Let me start by thanking Dan and Al for inviting me to guest-post. I'm very pleased to take part. As Al mentioned in his introduction, one of my main areas of research is immigration, in particular, investigating the limits that considerations of justice place on the discretion that states should have in setting their own immigration policies. While not all of my posts here will be on this topic, I wanted to start with one in this area, dealing with a subject that is in the news these days.
Jus soli is the principle that says that someone born within a territory is a citizen of the territory. Many states have some variation of this rule while many others lack it. While we in the U.S. are most familiar with the version that derives from the 14th Amendment, whereby anyone born in the U.S. at all, with no other qualifications, is a citizen,[1] other, weaker versions of the rule are possible. For example, a country could have a rule that anyone born in the country to parents lawfully admitted for permanent residence would be a citizen, but other children would not be; or that a child born in the state who remained in the state of her birth for 5 years would be a citizens, but if she left and returned to another state in which she would have citizenship rights (though her parents, perhaps), then she would not have access to citizenship in the country in which she was born. These weaker rules remain, I think, recognizable as versions of the jus soli principle. In a paper forthcoming in the Maryland Law Review , I argue that justice requires all states to have some version of the jus soli principle, but that the very strong version used by the U.S. is not itself a requirement of justice. I won’t go over those arguments here, but rather want to consider whether the U.S. might have particular reason to retain its strong jus soli, rule even if it is not generally required by justice.
In my paper I noted a number of pragmatic arguments for having a jus soli rule as strong as that the U.S. has. An example of such an argument is that from administrative efficiency. In a country like the U.S., where birth records are generally regular and well maintained, using birth, as opposed to birth plus continuous residency for some years after birth, as the trigger for citizenship, is likely to be more efficient and to expose many fewer people to a wrongful denial of citizenship. Such arguments would apply in most states today. I am here interested in an argument that I did not consider in my paper about why a strong jus soli rule like that in the U.S. might be especially appropriate for the U.S., even if it would not be for some other states.
As noted above, the strong jus soli rule in the U.S. is derived from the text of the 14th Amendment, and this amendment was, of course, put in place to help end the racial subjection of African Americans after the civil war. Obviously, racial tension did not end after the civil war, and we must continuously work to prevent racial subordination from gaining ground. Few people today believe that we have overcome all elements of racial division in this country. This history of racial animosity has a long history in our immigration system as well, made most obvious in the days of the “Chinese Exclusion Act”, which forbade immigration by most Asians for a long period. Similarly, while less obviously racist, the long-standing country of origin quotas in our immigration system also clearly demonstrated racial and ethnic animosity. It is my belief that, without the strong jus soli principle we have in the U.S., immigrants from “non-white” countries would have been forced into a permanently 2nd-class non-citizen status. Similarly, much of the anti-immigrant legislation today seems to clearly have racial undertones, whether it is directed “illegal immigrants” from Mexico and Central America or at immigration by Muslims. More recently, the backers of the anti-immigrant legislation in Arizona have argued that jus soli citizenship should be restricted in certain cases. The legal arguments of the proposed changes are weak and unlikely to gain much ground in the courts if the proposed bill were enacted. But more importantly for my purposes, we see again racial animosity at work here. The strong jus soli rule we have helps prevent the development of a true permanent non-citizen underclass. While not alone sufficient for that task, it seems to me to be a necessary element. In states without the history and on-going role of racial subjection, such a strong rule may not be needed. But, it seems to me, the particular history of the U.S., and our on-going problems with racial discord, give us good grounds beyond the merely practical for favoring a strong jus soli rule like the one we currently have.
[1] There are a few exceptions to this, but they are extremely rare- children born to registered diplomats, to prisoners of war, and children born to non-citizens on warship in port, for example. We can here safely ignore such cases.
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