Postscript: Birthright Citizenship is a Right, Not a Gift
The federal government seeks to recast a fundamental right into a mere act of discretion.
Welcome to New Jersey Insight, a periodic newsletter to make law and politics (through a New Jersey lens) more accessible.
Before I go (sort of) off the grid for a family spring break, I wish to comment on one aspect of this week’s blockbuster case at the U.S. Supreme Court on birthright citizenship. I’ve covered much of the background and the question that is now before the Court in my prior post.1
A lot of ink has been spilled covering the matter since the oral arguments on April 1, but today, I want to focus on how the federal government seeks to transform the right of birthright citizenship from an intrinsic part of the mosaic of rights that every American enjoys to one that is something far different.
In Executive Order 14160, which limits birthright citizenship, the President reframes the right of citizenship as a “privilege” that is a “priceless and profound gift.” During oral arguments, the Solicitor General repeated this framing to the Court and argued that “unrestricted birthright citizenship...demeans the priceless and profound gift of American citizenship.”
Let that sink in for a moment. As we know, a gift is a mere act of discretion. It is a voluntary transfer of something of value from one person to another that is motivated, perhaps, by a positive feeling or sentiment. The donor has no obligation to convey a gift, and the recipient has no right to receive it.
A right, on the other hand, is something that is due. It is an entitlement. And in the words of Thomas Jefferson, a right can be inalienable.
Here, the federal government wishes to transform the right of birthright citizenship—a right codified at the end of a bloody Civil War to address a horrific injustice—to a mere benefit that can be given on a whim and taken away just as easily.
With the weight of history behind us, and with the view of generations ahead of us, we ought not to countenance such a transformation of a critical precept in our Nation’s charter.
I hope that the Court agrees.
In brief, the Court will decide whether the President, by executive order, can limit the reach of the Citizenship Clause of the Fourteenth Amendment, which guarantees citizenship to all those “born...in the United States, and subject to the jurisdiction thereof, are citizens of the United States,” to only the babies of citizens and lawful permanent residents.