The Hypocrisy of Those Who Oppose Birthright Citizenship

Guest blogger: Adrian Valenzuela, law student, University of San Francisco:

America: A Nation of (Undocumented) Immigrants

Birthright citizenship is enjoyed by millions of Americans every year and is typically only controversial when it applies to undocumented immigrant parents. Following the Civil War, the Fourteenth Amendment was adopted to ensure that all black people born in the United States were full citizens, regardless if they had previously been slaves. However, the language of the Fourteenth Amendment “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” established birthright citizenship through which all individuals born on American soil, and whose parents are subject to the jurisdiction of the United States, are American citizens. This is the single most common way of becoming a United States citizen.

Although the Fourteenth Amendment clearly establishes that birthright citizenship applies to all people—regardless of immigration status—there has been significant controversy as to its application to undocumented immigrant parents. Judge Richard Posner, of the U.S. Court of Appeals for the Seventh Circuit, argues in favor of changing birthright citizenship since it solely “encourag[es] foreigners to come to the United States.” In addition, Republicans like Rand Paul also agree with the need to change birthright citizenship since he argues “citizenship is a privilege, and only those who respect our immigration laws should be allowed to enjoy its benefits.” Donald Trump has added his voice to the anti-birthright citizenship camp.

            However, the hubris of most critics in hypocritically failing to acknowledge that all Americans—aside from Native Americans—are the products of undocumented immigrants, leads to the demise of their arguments. The original American colonists that came to the United States and violently took the land away from Native Americans had no right or legitimate claim to the land. Since these “pioneer Americans” had no right to take the land, nor did they have valid visas to enter the American territory, the original colonists were indisputably undocumented immigrants. To hypocritically argue that contemporary undocumented immigrants have no right to use birthright citizenship would be to argue against the genesis of this country and would delegitimize the millions of offspring that come from these original colonists and other immigrants. The judges in the landmark United States v. Wong Kim Ark (1898), which held that a child born from Chinese parents in the United States was an American citizen, warned against this hypocritical argument. Judge Gray forewarned:

“to hold the Fourteenth Amendment excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.”

Judge Gray, writing for the majority, reminded Americans how birthright citizenship had clearly benefited all of them and their European ancestors. The judge gave this convenient reminder to refute both past and contemporary arguments against birthright citizenship, since arguing against this legal right would delegitimize millions of people who had benefited from being considered American citizens. 

However, most critics of birthright citizenship might respond by arguing that in order to be undocumented, laws have been breached, and back in the early days of the country, Native Americans had no system in place. This Eurocentric perspective exclusively relies on European ways of governance and does not acknowledge other legitimate ways of governing that may have been in place. Regardless of the critics’ arguments, the same landmark United States v. Wong Kim Ark decision holds “the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory.” If critics are so concerned with Eurocentric precedent they would be acting hypocritically by not following this ancient citizenship rule by denying birthright citizenship to the children of undocumented immigrant parents. As a result, arguing to change or abolish birthright citizenship in order to prevent children of undocumented immigrants from becoming Americans is hypocritical and would delegitimize the entire country—aside from Native Americans—since we all come from undocumented immigrants who had no claim to the land.

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