Feature 10.25.2018 10 minutes

The Case Against Birthright Citizenship


It's stronger than you think.

Our Features section hosts clusters of articles on a single theme, and will often include opposing points of view and spawn debate.

This week’s feature is a debate centered around an event moderated by Ryan Williams, President of the Claremont Institute, and hosted by The Heritage Foundation on September 27, 2018. Claremont Institute Senior Fellows Michael Anton and Edward Erler, along with Claremont Review of Books Contributor John Fonte, discussed “The Case Against Birthright Citizenship:

This week, in “Citizenship, Immigration, and the Nation-State,” Ed Erler lays out what he perceives is at stake, replying to “the hysterical arguments made by progressive liberals and others who should know better.”

Meanwhile, our friends Linda Chavez and John Yoo argue against the position of many from Claremont. In “The 14th Amendment’s Promise” Linda Chavez argues birthright citizenship should be an uncontroversial right. John Yoo argues in “Settled Law: Birthright Citizenship and the 14th Amendment” that the 14th Amendment settled the question of birthright citizenship long ago.

Erler replies to Yoo and other critics in “The Citizenship Clause of the Fourteenth Amendment: the Congressional Debate” and, most recently, “Birthright Questions, Founding Answers.”

In “It’s the Citizenship, Stupid,” James Poulos explores the hollow contemporary notion of citizenship, and why it is increasingly questionable.


Birthright Citizenship: A Claremont Primer

A heated national conversation about birthright citizenship and the 14th Amendment is currently underway, and we think many politicians, pundits, and scholars on both the right and left are getting it wrong. Claremont Institute scholars have been thinking and writing about this problem for many years. For a broad Claremont perspective, including how the Founders thought about the question of immigration and how our understanding has changed, we encourage you to buy a copy of The Founders on Citizenship and Immigration: Principles and Challenges in America, featuring the scholarship of Claremont scholars Edward J. Erler, John Marini, and Thomas G. West.

Below we’ve collected recent and past writings and video to provide some guidance on the relation between constitutional principles, citizenship, and immigration policy as we understand it.

Claremont Institute Senior Fellow Michael Anton

Anton recently reignited the debate over immigration policy in June, 2018 with a Washington Post op-ed entitled “Does the U.S. Need More Immigrants?” and an appearance on Tucker Carlson Tonight:

He followed up with another op-ed in the Washington Post in July entitled “Citizenship shouldn’t be a birthright” and another appearance on Tucker Carlson Tonight:

Anton responded at length to the ensuing firestorm with “Birthright Citizenship: A Response to My Critics,” “Social Compact, American Style,” and “National Review’s Latest Defense of Birthright Citizenship.”

Claremont Institute Senior Fellow Edward J. Erler

Erler launched a public debate on the issue in his August 19, 2015 National Review article entitled “Trump’s Critics Are Wrong about the 14th Amendment and Birthright Citizenship.”

He gave a lecture at Hillsdale College on April 11, 2018 entitled “Immigration and American Citizenship”:

On Sep 29, 2017, The Claremont Institute commemorated the 230th anniversary of the signing of the U.S. Constitution with this panel on Immigration, Citizenship, & the Trump Administration including these remarks by Ed Erler:

In 2013, he discussed “The Problem with Birthright Citizenship” on The American Mind, hosted by Charles Kesler, Claremont Institute Senior Fellow and Editor of the Claremont Review of Books:

For Imprimis, he has recently written “Birthright Citizenship and Dual Citizenship: Harbingers of Administrative Tyranny,” “Who We Are As a People—The Syrian Refugee Question,” and “Does Diversity Really Unite Us? Citizenship and Immigration,” all of which bear directly on the issue.

Erler wrote this short summary of the meaning of the citizenship clause of the 14th amendment for The Heritage Foundation’s Guide to the Constitution.

See also his book review entitled “Hedging Allegiance” in the Claremont Review of Books, and his USA Today op-ed “Children of illegal immigrants are not U.S. citizens.”

Claremont Senior Fellow John Eastman

Eastman is the founding director of The Claremont Institute’s Center for Constitutional Jurisprudence. He responded recently to Michael Anton’s critics in “Dred Scott? Seriously?” at American Greatness.

On Sep 29, 2017, The Claremont Institute commemorated the 230th anniversary of the signing of the U.S. Constitution with this panel on “Immigration, Citizenship, & the Trump Administration,” including these remarks by John Eastman:

To hear Dr. Eastman discuss the history, politics, and meaning of the 14th Amendment’s citizenship clause, watch this 2007 interview:

The Federalist Society hosted a debate in 2015 between Eastman and John Yoo, Emanuel S. Heller Professor of Law at the University of California Berkeley School of Law, on whether the 14th Amendment mandates birthright citizenship (link is to a podcast of the debate).

The Federalist Society hosted a debate in 2011 between Eastman and Judge James C. Ho on birthright citizenship (link is to a podcast of the debate).

For a succinct discussion of the problem, read Dr. Eastman’s article for National Review: “We can Apply the 14th Amendment While also Reforming Birthright Citizenship”

See also his legal memorandum, published by The Heritage Foundation in 2006: “From Feudalism to Consent: Rethinking Birthright Citizenship

For a more thorough scholarly analysis, read his congressional testimony: “Born in the U.S.A.? Rethinking Birthright Citizenship in the Wake of 9/11

Claremont Senior Fellow Matthew Spalding

Spalding raised the question in “Should the Children of Illegal Aliens Be U.S. Citizens?” and his U.S. News & World Report op-ed: “14th Amendment Doesn’t Make Illegal Aliens’ Children Citizens


Frequent Claremont Review of Books contributor and summer fellowship faculty member Richard Samuelson provides more historical and legal context in his essay for The Federalist: “Birthright for Whom?”

In the fall 2013 issue of the Claremont Review of Books, we hosted a symposium on immigration and American exceptionalism, featuring contributions by former Secretary of Education William J. Bennett, former Secretary of Labor Linda Chavez, Ethics and Public Policy Center Senior Fellow Stanley Kurtz, and Claremont Institute Senior Fellows Angelo Codevilla and Edward J. Erler.

Hillsdale Professor Kevin Portteus’s paper on “Immigration and the American Founding” is also worth reading.

Claremont scholars are not alone. Read “The Question of Birthright Citizenship” in the Fall, 2018 edition of National Affairs by Peter H. Schuck and Rogers M. Smith, based on their book, “Citizenship Without Consent: Illegal Aliens in the American Polity.” Watch the April 29, 2015 testimony to Congress given by Jon Feere entitled “Birthright Citizenship: Is it the Right Policy for America?,” or read his “Birthright Citizenship in the United States: A Global Comparison” report.

The American Mind presents a range of perspectives. Views are writers’ own and do not necessarily represent those of The Claremont Institute.

The American Mind is a publication of the Claremont Institute, a non-profit 501(c)(3) organization, dedicated to restoring the principles of the American Founding to their rightful, preeminent authority in our national life. Interested in supporting our work? Gifts to the Claremont Institute are tax-deductible.

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