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Rethinking Birthright | Boston Review

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Amidst chants of “send her back,” it’s clear that we need a more just conception of citizenship—one that abolishes the distinction between “natural” and naturalized citizens.

On May 6, 2019, Archie Harrison Mountbatten-Windsor was born in a private London hospital to an American mother (Meghan Markle) and an English father (Prince Harry). Archie came into this world seventh in line to inherit the English Crown. He also came into the world the first member of the Royal family to be a citizen of both the United Kingdom and the United States. Importantly, however, at his birth, Archie became not only a citizen of the United States, he became a natural born citizen. This is the status first mentioned in Article II, Section 1 of the U.S. Constitution, which stipulates that “No Person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.”

Citizens are splintered into two groups: natural citizens who claim citizenship as an automatic right and naturalized citizens who passively receive citizenship as a gift.

Baby Archie could thus grow up to be what America’s founding fathers feared most: an English prince as president. In recent years, however, the “natural born” clause has been the subject of different preoccupations. During the 2016 debates for the Republican party presidential nomination, for example, Ted Cruz and Donald Trump squared off on the issue of whether Cruz—who was born in Calgary, Canada, to an American mother and a Cuban father—was eligible to be president. Trump argued that the framers of the Constitution had the principle of jus soli (right of the soil) in mind when they wrote that a president had to be a “natural born” citizen. In response, Cruz argued that he was “natural born” according to another principle of nationality, the principle of jus sanguinis (right of blood), which awards citizenship on the basis of a biological connection to an American citizen.  

Most constitutional lawyers agree with Cruz’s interpretation. Although natural birth seems to be premised on the territory in which an individual is born, according to a 2011 report from the Congressional Research Service, there are three ways that individuals can claim the status in the United States: “either by being born ‘in’ the United States and under its jurisdiction, even those born to alien parents; by being born abroad to U.S. citizen-parents; or by being born in other situations meeting legal requirements for U.S. citizenship ‘at birth.’” To be ‘natural born,’ a person must have a biological attachment to the United States, whether through the physical location of their birth or the body of a parent. 

The pertinence of “natural born” status is not limited to the highly select people who run or consider running for president every four years. “Natural birth” has an everyday purchase on the American populace, splintering citizens into two groups: natural citizens who claim citizenship as an automatic right and naturalized citizens who passively receive citizenship as a gift. This distinction became palpable recently when Trump tweeted that four female congresswomen of color should “go back” to where they came from. Many news reports rushed to point out that three of the four women were born in the United States. That difference set the fourth congresswoman, Rep. Ilhan Omar, apart. As a naturalized citizen—born in Somalia—Omar becomes distinct in the American psyche not merely because she applied for citizenship, but because the biological definitions attached to birthright make her unnatural. 

Consider the case of another baby born in London the same year as Archie. This child was born via surrogate to a male same-sex couple from the United States. The baby’s parents were married and both were U.S. citizens, though one of the parents—crucially, the sperm-donating parent—was originally born in Britain. Shortly after the birth the U.S. State Department issued a letter informing the couple that their child was not a citizen of the United States at birth. The parent with a genetic attachment to the child had not lived long enough in the United States as a citizen to pass his citizenship down (five years is the minimum). The other parent, who was a natural born citizen, could not establish a “blood connection” to the child. Thus, according to the principles of jus soli and jus sanguinis, the child was an alien to the United States.  

Why is it that a child born to a British princess who will likely never again live in the United States has a right to U.S. citizenship, while a child born to two U.S. citizens must apply for a tourist visa to visit its parents in the United States? Why is it that a crowd will chant “send her back” about a U.S. congresswoman? On what moral and historical ground is birth a more meaningful register of civic attachment? 

Born in Somalia, Ilhan Omar becomes distinct in the American psyche not merely because she applied for citizenship, but because the biological definitions attached to birthright make her unnatural. 

These questions became particularly pressing after Trump declared in an interview with “Axios on HBO” that he would sign an executive order to end birthright citizenship in America. “We’re the only country in the world,” Trump insisted, “where a person comes in and has a baby, and the baby is essentially a citizen of the United States . . . with all of those benefits.” (This is not correct: more than thirty other countries maintain a policy of birthright citizenship.) Trump vows to end birthright citizenship for the same reason that he wants to build a wall and separate families at the border: to stop the “invasion” of immigrants at the southern border (and rally his base in preparation for the next election). Defense of birthright at this moment thus joins wider resistance against Trump’s xenophobic policies. Historically, as many people have recalled, birthright was introduced to protect vulnerable populations in the United States, namely freed slaves after the abolishment of slavery. Today, the same law devised to help former slaves protects the children of undocumented immigrants. If we care about just citizenship practices, it makes sense that we would want to continue to uphold birthright.

It is true that birthright citizenship offers protection for U.S. born children of immigrants. But it is also true that this right does nothing to protect the parents of these children or any siblings brought to the United States as young children. Birthright citizenship is stopgap citizenship; it helps some people, but the very principle of birthright is the source of inequality for many others. Fairer and more just practices of citizenship require abolishing the distinction between natural and naturalized citizens under law. This does not mean that citizens do not acquire citizenship when they are born in the United States. Instead it prevents the arbitrary factor of birth from carrying protections and allowances unavailable to naturalized citizens.

Of course, citizenship is fundamentally a form of division and inequality. Borders are in themselves a massive source of inequality, reserving resources and benefits for those considered “insiders.” Today many on the left are calling for open borders, a proposition that involves, among other things, the expansion of sanctuary protections for migrants and the erosion of territorial definitions of national membership. It is not entirely clear to what extent the realization of open borders requires the overthrow of citizenship and revolutionary dismantling of the global nation-state system. As long as there is a constitutive “we” that defines the people, citizenship will continue to formalize privileged membership. Which is why we need to ensure that more people can access its protections. One powerful, and maybe even bipartisan, way of doing this would be to eliminate the distinctions that conceive of birth as a preeminent form of national belonging.

• • •

Birthright citizenship is stopgap citizenship; it helps some people, but the very principle of birthright is the source of inequality for many others. 

For much of the early history of the United States, birth was actually a secondary source of citizenship. The 1790 United States Naturalization Law, which first laid out the rules for national citizenship, limited citizenship to immigrants who were free white persons of “good character.” Native Americans, slaves, free blacks, and indentured servants were all prohibited citizenship. State and federal tribunals argued that Indians, though born within the territorial limits of the United States, could not be citizens because they were born with allegiance to their tribes, which were alien to U.S. law. The counsel from the 1823 case Johnson vs. McIntosh held that native Americans were “not citizens, but perpetual inhabitants, with diminutive rights.” Free blacks born in the United States were also excluded from citizenship because Southern courts argued, paradoxically, that birth did not make a citizen; entitlement to rights and privileges did.

After the Thirteenth Amendment abolished slavery, Congress passed the Civil Rights Act in 1866 to guarantee the citizenship of freed slaves. “All persons born in the United States,” it read, “and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” To protect this new view of citizenship and to make citizenship a national rather than state mandate as it had been, Congress then approved the Fourteenth Amendment. In 1868, Section I of the Fourteenth Amendment was added to specify the conditions of citizenship: “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.”

Before the Fourteenth Amendment, naturalization had been the primary citizenship practice. The United States needed immigrants; its naturalization policies, which had no stipulations up until 1790, reflected this need. Citizenship preferences, however, shifted after the nineteenth century. As the nation began to perceive itself as self-sufficient, and as the Fourteenth Amendment receded into settled history, birth was mythologized anew as a necessary requirement for authentic national belonging. Naturalized citizens were those who had had to prove their allegiance.

Yet naturalized citizens are asked to demonstrate skills and knowledge that birthright Americans might never possess. Naturalization requires a lengthy procedure, and to be eligible, an applicant must reside in the United States and prove that they are able to read, write, and speak English. (These naturalization tests call to mind the historical use of literacy tests as a means to disenfranchise racial minorities.) They must also possess a solid understanding of U.S. history and government. Additionally, a person eligible for naturalization must demonstrate that they are “a person of good moral character, attached to the principles of the Constitution of the United States, as well disposed to the good order and happiness of the United States during all relevant periods under the law.” We can imagine how many natural born citizens would stumble over naturalization test questions such as “What did the Declaration of Independence do?” or “How many U.S. senators are there?” And we can easily call to mind many natural born Americans, including many presidents, with questionable “moral character.”

Naturalization tests call to mind the historical use of literacy tests as a means to disenfranchise racial minorities.

Moreover, naturalized citizens are also vulnerable to losing their citizenship in ways that natural born citizens are not. A naturalized citizen can be denaturalized if the government discovers that they falsified or concealed facts on their naturalization application, or if they refuse to testify to Congress. A naturalized citizen can also be denaturalized if they are discovered to be a member of a terrorist organization such as the Nazi Party or Al Qaeda, or because of a dishonorable discharge from the military.

These might seem like legitimate reasons to cancel citizenship. But denaturalization was introduced not just as a punishment, but also to make naturalization a more consistent and fair procedure. The 1906 Nationalization Act included a clause about denaturalization to help state and federal offices streamline the practice by cancelling redundant or faulty naturalizations. Once it was technically possible, however, denaturalization began to be used by the government to target and expel unwanted individuals.

In the first half of the twentieth century, some women (even natural born citizens) who married foreigners were stripped of their citizenship, as were Asian persons whose race was considered “un-American.” In 1956, the U.S. Attorney General Herbert Brownell proposed a plan to punish communists by stripping them of their citizenship. In reaction to Brownell’s proposal, political theorist Hannah Arendt characterized denaturalization in a letter to Robert Maynard Hutchins as a “crime against humanity.” Denaturalization, she argued, jeopardized not only communists, but all citizens, especially stateless persons who had no former state to which they could be repatriated. Denaturalization was a crime worse than capital punishment because it banished people from U.S. law. For this reason, Arendt insisted that

“it should be constitutionally impossible to deprive naturalized citizens of their citizenship—which, for various historical reasons, they can now lose more easily in this country than anywhere else—except in cases of dual allegiance (where statelessness anyhow would not ensure) and of fraud about personal identity (name, place, and date of birth, etc.) in the process of naturalization. All other cases of fraud should be punished under law, but not by denaturalization.”

Arendt made her case for a constitutional amendment to protect citizenship in the context of postwar statelessness. As a stateless refugee from Germany, she knew how easily denaturalization could become a totalitarian weapon to put people beyond the pale of law. Yet her call for a constitutional amendment to make denaturalization impossible should have included no exceptions. In focusing her protection on stateless persons, she too quickly conceded the rightfulness of denaturalization for persons who commit basic identity fraud or hold a second passport. If we leave open denaturalization for some citizens, we retain a two-tier model of citizenship—one that rests on shaky moral ground.

Moreover, even the legal ground of denaturalization is difficult to establish. Last June, for example, U.S. Citizenship and Immigration Services (USCIS) announced the opening of a new office to investigate decades old naturalization fraud cases. Interest in naturalization fraud first began under the Obama administration after the government discovered that fingerprint data for 13,000 people was missing from a centralized fingerprint database. This new office was tasked with looking through these files to identify cases wherein individuals may have applied for naturalization under a different name. In 2018, a citizen named Baljinder Singh was the first person to have a naturalization certificate annulled under this operation. Singh was admitted to the United States in 1991 under an asylum application using the name Davinder Singh. After he abandoned that application, he was ordered deported, but continued to live in the United States. After marrying a U.S. citizen, he received citizenship in 2006 as Baljinder without disclosing that he made an earlier application for asylum under another name.

The 1906 Nationalization Act included a clause about denaturalization, which has since been used by the government to target and expel unwanted individuals.

Singh’s case seems like a clear example of fraud. “The defendant exploited our immigration system and unlawfully secured the ultimate immigration benefit of naturalization,” said the Acting Assistant Attorney General Chad Readler. But it remains legally uncertain how Singh “exploited” the immigration system because his case requires us to understand the conditions in which a former deportation order can be considered materially relevant to a naturalization application. Does the fact that Singh did not present the deportation order show that he had bad moral character and was therefore ineligible for naturalization? Or does the inadmission itself make him ineligible to be a citizen?

These are the kinds of questions that have been asked of other denaturalization cases, all of which demonstrate just how difficult it is to understand what facts matter in naturalization cases and when denying or concealing those facts warrants denaturalization as punishment.

In one ongoing case, for example, a 62-year old man from Florida, Parvez Manzoor Khan, faces denaturalization on the grounds that he had failed to disclose a previous deportation order when he applied for naturalization. Khan argued that he had not known about the deportation order when he filed for citizenship. He was never provided with translation services, and his lawyer, who was later disbarred for misconduct, failed to notify him about his immigration court hearing. His counsel contends that even if he had known about the order and told immigration officials about it, it was not clear how this deportation order would be materially relevant to his naturalization case. Khan, his lawyers contend, received citizenship lawfully through marriage.

Similarly, in the Supreme Court case Maslenjak v. United States, a Serbian woman was accused of lying on her naturalization application about her husband’s involvement in the Bosnian army. When Maslenjak applied for refugee status, she told an immigration official that she and her family were targets of persecution because her husband had evaded conscription into the army. She was granted asylum as a refugee. In a later application for naturalization, Maslenjak swore under oath that she had never told a lie to an U.S. immigration official. After ICE uncovered evidence that her husband had in fact been an officer in the Bosnian army, Maslenjak stood trial for procuring her naturalization contrary to law. In 2014, a jury convicted Maslenjak of fraudulently applying for naturalization and her citizenship was revoked. In 2017, the Supreme Court vacated the decision of the lower court, remanding the case on the grounds that it was unclear if Maslenjak’s falsehood about her husband was “sufficiently relevant” to her application for citizenship.

As long as it exists as an option, denaturalization will perpetuate inequality, because fear, even if unwarranted, can make people act differently. 

All of these cases involve ordinary citizens who have lived in the United States for long periods of time. Their “crimes” are that they failed to reveal some information to government officials when they sought asylum or naturalization and that this evidence may have been material to their application for citizenship. They reveal why many naturalized citizens panicked when USCIS announced that it would more aggressively examine fraud; what if they had written an address down wrong on their application, or had not included their mother’s second middle name? One friend of mine, a permanent resident hoping to file for naturalization, worried that an accidental failure to report a new address to USCIS within ten days of moving made her eligible for deportation. (According to the Nationality Act, failure to report a new address as a permanent resident is a deportable offense).

As long as it exists as an option, denaturalization will perpetuate inequality, even when it is not actively being employed. This is because fear, even if unwarranted, can make some people act differently. Even though, in reality, the applications of most naturalized citizens will never be reopened, the fear of denaturalization means that naturalized citizen might not exercise their right to protest the government, fearing retaliation. Or maybe a permanent resident will opt not to apply for naturalization in the first place, losing out on a right to vote. Because journalistic interventions can only go so far to quell these fears, I now insist, like Arendt, that we need to pursue a constitutional amendment to protect citizenship for naturalized citizens. There should be only one kind of citizen in the United States: a citizen.

• • •

A constitutional amendment to make citizenship irrevocable would require intervention from Congress and ratification by three fourths of all states. In other words, it would require enormous political willpower—the same kind that led black Americans to fight for birthright citizenship in the nineteenth century. Abolishing the denaturalization clause would also require the United States to run against a global trend that has seen countries such as Britain, Canada, Germany, France, and Australia pursuing or enacting stricter denaturalization policies in the past ten years.

But an amendment to make citizenship a constitutionally protected right for all citizens is only one step toward closing the gap between the rights of naturalized and natural-born citizens. The routes to citizenship itself would still retain many inequalities. The next measure, then is to weaken the biological principles at the heart of citizenship.

There should be only one kind of citizen in the United States: a citizen.

The child born by surrogate in England was denied U.S. citizenship on the basis of the current interpretations of the Immigration and Nationality Act. According to the “Assisted Reproductive Technology (ART) and Surrogacy Abroad” policy on the Bureau of Consular Affairs website, in order for a child to acquire citizenship at birth “a child born abroad must be biologically related to a U.S. citizen parent.” The policy states that DNA analysis is the best way to determine blood relation. This parent, in addition to having a biological relation to the child, must have been physically present in the United States for over five years, two of which must be when the parent was over the age of fourteen years.

In her book The Birthright Lottery, Ayelet Shachar outlines a new principle of citizenship she calls jus nexi. This principle emphasizes actual and genuine participation in the national community over principles of blood and soil. She cites, for example, the decision of the International Court of Justice with regards to a German citizen who lived in Guatemala during his adult life and made that country the headquarters of his business before acquiring and seeking protection under a passport from Liechtenstein. The court ruled that citizenship requires “a legal bond having as its basis the social fact of attachment.” The man’s most genuine attachments were to Germany and Guatemala; he could not claim the rights of a newly-purchased citizenship. Shachar draws on this case to reconceive citizenship away from formalistic understandings based on place of birth or genetic link, inviting Americans to consider citizenship through the lens of “genuine connection.”

In non-immigration domains of law, such as property and divorce, decisions about the recognition of a genuine relationship are based on factual, case-by-case considerations. A cohabiting couple who are not married, for example, are afforded rights and obligations in law based on evidence of their genuine connection: the bills they share or their years spent splitting rent. By applying this idea to immigration, we could reconceive connection to the national community on the basis of demonstrated attachment.

Something like this already happens in the sphere of immigration, though in an uneven way. After college I worked as a paralegal in an immigration law firm in Canada. Part of my job was to assemble dossiers for Homeland Security testifying to the legitimacy of the marriages between U.S. and Canadian citizens. These dossiers were meant to convince immigration officials that the marriages under review were not marriages of convenience. Included in the files were material demonstrations of love: phone bills, handwritten letters, photographs, and even a cake-smudged polaroid from a wedding reception. A model of citizenship based on connection rather than biology would rework birthright away from being a fact of coincidence. Under a new model, the fact of birth would not exclusively determine a person’s eligibility for citizenship. Citizenship would be granted based on facts such as the length of time a person has been resident in the country and activities that demonstrate their connectedness, such as the location of their place of work and their social relationships.

Shachar does not outline precise application procedures for this new model. My suggestion is that everyone would have to formally demonstrate their material attachment to the United States. A baby born at a hospital in New Jersey would apply for a passport with a birth certificate and documentation about its parents’ material connection: their place of work, perhaps, and the length of time they have lived in the United States. A child born abroad, such as the baby born in London to a surrogate, could substantiate the material ties of its parents in a similar way. A refugee living in the United States under conditions of asylum could make a powerful claim for a material connection to the United States on the basis of their time spent in the country and their inability to return to their point of origin.

For some people, this model might seem to subject individuals to invasive and potentially arbitrary investigations from immigration officers at Homeland Security. Right now, however, immigration officials already launch invasive searches into the lives of permanent residents and naturalized citizens, especially around matters, as I already mentioned, of their “good moral character” and civics education. The ascriptive model of birthright admits no understanding of circumstances. By opening up the criteria of citizenship to include matters of material attachment (length of residence and social and economic relationships in the country), applicants would be given more opportunity to substantiate claims to citizenship—and all applicants would experience the same process.

Under a new model, the fact of birth would not exclusively determine a person’s eligibility for citizenship.

Under this less biological conception of attachment, Ted Cruz is a citizen because his mother had a lasting and involved connection to the United States that was not finished when Cruz was born. The child born abroad by surrogate to a same-sex American couple is a citizen by virtue of being born to parents who have lived and worked in the United States (no matter that one of those parents cannot connect himself to the child biologically). The child of an undocumented immigrant born in the United States is a citizen based on the fact that they have never known another home and their parents have spent years in the country. Even the undocumented parents of these children, should they one day be granted amnesty, could pursue citizenship by demonstrating their genuine attachment to the nation through the years they have spent working and contributing to communities here. Crossing a border without documentation would thus no longer be a disqualification for citizenship.

If we adopt such a model, several citizenship claims would fall away. The child whose only connection to the United States is a biological grandparent (say, Archie’s children) cannot automatically become a citizen. Nor can a baby born in an airplane passing over U.S. airspace or while its parents are on vacation claim citizenship. In this respect, Trump is correct about birthright citizenship: claims to attachment cannot be based merely on the location of birth. Geography is a weak and purely formalistic premise for attachment, not to mention easily exploited by “birth tourism” markets, which help wealthy couples harness birthright citizenship for their children. Indeed, it is estimated that wealthy Chinese nationals will pay $80,000 to manage travel for the “privilege” of birthright for their children.

Yet this rejection of biological principles avoids the political hypocrisy of Trump’s position: he denigrates birthright to target immigrants while insisting all the more steadfastly on the right to question Obama and Cruz’s presidential eligibility. The rethinking I am suggesting expands citizenship for others in the same spirit that led to the creation of the Fourteenth Amendment.

• • •

One might reasonably ask why we should focus attention on birthright at a moment when historic numbers of migrants are in need of immediate refuge. Birthright, some might say, is not the problem right now: it is borders and our restrictive asylum policies. But as migration to the United States increases, it is important to advocate for fairer citizenship as a way to bridge protections for those who live in the uncertain condition of asylum.

Many new immigrants will apply to become naturalized citizens in the years to come. If we do not change the biological principles at the heart of citizenship itself, then many immigrants, even if they become citizens, will continue to be targets of backdoor nativist politics, through investigations into naturalization fraud or the ideological associations attached to being refused admittance into the highest office in the land. 

Birthright citizenship, once so crucial for protecting the rights of black Americans, has now become the locus of much inequality. 

Birthright citizenship, once so crucial for protecting the rights of black Americans in the age of Dred Scott, has now become the locus of much inequality. When treated as the most important factor for national membership, birth creates a political ideology—one that extends beyond eligibility for the presidency. As we have seen since 2008, “birtherism” has grown to target all immigrants—even those elected to Congress. We need a larger campaign, one that includes pathways to membership—whether we want to call that membership citizenship or not—for all people with material ties to the United States. 





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