Post Runs White Nationalist Propaganda Masquerading As Law-Talkin'
The quest to make revoking birthright citizenship a 'mainstream' view needs to end.
Ed. note (October 30, 2018): In light of Donald Trump’s recent remarks about revoking birthright citizenship, consider this thorough takedown of the argument from last July.
When you attack birthright citizenship, I know what you are really doing. I know you are really trying to lay down intellectual covering fire, under which your argument for white nationalism can be brought to the masses. I know you are afraid of the browning of the country, I know you’ve crunched the numbers and have come to the obvious conclusion that you can’t deport your way into a future of white majorities. I know you have two options: double down on apartheid rule, or strip away rights from non-white people who you can’t stop from living here. The Electoral College is going to do the work of the former, so when you come for birthright citizenship, I know you are fighting for the latter goal.
I also know that you count on decent people being too weak or frightened to stand up to you when you try to infect people with your bigotry and stupidity.
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You can’t get an op-ed in the Washington Post if you titled it “America Needs To Be Ethnically Cleansed Of Illegals.” Somebody over there would notice that as inappropriate. But, if you call it: “Citizenship shouldn’t be a birthright,” well the Post ran that very piece of racist drivel yesterday. I’m sure somebody over there noticed that as inappropriate too… but somebody else probably said, “Hey, there are good people on both sides.”
The argument against birthright citizenship is a common one in white nationalist circles. But unlike most of their stink, this one comes perfumed with an air of Constitutional interpretation. That thin veneer occasionally gets the dumbass argument repeated or published by mainstream sources, because otherwise intelligent and upstanding mainstream non-lawyers can be easily intimidated by things that sound like they have some basis in the Constitution. Essentially, the argument comes in three parts:
1. The original Constitution did not define “citizenship.” (Non-lawyer mind = blown)
2. Birthright citizenship stems from a misinterpretation of the Fourteenth Amendment. (Non-lawyer mind = confused)
3. Birthright citizenship encourages illegal immigration. (Non-lawyer mind = intrigued)
The Post op-ed was written by Michael Anton, a former Trump national security adviser. It quotes the work of Edward Ehler, an anti-immigration author. It hits all of these classic points.
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1.
The notion that simply being born within the geographical limits of the United States automatically confers U.S. citizenship is an absurdity — historically, constitutionally, philosophically and practically.
2.
Constitutional scholar Edward Erler has shown that the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment.
3.
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Practically, birthright citizenship is, as Erler put it, “a great magnet for illegal immigration.” This magnet attracts not just millions of the world’s poor but also increasingly affluent immigrants.
Usually, these central premises stand unopposed. Lawyers don’t fight these white nationalists on the law, because their interpretation is so stupid that it’s barely worth their time. And liberals don’t fight on the law, they fight on the policy that immigration is good for the country, a point on which there is overwhelming evidence.
But, I have the time. As a wise man once said: “If the milk turns out to be sour, I ain’t the type of pussy that’d drink it.”
1. The Constitution didn’t define federal citizenship, because it was taken as an article of faith that citizenship flowed from the individual states, and not the federal government. Our entire concept of “diversity jurisdiction” rests on the concept of people being citizens of different states and not one country as a whole. That doesn’t mean that the Founders thought birthright citizenship was “absurd.” It just means that they didn’t think it was their call to make.
2. The Constitution does weigh in on the issue with the Fourteenth Amendment. Everybody agrees that the whole point was to grant citizenship to newly freed slaves, citizenship that was taken from them by the Dred Scott decision.[1] To give African-Americans citizenship, it had to be as a matter of birth. There was no other way. You couldn’t do it through whether their parents were citizens, because Dred Scott said their parents were not. You couldn’t do it as a one-time grant to newly freed slaves, because that would leave out all already free blacks. The only way to do the thing we all agree they were trying to accomplish was to make citizenship attach upon birth.
WHERE IS THE MISINTERPRETATION? These white assholes keep saying that we’re misreading the Fourteenth Amendment. HOW? The writers of the Fourteenth Amendment wanted to do a thing. They did it in the only way they could. THEY WROTE IT DOWN. Where’s the freaking confusion?
If you pin one of these jerks down, they’ll start talking about Native Americans. The Fourteenth Amendment didn’t confer citizenship to Native Americans, who were clearly born here, and thus, they argue, citizenship wasn’t meant to be a birthright. I have little patience for people who use our racism towards the First Americans to justify racism towards New Americans, but there you go. If you think that our treatments towards Native Americans was a feature instead of a bug, that’s your argument.
3. Birthright citizenship is, almost exclusively, a “New World” phenomenon. In Europe and Africa, citizenship generally flows from the parents, not the place of birth.
Why? Well… slavery. Other New World nations had the same problem America did after the Civil War. Having a system where rights flow from the parents is UNWORKABLE in a society made up of newly freed people. Conversely, European colonists wanted their kids to be citizens of their home countries, even as they were traipsing about the world, oppressing others. Almost all the countries in the Western Hemisphere tie citizenship to the land.
That reality means we can test the white nationalist assumptions that birthright citizenship has the unintended consequence of creating a perverse incentive for illegal immigration. When we look at Europe do we see countries that are free from the challenges presented by illegal immigration? No? Then I think these white nationalists need to STFU and come up with an argument that is grounded in REALITY.
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This stuff isn’t hard, folks. Birthright citizenship is NOT a controversial proposition. Mainstream media is hell-bent on creating an argument where there isn’t one, in their endless effort to normalize white supremacists. Not all arguments are created equal, and it really shouldn’t be too much to ask a national publication like the Washington Post to be able to READ THE FIRST SENTENCE OF THE FOURTEENTH AMENDMENT before publishing white nationalists’ talking points.
People who make arguments against birthright citizenship are racist, dumb, or both. Here endeth the lesson.
[1] As an aside, it’s an article of faith that Dred Scott necessitated the Fourteenth Amendment, but you could just as easily argue that Dred Scott was wrong on the law at the time it was decided. Maybe if we weren’t so quick to excuse racist white men as “trapped by their times,” we’d more easily recognize that.
Citizenship shouldn’t be a birthright [Washington Post]
Elie Mystal is the Executive Editor of Above the Law and the Legal Editor for More Perfect. He can be reached @ElieNYC on Twitter, or at elie@abovethelaw.com. He will resist.
