What does it mean to be an American?
In the immediate aftermath of the Arizona shootings, when speculation focused on whether Jared Loughner was politically motivated, no one said we should cancel his American citizenship.
The cries to do so surely would have been angry and loud had he been an immigrant or even the child of one. After the attempted Times Square bombing last May by a Pakistani-born U.S. citizen, a bipartisan group of lawmakers led by Sen. Joseph I. Lieberman introduced a bill to "denationalize" any citizen engaged in terrorism against the United States.
I raise this contradiction not to score a point against the Lieberman bill - which I find sensible in many ways - but to underline the urgent need to address questions of citizenship, and who is an American, while there is some calm. It is inevitable that there will be another terrorist act by an immigrant who is a citizen. And the populist insurrection in the states against birthright citizenship today suggests that the deaths as a result of such an attack may spark a public tsunami of emotion that will engulf all reason.
We would all benefit if both sides in the divisive immigration debate dropped their intransigent rhetoric of racism, criminality and the like and understood that what they really are dealing with are two opposing concepts of citizenship.
One idea, generally shared by the humanitarian left, is universal and inclusive. It de-emphasizes the importance of the nation in a changing, globalized world. The other idea is more traditional and exclusive. It revolves around the importance of national identity and cohesion. Many countries are grappling with this issue, and the only effective solution is a balance of the two.
Globalization is here to stay, but its uncertainties reinforce the need for national identity not just for security but also for social welfare.
In the birthright debate, for example, the focus should be on whether citizenship can be taken from children already born. Opponents of birthright citizenship are fuzzy on this point, with good reason. Most Americans and the courts almost surely would never allow it, as a violation of basic fairness and ex post facto laws.
The reigning Supreme Court rule is that someone's citizenship can't be taken away unless the person has an "intent to relinquish" it. The court has said that this means that the act must be voluntary or that the citizen did something to clearly demonstrate intent. Federal law lists serving in a foreign military, voting in a foreign election or swearing allegiance in a foreign state as reasons for denationalizations, though in practice they have long since gone unused.
The Lieberman bill attempts to include a terrorist act against the United States as a clear sign of intent, but as Peter Schuck of Yale Law School notes in the current issue of Policy Review, knowing that even a terrorist specifically intended to give up his citizenship is a high bar to clear.
About the only success the government has had in stripping citizenship has been in the case of naturalized citizens who can be shown to have lied on their applications.
None of this suggests that citizenship can be taken away from the children of unauthorized immigrants or even tourists. You might think the anti-birthright lobby would want to concede this point and focus on the logic it has for politically changing the 14th Amendment so that citizenship is not automatic for children born in this country in the future.
Instead, the lobby senselessly argues that the amendment doesn't say what it clearly says or that its framers didn't mean what the amendment says, implying that the past citizenships are illegitimate. This wastes time and energy on an unproductive argument. And as Garrett Epps of the University of Baltimore conclusively shows in the current American University Law Review, the transcripts of the legislative debates show that Congress specifically intended to extend citizenship to the children of non-citizen immigrants such as Chinese and Gypsies, and not just to freed slaves.
The humanitarian left, meanwhile, is correct when it says that eliminating birthright citizenship runs the risk of creating a disenfranchised and festering underclass. But the left overlooks all the evidence that shows that the declining sense of national unity from weakened citizenship is contributing to a loss of public support for social welfare spending in Europe and the United States, issues also fundamental to a fair society.
These are issues that can be resolved, but only if all sides are honest about the consequences. Better that President Obama and congressional leaders try soon, before more time and energy is wasted and we forgo more productive discussion.