One of the key points of Donald Trump’s new administration program is its commitment to abolish birthright citizenship (jus soli) on his first day as president, as he has declared repeatedly. This would involve using the executive order tool. It didn’t quite happen that way, but it came very close. The new occupant of the White House has signed an order directing federal agencies to stop accepting citizenship applications within thirty days from the children of people entering the country illegally. The text suggests an attempt to get around current laws, as it simply ignores the applications without formally abolishing the right itself.
However, it is unlikely to be so straightforward, as the American Civil Liberties Union (ACLU) has already lodged a lawsuit in federal courts. To understand how citizenship works in the United States, we need to go back in time to the origins of the Republic, during the first presidential administration under George Washington. At that time, the 1790 Naturalization Act established that citizenship could be granted to all “free white persons of good character.” This definition automatically excluded Native Americans and people of non-European origin.
These strict rules loosened very gradually: in 1831, with the Treaty of Dancing Rabbit Creek, citizenship was extended to members of the Choctaw tribe. All the other Native Americans only gained it with the Indian Citizenship Act of 1924. For African Americans, the situation was different. In 1857, the Dred Scott v. Sanford ruling denied the possibility of African Americans ever becoming citizens. This verdict was written by Justice Roger Taney, a slaveholder who, according to historian Paul Finkelman, firmly believed in the “peculiar institution” even before making what has been described as “the worst decision” in the history of the U.S. Supreme Court. The outrage sparked by the decision was one of the factors that inflamed public opinion in the North, where many began to believe in the existence of a “slave power” secretly controlling the federal government. This was one of the issues that led to the Civil War.
After the war, the Fourteenth Amendment to the U.S. Constitution was adopted in 1868, granting citizenship to all males born on American soil. Women had to wait until 1907 to fully enjoy this right. The end of institutional racism? Not quite. As early as 1870, an ordinary law excluded new citizens of Chinese origin. In 1898, the Supreme Court ruling in United States v. Wong Kim Ark recognized citizenship for the child of two Chinese citizens with legal residency.
With the 1952 law on immigration, racial and gender distinctions in citizenship were officially abolished. However, it wasn’t until 1965, with the Immigration and Nationality Act signed by President Lyndon Johnson, that the quota system favoring white and Northern European immigration, in place since the 1920s, was dismantled. Until then, 85 percent of new Americans were Caucasian, 11 percent were Black, and just 4 percent were of Latin American descent. This marked the beginning of a new era in American immigration, with the country starting to welcome significant numbers of political refugees from all over the world. During the Cold War, the U.S. portrayed itself as “the last hope on Earth” for those suffering political persecution (at least by regimes allied with the Soviet Union). Although a maximum quota of 120,000 new entrants from the Americas was established, the nation began to diversify, welcoming an increasing number of citizens of Asian and African descent. Despite these advances, the legal fate of children born to undocumented migrants remains unclear. The 1898 precedent has so far been interpreted as applying to them as well, based on legal practice. However, the Supreme Court has never issued a definitive ruling on the matter, and it could soon address the issue, especially if Trump were to issue an emergency decree on the matter.
This issue has caused policy divisions within the American Catholic community. Conservative Catholics view the measure favorably, while more progressive ones oppose it. The U.S. Conference of Catholic Bishops has made its stance quite clear, warning lawmakers about the potential creation of an underclass of “stateless” children. According to a statement by spokesperson Chieko Noguchi, “We need immigration reform that addresses a flawed system while promoting human dignity and the common good.”
What needs to be done, then? To navigate this political-religious ecosystem, Reset spoke with Professor Massimo Faggioli, a theologian and professor at Villanova University. He noted that even for the bishops, this issue is secondary to abortion, which is deemed “preeminent” in several official documents. According to Faggioli, author of God and Trump, published by Morcelliana, which explores the relationship between the former president and Catholics, Trump gained favor with the bishops for “keeping his promise to change federal abortion law through the Supreme Court.” In theory, Faggioli explains, “there should be substantial unity on the matter, as the American Catholic Church was essentially built by migrant communities starting in the late 19th century.”
However, in practice, there are divisions. This is evident in comments made to the National Catholic Register by Ken Cuccinelli, a conservative Catholic, former Virginia Attorney General, and former head of federal immigration services during Trump’s first administration. Cuccinelli stated that America is already sufficiently generous in doing its part, and that those who break the law by entering the country illegally must face up to the consequences. In his view, such individuals are failing to uphold their end of the “social contract,” which includes respecting the laws of the host country. Cuccinelli also expressed concern about migrants using their children to “anchor” themselves in the country, a fear shared by many conservative Catholics, including some Latinos. According to Faggioli, when they voted many of these Latinos “betrayed” their compatriots who seek entry into the U.S.
This line of thought is far removed from the ideas of Pope Francis’s Church today. Faggioli sees it as leading to a “liquid schism.” According to the theologian, “this situation, where progressive and conservative Catholics ‘excommunicate’ one another, will continue and intensify, with increasing consequences for the lives of the faithful. Families will need to choose carefully which schools to enroll their children in and which parishes to attend.”
Kristin Heyer, a professor of theological ethics at Boston College, takes a position diametrically opposed to Cuccinelli’s. She argues that such a policy, beyond being “morally dubious,” would not stop illegal immigration. Instead, it would serve as a way to scapegoat certain groups while fueling populist and nativist rhetoric. This perspective is closer to Catholic teachings. However, it was a prominent conservative intellectual loyal to the Roman Catholic Church, journalist and writer Garry Wills, who coined the phrase “Mater yes, Magistra no” in an article for the National Review, rejecting what he saw as excessive openness in the Mater et Magistra encyclical written by Pope John XXIII.
According to Faggioli, this represents an extraordinary reversal for the conservative Catholic world, which once accused progressives of adhering to “Cafeteria Catholicism,” that is, a selective faith that picks values from a preferential menu. “Now it is the conservatives who have been ‘evangelized’ and have adopted the values of white evangelical churches on issues like immigration, abortion, and millenarian rhetoric.” On immigration, for example, these congregations have radicalized over recent decades, supporting total closure and opposing any open outlook on the issue. Thus, this “liquid schism” unfolds especially around immigration, where many faithful now prefer Donald Trump to Pope Francis.
Cover photo: The Capitol building is seen through the American flags in Washington DC on October 20, 2022. (Photo by Jakub Porzycki / NurPhoto / NurPhoto via AFP)
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