Birthright Citizenship, from Clarence Thomas to Israel

What happens when we read yesterday's Supreme Court opinion on birthright citizenship through the lens of Israel and Palestine?

As everyone in the country who’s not a fanatical Trumpist breaths a sigh of relief over yesterday’s Supreme Court affirmation of birthright citizenship, it seems like a useful moment to reflect on Israel.

The principle of birthright citizenship states that it matters not a whit who your parents are or where they’re from; you are a citizen of the United States merely by the fact that you were born on its soil. That’s it. Birthright citizenship is based on the principle of jus soli—Latin for “right of the soil.” The opposite of jus soli is jus sanguinis—”right of blood.” Clarence Thomas, Samuel Alito, and Neal Gorsuch, who dissented from the Supreme Court’s decision, were arguing against jus soli, and much of Thomas’s opposition to birthright citizenship stems from his belief that the 14th Amendment is dedicated not only to enslaved Africans in the United States but also to their descendants. Jus sanguinis.

People can argue over whether Palestinians living with the Israel of pre-1967 borders—borders that ceased to be relevant long ago—are equal citizens of Israel or not. But what cannot be denied is that Israel sees itself as the state of the Jewish people. Not the state of the people who happen to live within its borders, whatever those borders may be.

We know this because anyone living anywhere in the world who is Jewish, which is determined overwhelmingly by matrilineal descent, has the right to immigrate and become a citizen of Israel. Not so anyone who is Palestinian who lives in, say, Newark, who has a mother, say, living in Jerusalem. That person has no right to immigrate to Israel and become a citizen there. Even if they were born there.

On those grounds alone it’s easy to see that Palestinians living within Israel do not have the same rights as Jews living within Israel. In this instance, a Palestinian mother in Israel is permanently separated from her child while a Jewish mother would have the right of reunification with her child.

Beyond the individual rights of Palestinians versus Jews, we have the larger question of democracy. No one who is not a fanatical Trumpist thinks it would be a step toward democracy to overturn birthright citizenship. The reason being that it’s very clear jus sanguinis seeks to create a lower caste of beings (that’s why Justice Jackson was so insistent on using that language of caste in her concurring opinion yesterday), elevating the native born and their progeny while subjugating those whose parents were not born here. No one believes overturning birthright citizenship will eliminate all immigrants; nativists are perfectly happy to have a lower caste of servile beings who do the shit work and get no rights. The question is whether they receive citizenship. The same goes for Jews in Israel and those who affirm that it must remain a Jewish State.

It might seem outrageous to claim that when it comes to birthright, Israel stands on the far end of the Clarence Thomas spectrum. But the two—Israel and Thomas—are closer in spirit than you might think. Both speak on behalf of a historically victimized group—Jews in the case of Israel, Blacks in the case of Thomas—and both use that victim status of the past to create a new class of victims in the present.

By a perverse twist of language, Israel affirms the principle of birthright citizenship. The twist is that it is birth to a Jewish mother—jus sanguinis—that matters, and not birth on Israeli soil. And indeed, when Jewish teenagers from around the world are given free trips to Israel, where they get to see the glories of the Promised Land, the trips are called “Birthright.”