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Birthright Citizenship: No Having It Both Ways

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I wonder if Donald Trump’s family has a coat of arms. If not, I suggest that the most fitting heraldic symbol for the Republican presidential front-runner is an open can, labeled “worms.” The Donald has certainly demonstrated a flair for bringing controversial issues to the table. Following several amuse bouches and appetizers, it looks like the soup course is “birthright citizenship.”

The conventional understanding of American citizenship by birth is simple: If you’re born here under most circumstances, there’s no need to pass Go, collect $200, take a test on the Constitution, swear an oath, whatever. If you’re born here, you’re a citizen, the single exception occurring if you are not “subject to the jurisdiction of” the United States. That exception was thrown in to cover children born to representatives of other countries, who are also covered by things like “diplomatic immunity,”  placing them outside US jurisdiction in most respects.

Simple enough, right? But Trump (and some other Republican politicians) would like to “reinterpret” the 14th Amendment’s citizenship clause to exclude children of undocumented immigrants.

Aside from the obvious contradiction involved — “conservatives” usually howl when it’s suggested that the Constitution just be “reinterpreted” to get a desired result — there’s also a built-in trap that they don’t seem to be taking much notice of.

The only way to remove birthright citizenship from the Constitution through “reinterpretation” is to assert that the children of undocumented immigrants are not within the jurisdiction of the United States. And that’s very close to an all-or-nothing thing.

For example,  US courts can’t try or punish those accused of committing crimes while under the protection of diplomatic immunity. Why? Because the function of that immunity is to place them outside the jurisdiction of the United States.  All the US can do is declare such accused criminals persona non grata and tell them to leave.

Millions of undocumented immigrants and their children live in the United States. The project of deporting them all has failed time and time again. Is it really wise to double down on deportation efforts while simultaneously telling all these people “oh, by the way, do anything you want while we keep trying — rape, murder, anything goes — after all, you’re not within our jurisdiction, so there’s not a thing we can do about it?” That’s the unavoidable logic of denying birthright citizenship absent a constitutional amendment.

The absolute best solution to this made-up “problem,” of course, would be a return to the American way: Open the borders and quit creating “problems” that do not exist and have never existed in reality. Unfortunately, politics is the art of creating such imaginary problems and then spectacularly, expensively, disastrously failing to solve them.

Thomas L. Knapp is director and senior news analyst at the William Lloyd Garrison Center for Libertarian Advocacy Journalism (thegarrisoncenter.org). He lives and works in north central Florida.

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