Yesterday, I had the pleasure of speaking at the Constitution Day event at James Madison University about “Rage and the Republic.” and various constitutional issues. During the event, organized by the James Madison Center on Civic Engagement, one student asked me what I would change about the U.S. Constitution. I said that I would amend the Constitution to eliminate birthright citizenship, as have other nations who once followed this ill-considered practice. Well, Sen. Rand Paul (R., Kentucky) has wasted no time. He just reintroduced his bill to ban birthright citizenship.
I have previously written about the possible need for such an amendment after the decision in Trump v. Barbara.
With that decision, the matter now rests not with the court but with the country. We have never truly had a national debate over the practice. The basis and future of birthright citizenship have remained matters almost exclusively for the courts.
Most countries in the world reject this controversial policy. Our closest allies in Europe reject birthright citizenship and follow the common practice of “jus sanguinis,” or right of blood. We are part of a smaller number of countries following “jus soli,” or right of soil.
Various countries that once followed the practice later amended their constitutions or laws to get rid of it. That is what would need to be done with a 28th amendment.
It is time that we have a civil and substantive debate over birthright citizenship in the United States. Given that the states are Democratic-controlled, it is unlikely that an amendment would pass; as noted, we have never been given this decision at the national level. Even with the 14th Amendment’s ratification in 1868, there were differing views on the meaning of the critical line: “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.”
Both sides have good-faith arguments, but the time for that debate is long overdue.