Why do we have birthright citizenship, and should it change?

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Marco Werman: Last week, on the 70th anniversary of the atomic bombing of Hiroshima, we ran series of stories on how survivors’ memories are being passed on. You can find those stories and our animated videos asking who tells the story of Hiroshima and who listens. That’s all at PRI.org/Hiroshima. Now, Akiko’s grandfather was born an American citizen thanks to the 14th amendment. And the 14th amendment is clear: “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 only way that could realistically change would be by another amendment to the constitution. I guess that’s what Donald Trump is proposing in his opposition to so-called birthright citizenship, though he’s not the only republican candidate who holds that view. Margaret Stock has written in-depth on the issue of so-called birthright citizenship. She’s an immigration lawyer based in Anchorage. The principle of birthright citizenship was inherited from English common law, so I asked Margaret Stock why the 14th amendment was thought necessary.


Margaret Stock: The people who passed the 14th amendment wanted to take things out of the hands of the politicians in Congress. They didn’t trust the politicians and they didn’t trust Congress, so they thought if they put the principle into the constitution, then it would be harder for Congress or a president to change it.


Werman: So, this was 1868 and specifically thinking of slavery and race.


Stock: Yes, they were thinking of slavery and race and they were also thinking of the terrible Supreme Court decision, called the Dred Scott decision, and they also didn’t want to leave the issue in the hands of judges.


Werman: Right. Now, when you write about the Dred Scott in 1857, you point out that the Supreme Court determined that the pathways to US citizenship were not open to people of African descent. That would be reversed after the Civil War, but, I mean, it shows just what a kind of ugly history this current debate that Donald Trump has started comes from.


Stock: Yeah, I’m not sure he’s aware of that, but the idea was that they would take a whole group of people and make them ineligible for citizenship on the basis of their race, and that concept has recurred at different times in American history, but the whole point of the 14th amendment was to say, “No, we’re just going to have one rule for everybody, regardless of their race. We’re not going to say that a group of people are excluded from American citizenship based on their race.”      


Werman: What exactly is Donald Trump proposing?


Stock: Well, it’s not really clear. He hasn’t specified the details, and, of course, the devil is in the details. He’s simply said publicly that he thinks the birthright citizenship rule should be changed. He hasn’t pointed to a particular proposal that he supports, and so it’s a little bit hard to parse out. There are a lot of different proposals that have been kicking around I’d say for the last 30 years and they all have different rules. Interestingly, under some of them Donald Trump himself wouldn’t be a citizen, wouldn’t be eligible for the presidency, and under some of them his son, Baron, wouldn’t be eligible.


Werman: How does that work out?


Stock: Well, Donald Trump’s mother was an immigrant and one of the proposed rules would be that if you owed allegiance to another country, you wouldn’t be a citizen at birth in America. His mother owed allegiance to the queen of England.


Werman: Why do you think the US should cling on to this idea of citizenship by birth? I mean, a lot of countries have kind of legislated away from it, although notably France just turned back to it.


Stock: Well, we’re the only country that fought a civil war over the principle. Millions of people lost their lives, millions of soldiers and other people lost their lives fighting over this principle, so we have quite a history. It’s also a principle of equality. It’s very, very American. It says everybody starts off life the same, nobody is treated differently, we don’t have different social castes. And, essentially, if you get rid of this, you end up with a very complicated, very expensive social caste system where some people are more equal than others.


Werman: What’s the reason some countries have legislated away from citizenship by birth, like in the UK? What’s their rationale?


Stock: Well, a lot of them are the same reasons we might do it: we’re afraid of other groups of people coming in and having children, and we’re afraid of them, so we want to change the law. The countries that have changed it, by the way, don’t have a constitutional principle, so it’s easy for them to change. And Ireland is a good example--they had a couple stories in the news that frightened people and so all of a sudden they changed their rule. But now they’re starting to regret it because it does create a two-tier caste system in society.


Werman: Margaret, I want to put this question to you because you’re not just a lawyer, you’re also a veteran, you retired as a lieutenant colonel in the US Army’s military police. What do you make of these two women who are graduating from US Army Ranger School this week?


Stock: Oh, I’m very proud of them. I noticed they’re both graduates of the United States Military Academy at West Point, New York. I taught there for many years and I think it’s wonderful. I’m glad they’ve had this opportunity. I didn’t have that opportunity when I was a younger officer; I think I would’ve enjoyed going to Ranger School.


Werman: Yeah, I was going to say, would you have taken it? They weed them out almost like more than 50%.


Stock: Yeah, you know, the Army is tough but it’s going to those challenging schools that really make it worthwhile.


Werman: Margaret Stock, lawyer in Anchorage, Alaska and a veteran. Thank you very much for your time today.


Stock: Thank you.