ven as Arizona continues to distinguish itself as America's undisputed leader in hare-brained xenophobia, the state has stumbled upon a very good idea. Hot on the heels of SB 1070, the controversial Arizona law that hands cops expansive powers to detain anybody who gives off an insufficiently American vibe, Republican lawmakers in the state have set their sights on a new state law to deny citizenship to babies born on American soil whose parents lack proper papers.
Currently, anyone born within U.S. boundaries counts as a U.S. citizen, and it doesn’t matter a bit how mom got in. The proposal to end "birthright citizenship" for the children of unauthorized immigrants springs from less than generous motives, and almost surely runs afoul of the U.S. Constitution. But ending it altogether is a better idea than you might think. (And if you already think it's a good idea, it's good for reasons you might find surprising.) For one, it would likely achieve the opposite of its intended result by making America more, rather than less, welcoming to newcomers.
Well-ordered societies are extended networks of peaceful and productive cooperation, and those networks don't suddenly stop at political borderlines drawn by conquest and colonization. Americans and Mexicans are deeply intertwined by blood, soil, travel, toil and trade. After all, Arizona was Mexico once upon a time, until the U.S. seized Northwest Mexico and pushed the border south. Efforts to arbitrarily segregate people tied by history, culture, and mutual economic interest are bound to fail. The Draconian Arizona model of immigration reform seeks to complete the colonizing work of Manifest Destiny by instituting a more perfect apartheid. It seeks to address the perception of a breakdown in the rule of law by ignoring causes in favor of aggressively treating symptoms. Higher walls. More guards, more guns, more jails. Your papers, please.
The alternative is to secure a peaceful and humane order through policies that acknowledge the cultural, economic, and geographical unity of northern Mexico and the American Southwest. The rule of law demands a clear set of equitable rules that respects and regulates natural patterns of traffic, that sets and sustains long-term expectations, that facilitates and channels the fundamental human inclination to seek out opportunity and the benefits of cooperation. To set up a stop sign every five feet and then to crack down on people who don’t follow the rules misses the point. So does establishing an imaginary line that restricts trade and travel while making a muddle of citizenship.
Fortunately, we already have a model of sensible reform from a frequently insensible place – the European Union. By establishing a common labor market in which Americans and Mexicans (Canadians too!) may range freely, living and working where they please, we can channel the commercial energy of integration while maintaining distinctly separate citizenship. Indeed, the feasibility of this arrangement requires maintaining a clear distinction between the right to live and work in another country's territory and the right to the benefits enjoyed by its citizens. It is a fact of modern life that the redistributive nation-state offers all manner of goods to citizens. To be a citizen of a wealthy country is a lot like being a member of a private club. Yet even the wealthiest national clubs are straining to deliver the benefits promised to members. If a club's rules permit visitors, invited or not, to mint new members simply by giving birth, cash-strapped current members are bound to object.
The EU’s shortcomings, from bureaucratic micromanagement to a floundering common currency, have obscured its great practical and moral triumph: the dramatic expansion of European mobility rights and the inspiring integration of the continent's labor markets. When Britain opened its labor markets to Polish workers in 2004, the gap in average income between the two countries was about as big as that between the United States and Mexico. But per capita GDP in Poland has improved markedly since then, hastening the day when Poland provides a robust market for British goods – and possibly British labor, too. Similarly, by 2012, Romanians and Bulgarians, who are on average poorer than Mexicans, will be able to live and work in rich countries such as France, Germany, and Britain. It’s worth noting, however, that not a single EU country has a birthright citizenship rule like that in the U.S.
Birthright citizenship made sense for a frontier country with open borders, newly freed slaves, and a small, remote bureaucracy. But the time seems ripe to consider alternatives. Ending full birthright citizenship leaves open many intermediate possibilities, such as granting citizenship to children born to foreign citizens who have legally resided in the country for a predetermined number of years. In response to agitation over a growing population of Turkish guest workers, Germany changed its rules to grant citizenship to Germany-born children of Germany-born children of resident foreigners.
There's ample reason to believe a change in policy could make America a more immigrant-friendly place while simultaneously restricting the costly benefits of citizenship. Though undocumented immigrants are ineligible for most forms of government assistance, their America-born kids do qualify, which is no doubt an attraction to some prospective immigrant parents. The hard-right Arizona State Sen. Russell Pearce speaks for many Americans when he says birthright citizenship "rewards lawbreakers." What's more, because these children, once grown, can sponsor family members for authorized migration, they function as border-spanning bridges over which a retinue of relatives may trod. These relatives, once naturalized, can in turn sponsor aunts and uncles and cousins without end. Hence the fear of the "anchor baby," a gurgling demographic landmine set to explode into a multi-headed invasion of Telemundo fans.
This line of thinking may be ugly, but there is no doubt that many Americans subscribe to it. According to Rasmussen Reports, 58 percent of Americans oppose birthright citizenship for kids of undocumented immigrants. However, those who wish to be rid of birthright citizenship – whether to hasten the freedom-enhancing arrival of a pan-American labor market (like me) or to put an end to the imagined scourge of anchor babies (like Sen. Pearce) – face a truly formidable obstacle: the 14th Amendment of the U.S. Constitution.
"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," states the first sentence of the 1868 amendment. Longstanding precedent has established that the immigration status of the mother is usually irrelevant to the child's qualification for full membership in Club America. Arizona’s Pearce, who promoted the state’s vile SB 1070, argues that the 14th Amendment "was not intended for illegal aliens." But his constitutional case is hopeless. There were no "illegal aliens" in 1868. Back then, lawful residence in the U.S. merely required stepping over the border or onto the shore. Pearce's argument won't fly in court.
Consequently, any move to thwart birthright citizenship will require a Constitutional amendment. So let's get to work! It's a big task, and if it's going to happen, it's going to require the cooperation of unlikely allies. Russell Pearce, call me.
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