Sen. Tom Cotton introduced a bill this week to eliminate birthright citizenship for children born to undocumented immigrants.
Certain other babies born in the United States would also be denied citizenship under the measure, with language so vague that it’s basically asking to be politically weaponized (more on that below). But there can be little question that immigrants are the main target of Cotton’s demagoguery.
The intent language in the legislation backs into the point, in prose at once so swashbuckling and awkward that my guess is Cotton drafted it himself: “the children of foreign spies, saboteurs, terrorists, or other hostile actors, as well as the children of illegal aliens, should not be entitled to birthright citizenship.” Sorry, children of saboteurs, tough luck. A little disappointed there’s no mention of pirates.
This won’t be going anywhere for now with Democrats controlling the Senate and Joe Biden in the White House. But Donald Trump, a convicted felon running for president, has promised to end birthright citizenship if elected.
Two Republicans of ill repute, Sen. J.D. Vance of Ohio and Sen. Marsha Blackburn of Tennessee, cosponsored the measure.
At issue here is the 14th Amendment to the United States Constitution, which states the following: “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.”
The amendment, adopted a few years after the Civil War, reversed the shameful practice of denying Black Americans citizenship. The language is pretty cut and dry. But demagogues like Cotton don’t like that it says what it says, because that means that children of undocumented immigrants born here in the U.S. automatically become citizens.
Cotton is mostly a doctrinaire Club for Growth type, with tax cuts for the rich and spending cuts for the poor his guiding light on domestic policy. But immigration is his most pseudo-populist (and Trumpy) issue. Cotton has long aimed his rhetoric at the sort of voter concerned that the nation is being invaded by people seeking asylum or illegally crossing the Southern border. The 14th Amendment, from their point of view, is inconvenient at best: “Illegals” will come and have “anchor babies” and launch a “great replacement.” You might recall that Trump himself began his first campaign for president harping on this very point (the Mexicans weren’t sending “their best people,” he said, but rather the “rapists”).
The precise boundaries of who is entitled to birthright citizenship have been hashed out in court cases over time, and I’m skipping over lots of details here. There are also special cases, like children of foreign diplomats, who are excluded because of the “subject to the jurisdiction thereof” clause. But no federal court has ever tried making the claim that Cotton is advancing, that a baby could be denied citizenship because of the citizenship or visa status of the parent. After all, the 14th Amendment plainly says the opposite.
If a law like Cotton’s passed, and a convicted felon (not to say an “illegal”) like Trump signed it into law, a court challenge would inevitably follow. Of course, thanks in no small part to Trump, the Supreme Court is a highly partisan right-wing operation at this point, so who knows.
While this is not the primary focus of the legislation, in addition to denying citizenship to any baby born to someone “unlawfully present in the United States,” the measure would also bar kiddos of anyone “engaged in a hostile occupation of, or a hostile operation in, the United States.” This language is catastrophically vague and would open the door to government tyranny of a brand that probably wets Cotton’s whistle, but should terrify basically anyone else, including right-wingers. What counts as a “hostile operation”? What about the January 6 rioters? Could their future children be denied citizenship? We know that Cotton thinks the campus protesters calling for a ceasefire in Gaza are engaged in a “hostile operation” — would he send authorities to hospitals to deport their future newborns?
Whatever your take on U.S. immigration or border policy, there is something particularly bleak about Cotton’s frontal assault on the 14th Amendment. Our nation is a complicated place with a complicated history, made yet more complicated by the early expression of genuinely revolutionary and beautiful ideals that didn’t always match the reality of our laws and institutions in practice. You might think of the 14th Amendment as one key moment when the nation took a step to enshrine those heady ideals.
Birthright citizenship — including to the children of newcomer families with no prior connection to the place — was a genuinely radical idea, a way in which America is genuinely exceptional, in both senses of the word. If Republicans want to talk about the nation’s Christian heritage, here is an idea where you can genuinely make the case: a kind of ethical universality that would have been unthinkable to the classical states of antiquity that inspired the Founders.
I’m not going to say that the authors of the 14th Amendment were thinking in exactly these terms, but I would add that in hindsight, this idea was a radical rebuke to the blood-and-soil nationalism in 19th-century Europe that would cause such unimaginable misery (that we are still living with today). This other way was a foundational notion for a nation reinventing itself in the wake of civil war — a nation that would grow into the most prosperous place the planet has ever known.
My mother’s ancestors were here before the U.S. existed as a nation, but my father’s ancestors fled the pogroms in the Pale of Settlement around the turn of the last century, in what is now Ukraine, and they arrived in this unimaginably strange place. And their children were born here. And just like that: They were Americans. There are so many stories like that. That is a profoundly different story than Western Europe. Might that be one source of strength? If we review the 20th century, which path looks like the better way?
Today, there are around 33 nations with more-or-less unrestricted birthright citizenship. Most of them are in the Americas, and colonialism surely played some role in that.
Be that as it may, birthright citizenship is a genuinely moving feature about the United States of America today. We are, of course, a nation of immigrants. As long as immigrants have come here seeking a better life, some people have wanted to turn them away. And there are always politicians to feed on that impulse, to demagogue that the “real Americans” are the ones already here. But they’re just wrong! What is an American? “All persons born or naturalized in the United States.” It is that simple. If you think just a little bit about the modern history of the world, it is frankly beautiful.
It is a legacy that dates back to the Civil War: A vision of government, of what a republic might mean, that remains revolutionary.
Cotton and Trump would dismantle all that in a fit of pique.