"Birthright citizenship" -- by which a baby born in the US is as American as POTUS himself -- is a welcome case of legally treating children as individuals with their own rights. The rarely-mentioned fact that an "anchor baby" can't sponsor its parents' immigration until it turns 21 confirms that it is not the parents who have benefited from a "loophole." Rather, the child is itself a citizen -- who may act on that privilege (or not) upon reaching the age of majority. (Aside: but shouldn't that age be 18?)
By one conservative estimate, there are about four million U.S.-born children with at least one parent who is an unauthorized immigrant.
But if all those pregnant women without immigration papers think their babies will be anchors -- helping them stay in the country after they "swim across the river" and give birth on U.S. soil -- they're wrong. I knew that suburban legend rang a bell, and then I remembered my own post from last year:
Over the 10 years up to 2007, the U.S. deported 108,434 adults whose children were U.S. citizens, according to a Department of Homeland Security report. The exact number of citizen children left behind in these deportations is unknown, because no one in the government cared to count them... Either keeping your parents from being dumped over the border isn't a right Americans enjoy, or someone in power doesn't really think these kids are American. Or both.
The principle of "settled law," or stare decisis, is mutable. And when it comes to anti-immigration-election-year politics, ignorance of the law is the only excuse some people need. In the case of birthright citizenship, which some Republicans say they want to eliminate by amending or reinterpreting the 14th Amendment, the principle may be worth refreshing.
Wong Kim Ark was born in San Francisco around 1870 -- after the adoption of the 14th Amendment, which reads in part, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States."
In 1894, having previously traveled to China and back as a U.S. citizen, he attempted to return from another visit there. This time, however, the authorities blocked his return on the logic that, under the Chinese Exclusion Act of 1882, he could not be a citizen because his parents were Chinese. In an 1898 decision, the Supreme Court declared that citizenship by birth was guaranteed under the 14th Amendment.
It is fashionable among anti-immigrant groups to claim that the 14th Amendment is not clear, or that the courts haven't spoken directly to this issue. (Practically, this isn't likely to change right away. But in the meantime, some suggest, maybe the U.S. should deny pregnant women visas.) I am especially incensed by those who pretend that undocumented immigrants are not "subject to the jurisdiction" of the US. Tell that to the undocumented immigrants executed here.
What is "jurisdiction," anyway? Change "and subject to the jurisdiction thereof" to "or subject to the jurisdiction thereof," and you'd have to let at least the people of Afghanistan and Iraq vote here as well.
While some people are trying to gain citizenship -- or at least access -- others become U.S. citizens involuntarily after being declared orphans and getting adopted by American parents. A recent New York Times report highlights the scrambling confusion -- followed by limbo-citizen status -- for some children adopted from Haiti and granted "humanitarian parole." (Aside from the Haiti situation, inter-country adoption has become less common, but it's too early to tell if its era has ended.)
And then there are the citizens who aren't. Being a U.S. citizen doesn't mean the CIA can't wage an undeclared war on you and blow you to smithereens with a drone -- while your lawyer sits in jail for attempting to represent you. Such political de-Americanization was immortalized in the Phil Ochs song "The Ballad of William Worthy," about the black journalist convicted of traveling without a passport on his return from Cuba -- having had his passport seized after a trip to China: "You are living in the free world and in the free world you must stay."
(Aside: In the category of arbitrary citizenship rules, maybe for comparison, consider Israel. Because its national identity is religiously-defined, "essentially, all Jews everywhere are Israeli citizens by right." Unlike in some religions, children of Jewish parents [mothers] are assumed to be Jews, too. But, like in other religions, people can also convert to Judaism, and after ironing out a few details, those who have converted may also claim their right to Israeli citizenship. In fact, Jewish-American parents who adopt children may convert them to Judaism, and then, I suppose, move them to Israel as citizens -- giving them two new citizenships and one birthright religion before they're old enough to speak for themselves. [So, what if the whole world converted to Judaism?] This automatic citizenship for some comes at the expense of those denied access to what is now Israel, including of course some people who were born there.)
There is no way -- and no reason -- to avoid the underlying tension of citizenship politics, which is the mind-bending level of global economic inequality, largely expressed as between-country disparities. This creates the unbearable pressure that builds along the borders between rich and poor, and fuels the politics around them. That background reality urges me toward an ends-justifies-the-means attitude regarding citizenship, in which I simply root for the policies that favor more open borders in order to increase access by the poor to a better life.
I read somewhere that, "Height variations within a population are largely genetic, but height variations between populations are mostly environmental." Metaphorically, opportunity and the myth of meritocracy work similarly. Within some populations (say, countries), those who work hard or have better raw material may out-compete their peers and rise to the top (call that genetic). But the inequality between countries is essentially insurmountable by individual effort or ability (call that environmental).
Such are the accidents of birth -- and the selfishness of the politics that covets citizenship.
