Let’s start with his bad-faith argument. Anton claims “the entire case for birthright citizenship is based on a deliberate misreading of the 14th Amendment.” How does he infer this? Anton attempts an originalist explanation, surveying the congressional debate on the amendment:
The amendment specifies two criteria for American citizenship: birth or naturalization (i.e., lawful immigration), and being subject to U.S. jurisdiction. We know what the framers of the amendment meant by the latter because they told us. Sen. Lyman Trumbull of Illinois, a principal figure in drafting the amendment, defined “subject to the jurisdiction” as “not owing allegiance to anybody else” — that is, to no other country or tribe. Sen. Jacob Howard of Michigan, a sponsor of the clause, further clarified that the amendment explicitly excludes from citizenship “persons born in the United States who are foreigners, aliens, [or] who belong to the families of ambassadors or foreign ministers.”Yet for decades, U.S. officials — led by immigration enthusiasts in and out of government — have acted as though “subject to the jurisdiction” simply means “subject to American law.”
It was in this section that the last shreds of Anton’s intellectual integrity evaporated into nothingness.
The most obvious problem is Anton’s needless insertion of the word “or” in the quotation from Howard, who actually said: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.” Anton wants the reader to believe that Howard is listing distinct categories of individuals. What Howard was actually doing was listing synonyms to describe the same category of individuals, namely the children of foreign officials.
Anton’s deliberate misreading of the debate surrounding the 14th Amendment ran into a buzz saw of countervailing expert opinion. Elizabeth Wydra, president of the Constitutional Accountability Center, responded with an op-ed of her own in The Post, noting the ways in which Anton elided key facts:
It was Trumbull who answered the racists of his own time who worried about “naturalizing the children of the Chinese and Gypsies born in this country.” Trumbull said the citizenship clause “undoubtedly” would do that, and that a child of such immigrants “is just as much a citizen as the child of a European.” In other remarks, Trumbull made it even clearer, saying, “Birth entitles a person to citizenship, that every freeborn person in this land, is, by virtue of being born here, a citizen of the United States.”
The pushback is not limited to liberals. James Ho, now a Trump-appointed federal circuit court judge, wrote a Federalist essay three years ago on this very topic, and came to the exact same conclusion as Wydra. He also noted parts of the debate over the 14th Amendment that flatly contradict Anton’s claims. In the debate on the amendment, Sen. Edgar Cowan (R-Pa.) objected to the wording of the citizenship clause, declaring that, “if [a state] were overrun by another and a different race, it would have the right to absolutely expel them.” In response, Ho writes:
Senator John Conness (R-Calif.) responded specifically to Cowan’s concerns about extending birthright citizenship to the children of Chinese immigrants:“The proposition before us … relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. … I am in favor of doing so. … We are entirely ready to accept the provision proposed in this constitutional amendment, that the children born here of Mongolian parents shall be declared by the Constitution of the United States to be entitled to civil rights and to equal protection before the law with others.”….No Senator took issue with the consensus interpretation adopted by Howard, Cowan, and Conness.
This seems incredibly straightforward: Anton is wrong on the facts. A plain language reading of the 14th Amendment makes it impossible to arrive at Anton’s desired conclusion.
I have not delved into Anton’s failure to understand social contract theory or his bizarre suggestion that Trump can simply issue an executive order ending birthright citizenship. There are only so many hours one can devote to someone being wrong on the Internet. Let us just say that those arguments are even more weak tea. One has to go back a long way to find an intellectual this subpar. So it is worth stepping back and asking why Anton is raising this issue in the first place. Is there a pressing public policy issue motivating his concern? Why does he label birthright citizenship “the most urgent constitutional challenge of our time”?
Damned if I know. Anton never really explains what the crisis is in his original op-ed. He claims that birthright citizenship is a “great magnet” for illegal immigration but provides almost zero evidence to support this fact, probably because illegal immigration has waned dramatically over the past decade.
In his follow-up to the op-ed, Anton acknowledges that only a minority of Americans want to end birthright citizenship, but suggests, “Were the nation to hold an honest debate, those numbers might rise (indeed, I’m confident they would).”
Actually, I am confident that they would not, and I have the data on my side. As I’ve noted before, Donald Trump has made almost all of his nationalist policy positions less popular with the public over time. This holds with particular force on his restrictionist immigration proposals, such as building the wall. The same is true on birthright citizenship. A September 2017 poll by the Constitutional Accountability Center showed Americans overwhelmingly favor birthright citizenship, 75 percent to 20 percent. An NBC/WSJ poll taken around the same time carries slightly weaker numbers but also highlights Trump’s negative effect on public attitudes. “Overall, 65 percent of Americans say the U.S. should continue to grant automatic citizenship, while 30 percent disagree. In September 2015, only a slim majority — 53 percent — supported the continuation of birthright citizenship, while 42 percent supported a change to the policy.” Trump has the anti-Midas touch on this policy question.
In a different Washington Post op-ed Anton wrote last month, he makes it clear that he opposes all immigration full stop. In that essay he lamented, “Why do we need more people? For the extra traffic congestion? More crowded classrooms? Longer emergency room and Transportation Security Administration lines?” With this kind of logic, I am genuinely perplexed that Anton is not also advocating for abortion and assisted suicide on demand. Distilled to its essence, that op-ed is an argument against procreation, not immigration.
Perhaps Anton is like Sartre and hell is other people. More specifically, hell is brown people. In his “Flight 93” essay, Anton complained without foundation about “the ceaseless importation of Third World foreigners with no tradition of, taste for, or experience in liberty means that the electorate grows more left, more Democratic, less Republican, less republican, and less traditionally American with every cycle.” The Huffington Post’s Jessica Schulberg reported that in a different 2016 essay, Anton wrote, “‘Diversity’ is not ‘our strength’; it’s a source of weakness, tension and disunion.” He proposed a complete Muslim ban, explaining that, “Islam is not a ‘religion of peace’; it’s a militant faith that exalts conversion by the sword and inspires thousands to acts of terror — and millions more to support and sympathize with terror.”
These statements sound pretty racist to me, an accusation that Anton does not categorically deny. Last year, New York’s Andrew Sullivan wrote: “When I asked Anton bluntly about whether he believes race matters to a national identity, he turned uncharacteristically silent: ‘I’m not going to say something that could be used to destroy my livelihood and career.’ ”
Anton’s creed is not just racist; it is patently un-American. In his follow-up to the op-ed, he argues that birthright citizenship is a peculiar feature among the countries of the world: “Only around 30 countries out of nearly 200 practice birthright citizenship. The highest accounting that I have seen says 33. There are 197 countries in the world (193 U.N. members, two observers, and two non-members). Thus 83% of the world’s nations do not allow birthright citizenship.”
To me, the fact that birthright citizenship is the exception is part of, you know, American exceptionalism. The Federalist’s David Marcus made a similar point in response to Anton’s original op-ed:
Non-European (read non-white) kids born in Europe do not feel the same connection to their country that a child of immigrants feels in America. In America, where people are judged on the content of their character, not the color of their skin, anyone can be a citizen. My son goes to school in Brooklyn with the children of immigrants who are just as American as he is, regardless of Anton’s terrified xenophobia. His proposal would throw the lives of my neighbors, fellow parishioners, and friends into complete havoc, and he offers no compelling reason it should happen.Anton’s shriveled and scared notion of what America is or should be rejects the entire basis and meaning of our nation. Birthright citizenship is the very foundation of America’s immeasurable power, not only as a nation but as an idea.
Let me suggest that when outlets ranging from the Huffington Post to the Federalist concur on a legal question, it’s not just “the left” that agrees on it, as Anton wishes to frame it. Indeed, that is simply further evidence that Anton uses words differently than their plain-language definition.
Trump continues to have the support of at least 35 percent of American voters. It is not unreasonable to want a fraction of op-eds to be written by those sympathetic to his worldview. Anton served in the Trump White House and can write grammatically correct sentences, so I get why op-ed editors might procure his services.
Anton’s essays, however, have been both shoddy and racist. The only thing he contributes to the public sphere is obfuscation. America’s marketplace of ideas can and should do better than this bigoted hack.
CORRECTION: This story originally attributed a quotation to the wrong person. It was Sen. Jacob Howard, not Sen. Lyman Trumbull, who listed children of foreign officials for whom birthright citizenship should not apply.