US Supreme Court Upholds Birthright Citizenship Despite Presidential Challenge
An Executive Order Against Citizenship, and Against Justice
A president’s bid to narrow birthright citizenship by decree offends both the rule of law and the quiet conditions on which a prosperous, humane society depends.
The scene, as it has been described to me, is the chief magistrate in his office, declaring that his government will “again” limit birthright citizenship by executive order. The measure is said to strike at what is called birth tourism and to enlarge the class of parents whose children, though born upon the soil, shall not be counted citizens. All this follows immediately after the highest court has upheld a long‑standing rule to the contrary and rejected a previous attempt to alter it. One of the president’s own countrymen, versed in the law, observes that once a child is born within the territory, the president has no power to say that the child is not a citizen.
When I wrote, in An Inquiry into the Nature and Causes of the Wealth of Nations, of the duties of the sovereign, I put foremost the exact administration of justice, by known rules interpreted, not by the humour of the prince, but by independent tribunals. Citizenship is no light trinket, to be taken up or laid down like a fashion in dress. It determines who may claim protection, who must obey the law, who belongs to the political community. To leave so grave a matter to the stroke of a pen, in defiance of a recent judgment, is to convert what ought to be a rule into a favour.
The visible object of the decree is, I am told, a modest practice: some foreigners, in a very large population, travel ostensibly as tourists in order to give birth, securing citizenship for their offspring. The gain here is clear and concentrated: a passport for the child, a possible future in a wealthy country. The alleged cost is cloudy and diffused: some burden upon schools or hospitals, some uneasiness about cohesion and loyalty. In all such questions prudence bids us ask who in fact pays. Those who can afford long journeys and medical attendance abroad are rarely the class whose subsistence trembles upon small changes in public charges.
Yet the labouring poor, in this matter, are not merely taxpayers; they are citizens, and their chief wealth is their secure station as equal participants under a stable law. When the rule ceases to be that all born here are citizens, and becomes instead that some shall be sifted by their parents’ condition, as defined by fluctuating decrees, that equality is impaired. The man of system, enamoured of his own contrivance, may imagine he is only correcting an abuse. But on the great chess‑board of human society, every piece has a principle of motion of its own. Parents, officials, and future rulers will all respond to the new arrangement in ways no minister can foresee.
In The Theory of Moral Sentiments I proposed that we judge conduct by imagining an impartial spectator: well informed, disinterested, neither heated by faction nor lulled by flattery. Such a spectator, contemplating a child born within a country’s acknowledged bounds, will hardly approve a device by which that child is denied membership, not by a general law, openly debated and prospectively applied, but by an administrative expedient devised to escape a court’s decision. The hardship falls, not upon calculating parents, but upon the innocent who calculated nothing at all. To punish people for an action they could not possibly refrain from – such as the place of their birth – is the very pattern of injustice.
Nor is the mischief confined to moral sentiment. In the Wealth of Nations I observed that the division of labour is limited by the extent of the market. A broad, predictable membership in the polity enlarges that market: it multiplies the number of persons who may safely contract, invest in their own instruction, and look forward to a future within the society. Uncertainty about who truly belongs, and whether today’s rule may be overthrown by tomorrow’s command, narrows that market and restrains enterprise. It is vain to boast of great works and opulent commerce, if at the same time the foundations of civic status are shaken.
I do not question that some who favour these measures persuade themselves that they act from zeal for the public. But human nature being what it is, I expect the deception of ambition to play its part. The pleasures of appearing resolute, of rebuking a court, of being seen to guard the national gates, are immediate and flattering. The pains – the slow erosion of respect for law, the embittered youth come of age, the precedent ready for less scrupulous hands – are remote and obscure. Any scheme that depends upon citizens tamely enduring arbitrary exclusions, and upon future rulers renouncing a power once asserted, demands more virtue than experience allows us to hope for. It risks sacrificing the quiet security of the many to the noisy vanity of the few.
From the works cited
- An Inquiry into the Nature and Causes of the Wealth of Nations — The sovereign's three duties (defence, justice, public works and institutions) and the four maxims of taxation: equality, certainty, convenience, economy.
- An Inquiry into the Nature and Causes of the Wealth of Nations — The division of labour is limited by the extent of the market: stable, predictable rules widen the market and enrich society.
- The Theory of Moral Sentiments — Judge conduct by the impartial spectator: what would a well-informed, disinterested observer feel about this action?