Of the flurry of executive orders that President Donald Trump signed on his first day in office, there is one that I find most troubling: the effort to cancel birthright citizenship. The understanding of the 14th Amendment’s grant of citizenship to “all persons born and naturalized in the United States, and subject to the jurisdiction thereof” has been stable for more than a century and a quarter.
The key test came in 1898, when a Chinese-American (though back then the term would not have existed) named Wong Kim Ark was barred from re-entering the United States after a visit to China. Ark had been born in San Francisco to parents who could not become citizens because of the Chinese Exclusion Act. The U.S., under President William McKinley, argued that meant Ark was not eligible for citizenship himself. The Supreme Court ruled that, whatever the status of his parents, Ark was a citizen of the United States.
It was an admirably prescient decision: While it took until 1943 for the blatantly bigoted Chinese Exclusion Act itself to be repealed, the justices of the late 19th century saw clearly that the way forward for the U.S. was to stick with the basic precept that those born on U.S. soil are Americans, full stop. This is not the typical way of the world. Most countries, including much of Western Europe, have significant restrictions on who can automatically get citizenship at birth; Ireland even eliminated unrestricted birthright citizenship in 2004.
Yet if there was ever an issue on which to say, “We’ll just do it our way,” this is it. The U.S. does have a legitimate interest in controlling the border; the redefinition of every border crosser as an “asylum seeker” has created a genuine crisis. But it is not one to be solved by visiting the immigration sins of the parents on another generation — especially with an executive order of showy symbolism and deeply dubious constitutionality. “Born here, citizen here,” is the very essence of American exceptionalism. I would wager that today’s Supreme Court, like that of 1898, will affirm that. But I am saddened that after all this time it is again being put to the test.
This is the editor’s letter in the current issue of The Week magazine.