A Nonoriginalist Challenge to Birthright Citizenship for Illegals – Part I: Embracing Legal Immigrants

With immigration – both legal and illegal – being the subject of debate these days, I thought I would blog a few posts on the issue generally and on the Fourteenth Amendment’s Citizenship Clause in particular.  To sum up my positions, I strongly favor legal immigration, I believe the original meaning of the Constitution requires birthright citizenship for the children of illegal aliens born in the United States, but I believe that a reasonably strong nonoriginalist argument can be made against such birthright citizenship for illegal immigrant children.

To begin, I favor legal immigration. The United States is a country of immigrants and it has been greatly enriched by such immigrants. The nation should allow large number of immigrants to enter its borders. Sadly, the welfare state probably makes it necessary to allow fewer immigrants in, but still large numbers should be admitted.

Not only do I favor immigrants based on public policy reasons, I also sympathize with them. I think of myself as coming from a family of immigrants, with three quarters of my grandparents being immigrants. And my wife, and her family, are also immigrants.

I do oppose illegal immigration, for a variety of reasons. One reason is that I do not believe the country can tolerate open borders. Another is that the country should be able to determine both the number and types of immigrants it wants to admit. Illegal immigration undermines these controls.

It is an interesting question which immigrants the United States should take. One possibility is to determine who are the best immigrants and to allow them in. Perhaps we should take a disproportionate number from countries with liberal democratic cultures and with skills that the nation needs. Or perhaps we should take them from a cross-section of the countries of the world based on a kind of equality principle.

But I don’t believe that the current arrangement can be justified, where a very significant number of immigrants (both legal and illegal) from Mexico live in the United States. There is no good reason, either based on equality or benefit to the United States, to admit such a large percentage from one country (or from countries in Latin America).

Having stated my political views on immigration, I will turn in future posts to the related but distinct question of birthright citizenship.