Affirming humanity at the Supreme Court

The oral argument at the Supreme Court over Arizona's immigration enforcement law has "utterly depress[ed]" Linda Greenhouse of the New York Times.

Not, she tells us, because the Court seems poised to uphold the law (which she presumably disfavors on policy grounds). No, Greenhouse's depression was caused by "the failure of any participant in the argument, justice or advocate for either side, to affirm the simple humanity of Arizona’s several hundred thousand undocumented residents."

Let me get this out of the way, so as not to contribute to anyone's mental illness: I affirm the humanity of Arizona's several hundred thousand undocumented residents. They are human beings, entitled to be treated with all the respect and dignity that this status necessarily entails.

But what, exactly, did Ms. Greenhouse—a seasoned journalist who has covered the Supreme Court for decades—expect? Perhaps that the Solicitor General would clear his throat, take a moment to compose himself, and say:

Let's take a moment to talk about something other than the federalism issues in this case. Let's talk about humanity. Let's talk about our feelings. Because if we don't, someone in the gallery might get sad. Lookie here: I have a visual aid. It is a picture of a four-year old girl's face. As you can see, her beautiful brown eyes are gigantic. [Clears throat as he chokes back tears.] Stare into them for a moment, Justice Alito. This four-year old is an American citizen because she was born here. But her mother is not an American citizen. She's an "illegal"—an undocumented resident of Arizona who may be targeted under this law. This law may or may not be "constitutional," but I beseech you, Justice Scalia, have a heart!!

What depresses me is that Ms. Greenhouse did apparently expect something like this.

Thankfully, "Lady Madonna" just came on my iTunes shuffle, and I can't stay sad when that song's playing. Ms. Greenhouse, if you're reading: I recommend giving it a spin to help get you out of your funk.

Just a little more on birthright citizenship

The relevant portion of the 14th Amendment defines a US citizen as anyone "born or naturalized in the United States, and subject to the jurisdiction thereof."  Is there an argument that the children of illegal immigrants do not qualify as citizens under this clause because they are not "subject to the jurisdiction" of the US?

Over at Balkinization, Professor Mark Tushnet argues that the answer is at least non-obvious.  He acknowledges that "the Supreme Court said 'No' in Wong Kim Ark (1898), but, notably, over two dissents."  Of further note, I think, is that this same Supreme Court decided Plessy v. Ferguson just two years earlier (with Justice Harlan famously dissenting in that case as well).  So maybe they were just in a rut.  Tushnet's broader point is seems to be that liberals shouldn't invoke the "living constitution" only when it suits their ends, but should apply the same interpretive analysis in every case.  Which means that "subject to the jurisdiction" might have some bearing on birthright citizenship after all.


Indeed, much has changed since 1868 (when the 14th amendment was ratified) and 1898 (when Wong Kim Ark came down).  For one thing, we have an enormous welfare state that has drastically altered the relationship between the individual and the state.  The availability of welfare benefits provides perhaps too much incentive for the poor huddled masses to flock to our shores.  This is one reason, clearly, that we restrict immigration more than we used to, as a policy matter.  To someone who believes in a living constitution, it should probably affect the interpretation of the 14th Amendment as well.

(Tushnet's point brings up a point that has always bothered me:  it seems that if the constitution is living, it is hanging out in Manhattan, where it "do[es]n't know one Bush supporter."  Shouldn't we have to worry that, like many other living Americans, the constitution might shrug off its youthful naivete and become a conservative in its dotage?  And if the constitution really changes with the times, how can anyone criticize President Bush for working to expand executive power after 9/11 changed everything?)


While I'm finishing up on this topic, here are a couple other interesting links:


1)  The New York Times does one of its "Room for Debate" things on birthright citizenship.  Except that apparently there is no room for debate on this one, because all four contributors say basically the same thing.  (The commentators are probably all buddies of Arthur Miller.)  (CORRECTION:  since I read the piece earlier today, they have added a dissenting voice (Mr. Camarota).)

2)  Over on PrawfsBlawg, Rick Hills and Peter Schuck (whose op-ed I posted about the other day) have a spirited exchange on the topic. 

More on Birthright Citizenship

Yale law professor Peter Schuck has a thoughtful op-ed in the New York Times about birthright citizenship.  I agree with his sentiment that "[t]his question is much harder than the zealots on both sides suggest."  While there is something incongruous about granting birthright citizenship to a child whose parents snuck into the country in open violation of its immigration laws, we do not generally punish children for the sins of their parents.  This is a pickle, especially to the extent that allowing birthright citizenship gives people from poor countries a powerful incentive to come to our wealthy country and take advantage of our (relatively) generous welfare benefits.

But what parent wouldn't do this for their child, if they could?  It is pretty easy to justify committing the purely political crime of crossing a political border (i.e., an imaginary line) without papers if it means a better life for your children.  (In other words, Wendy Murphy's argument that illegal immigrants are using their children as a "thing" that they "barely love[]" is exactly wrong--to the extent that birthright citizenship motivates foreigners to come here to give birth, the motivating factor is the human desire to provide a better life for their children.  This is the purest love there is.)

Fear of strangers and foreigner cultures is an innate human characterisitc, I think.  But openness to immigration is, or has been, a uniquely American characteristic.  As Professor Schuck notes, illegal immigration and "anchor babies" were not problems foreseen when the 14th Amendment was ratified because "at the time, federal law didn’t limit immigration, so no parents were here illegally."  This was the regime in place when many of our ancestors arrived here.  We should be proud of this history, and have some humility about the circumstances that made us American citizens.  For must of us, we are American simply because we were born here.  And we were born here, many of us, only because our ancestors arrived when this country was taking all comers.  (For most of the rest of us, our ancestors arrived here when the country was taking all comers except racial and ethnic "undesirables"--a fact which necessitates its own kind of humility.)

I tend to take it on faith that immigrants are actually an unalloyed good for this country.  Immigrants--whether "illegal" or legal--are, by nature, industrious and willing to take risks.  So they have within them the stuff of Americans.  We should make immigration easier, not harder.  My view is that any immigrant has six weeks to get a job here, and if they get one then we should say "welcome to America, here are your papers."

The Anchor-Baby Myth

One argument of Wendy Murphy's that I won't even try to defend is her rant about illegal aliens who supposedly come to the US to have babies, and then use these (citizen) children to get some sort of immigration advantage:

I know we're talking about babies, and it's hard to be tough on babies, but let's remember, we're talking about illegal aliens coming to this country for the purpose of birthing a child, not because they love the kid, but because they want the child to provide them with the benefits of U.S. citizenship. In other words, that's not the kind of child who's going to be raised well and be a productive citizen. The child is barely loved. It's more like a thing and a commodity than a human being.

This argument--that illegal aliens are soulless automatons who procreate solely for the purpose of a green card--is ridiculous on every level.   It's like an Onion satire of a conservative argument.  Not just because it implicitly dehumanizes both the parent and child--but also because so-called anchor babies actually confer practically no rights on their illegal-alien parents.  If an illegal alien who has a citizen child is picked up by immigration authorities, the child's existence is not a defense to deportation (unless the alien can "prove ten years of good moral character and that deporting her would be an exceptional and extremely unusual hardship to her US citizen child").  What will happen in almost every case is that parent will be deported and the child will go with the parent.  Why?  Because the parent loves its child and doesn't want to leave it behind in a foreign land.

So, to my mind, recent rhetoric about amending the 14th Amendment to restrict the right of birthright citizenship is aimed at a problem that doesn't really exist.

But see:  this recent article about Chinese nationals purposely planning to be in the US when they give birth so that their children will have the gift of US citizenship.  This is, perhaps, a whole other kettle of fish.

FULL DISCLOSURE:  I played a very, very small role in doing some prop bono research on this topic at my last job.