The sad inevitability of Justice Alito’s birthright citizenship dissent
-
Click here to listen to this article - Share via
See more from the L.A. Times in Google Search. Set us as preferred
In 1913, Antonino Alati left southern Italy to find a better life in a land where many people regarded him as little better than scum.
He joined millions of his fellow countrymen in the United States, where the press vilified Italians as poor, swarthy, violent Catholics who had too many babies, refused to assimilate and could never possibly be considered “white.”
Politicians were already working to shut the door on them. A congressional report released two years before Alati’s arrival cited southern Italians as evidence that “the new immigration as a class is far less intelligent than the old.” They came to the U.S., the report asserted, “with the intention of profiting, in a pecuniary way, by the superior advantages of the new world and then returning to the old country.”
Arellano: Birthright citizenship secured my family’s American dream. No wonder Trump hates it
I’m the beneficiary of birthright citizenship three times over.
Alati wouldn’t let bigotry win. He soon sent for his wife and children, including his infant son Salvatore. Alati turned to Alito, Salvatore became Samuel. A generation later, the family had a Supreme Court justice in Samuel A. Alito Jr. — the second Italian American, after Antonin Scalia, to sit on the highest court in the land.
During his 2005 confirmation hearings, Alito praised his father as an “extraordinary man who came to the United States as a young child and overcame many difficulties” to ensure a better life for him and his sister. By then, Italian Americans were established as an essential part of this country’s fabric, from music to politics to food.
It’s the most American of tales — which is why it’s so surprising, yet not, to read Alito’s blistering dissent in the Supreme Court’s 6-3 decision rejecting President Trump’s effort to end birthright citizenship.
If there’s one constant in this country besides death and taxes, it’s how quickly descendants of immigrants, and sometimes immigrants themselves, forget how loathed their ethnic group was and how they proved the haters wrong. Too many become uncharitable to the policies that helped them and the immigrants who followed.
But Alito’s stance against birthright citizenship goes beyond just forgetting his roots. His 39-page opinion describes the supposed impact of undocumented migrants on the U.S., using words — “overran,” “soared,” “exploded,” “massive,” “a stream,” “huge” — that read like the same invective used against Italians in his grandfather and father’s time.
The justice channels anti-Italian conspiracies of the past by casting doubt on the national allegiances of the U.S.-born children of Mexican, Guatemalan and Salvadoran immigrants — the same patriotism test that Italian Americans faced generations ago when xenophobes questioned their Catholicism. Alito claims without evidence that millions of agricultural workers were able to apply for American citizenship after President Reagan’s 1986 amnesty “at least in part because of fraud” — a charge also leveled against Italians who sought to naturalize back in the day.
And so it goes, each passage a jumbled argument dressed up in judicial interpretations largely rejected by his fellow Catholic Supreme Court justices John Roberts, Amy Coney Barrett and Brett Kavanaugh. Coney Barrett signed on to the majority opinion that Roberts wrote, and Kavanaugh concurred.
I know how quickly families forget their own immigrant histories. Yet I look at people like Alito and wonder how they ended up thinking the way they do, because I could never imagine doing the same.
My maternal grandmother was born in Arizona to parents who fled their home country during the Mexican Revolution, becoming an American citizen by birthright. My father, who crossed the border in the trunk of a Chevy, legalized his status in an era when it was far easier to do so.
Like Alito’s paisanes, my Mexican family was also demonized for supposedly being insufficiently American and posing a threat to national unity. They also sacrificed their own dreams so their children and grandchildren could achieve theirs.
And just like Alito, some members of my family have forgotten our history and support Trump or favor some of his immigration policies, dismissing new arrivals as criminals or lazy. That’s why I will always side with undocumented people and welcome anyone who gives birth in this country with the hope that their newborn finds a better life.
It seems from his dissent that Alito somewhat agrees with me. He posits that millions of Americans who were born in this country to parents without papers “have a strong moral claim to be able to remain in the land where they grew up.” Congress “can and should address their situation,” he writes.
The justice blasts birth tourism, where women from China and other countries travel to the U.S. to have a baby, then return home, benefiting from our generosity and offering nothing in return.
Editor’s note: This article published in The Times on Jan. 3, 2013.
I agree that’s a mockery of what being an American should be and ruins it for people who want to contribute to building a better nation. But Alito throws out the baby with the bathwater by failing to recognize that Trump’s attempt to erase birthright citizenship via executive order is presidential overreach based on bigotry, not rule of law. He’d rather cut up the Constitution to spite something he doesn’t like. Thank God his side lost, yet it’s sad that Trump’s pathetic attempt to define who can be an American went as far as it did.
Alito concludes by stating that the court’s decision to uphold the 14th Amendment is “a mistake that will seriously affect the country’s future.”
What new immigrants might inflict on this country is the perpetual worry of immigration restrictionists — and yet history keeps proving them wrong. Alito’s family did; so did mine. Only in these United States can the progeny of people once portrayed as parasites and invaders side with those making the same argument about the latest batch of newcomers.
History will see Alito’s vote for what it is: a forsaking of the promise his family once fulfilled, to support the people who never wanted them here in the first place.
Insights
L.A. Times Insights delivers AI-generated analysis on Voices content to offer all points of view. Insights does not appear on any news articles.
Viewpoint
Perspectives
The following AI-generated content is powered by Perplexity. The Los Angeles Times editorial staff does not create or edit the content.
Ideas expressed in the piece
The article links Justice Samuel Alito’s Italian immigrant family story to the present debate, arguing that descendants of once‑despised immigrants often forget how their communities were vilified and now embrace policies that target newer arrivals in similar ways.
It contends that Alito’s dissent in Trump v. Barbara deploys alarmist language about undocumented migrants—describing them as having “overrun” the country and warning of “exploded” numbers—in a way that echoes the xenophobic rhetoric once used against Italians and other immigrant groups.
The piece argues that Alito’s legal reasoning against birthright citizenship resurrects long‑standing suspicions about the loyalty of immigrant communities, by casting doubt on the national allegiances of U.S.-born children of Mexican and Central American parents, much as earlier generations questioned Italian Americans’ patriotism and Catholicism.
It criticizes Alito for claiming, without clear evidence, that many immigrants benefited from President Reagan’s 1986 amnesty “at least in part because of fraud,” portraying this as part of a broader pattern in which immigrants are unjustly accused of cheating the system rather than contributing to it.
In contrast, the article praises the Supreme Court’s 6-3 decision striking down President Trump’s executive order and reaffirming that children born in the United States to parents who are unlawfully or temporarily present are citizens at birth under the 14th Amendment’s Citizenship Clause, viewing the ruling as a defense of constitutional text and long‑standing precedent.[4][1][2][7][6]
The column underscores that Chief Justice John Roberts, joined by Justices Amy Coney Barrett and Brett Kavanaugh among others, embraced this broad understanding of “subject to the jurisdiction” of the United States, while Alito broke with his fellow conservative Catholic justices by insisting the majority had made a “serious mistake.”[4][2][9][12]
The piece highlights Alito’s own acknowledgment that millions of U.S.-born children of undocumented parents have a “strong moral claim” to remain in the country, but faults the justice for refusing to recognize their automatic citizenship despite their deep ties to the United States and lack of culpability for their parents’ actions.[1][2][9][15]
Drawing on the columnist’s background as the child and grandchild of Mexican immigrants—some of whom benefited from birthright citizenship and from an earlier, more forgiving legalization process—the article uses personal history to argue for unwavering support for undocumented people and for parents who give birth in the United States hoping their children can build better lives.[3][5][10][13]
The author agrees with Alito that commercialized “birth tourism” abuses the spirit of American citizenship, especially when wealthy foreign nationals seek U.S. passports for their children while offering little connection to the country; yet the article insists this limited problem should not be used to justify dismantling birthright citizenship for millions of long‑term immigrant families.[2][15]
It portrays Trump’s executive order as an act of presidential overreach rooted in anti‑immigrant animus rather than serious constitutional interpretation, emphasizing that legal scholars and historical records have long understood the 14th Amendment to guarantee citizenship to nearly everyone born on U.S. soil, with only narrow exceptions such as children of foreign diplomats.[4][6][14][17]
The piece ultimately characterizes Alito’s vote as a betrayal of the promise embodied in his own family’s journey, arguing that by siding with restrictionists who seek to narrow who can be an American, the justice has aligned himself with forces that once sought to exclude families like his—and the author’s—from full belonging in the United States.
Different views on the topic
In his dissent, Alito argues that the majority’s reading of the Citizenship Clause is wrong, asserting that the 14th Amendment has never guaranteed automatic citizenship to children of parents who are unlawfully or only temporarily present in the United States and warning that the decision now “confers citizenship on virtually anyone” born on U.S. soil.[1][2][4][9][15]
Alito contends that the phrase “subject to the jurisdiction thereof” requires more than mere physical presence; he suggests it should be limited to children whose parents owe full, undivided allegiance to the United States, and that individuals present without authorization or on temporary visas remain principally subject to a foreign sovereign.[11][14][17]
His dissent, as described in coverage of the ruling, warns of “grotesque results,” including encouragement of “birth tourism,” where foreign nationals travel to the United States specifically to give birth and then return home, thereby securing citizenship for their child without genuine ties to the country.[2][15]
Supporters of Trump’s executive order have argued that the 14th Amendment was not intended to extend birthright citizenship universally to everyone born in the United States, but rather to correct the specific injustice faced by formerly enslaved people and their descendants; they maintain that the order sought to preserve the “meaning and value” of citizenship by aligning modern practice with this narrower understanding.[6][11][14]
Conservative legal commentators, including scholars associated with organizations such as the Heritage Foundation and some originalist academics, claim that the prevailing interpretation of birthright citizenship rests on a “fundamental misunderstanding” of the 14th Amendment and that Congress could legislate to deny automatic citizenship to children of undocumented immigrants without necessarily amending the Constitution.[11][8][17]
These critics often point to historical drafts of citizenship provisions and debates around the Civil Rights Act of 1866 and the 14th Amendment, arguing that lawmakers distinguished between persons “not subject to any foreign power” and those whose parents retained allegiance elsewhere, and therefore did not intend to include the children of unauthorized migrants within birthright citizenship.[8][14][17]
Some policy advocates emphasize concerns about illegal immigration, strain on public services, and perceived unfairness to those who navigate lengthy legal immigration processes, and thus favor legislation or constitutional change to restrict birthright citizenship to children of citizens and lawful permanent residents, or to require that at least one parent have a durable legal status.[11][16]
While many constitutional scholars reject these restrictive proposals, a number acknowledge that, until Trump v. Barbara, the Supreme Court had not definitively confronted the modern question of citizenship for children of undocumented parents, and they suggest that debates over the scope of “subject to the jurisdiction,” as well as over the limits of executive and congressional power in this area, are likely to continue in academic and political arenas.[6][14][9][17]
More From the Los Angeles Times
Podcasts
William Mulholland was the water boss who made L.A. possible. His reputation gave him unchecked authority as a dam builder. In 1928, that led to one of America’s deadliest disasters--and the question of whether it was a crime.
It started as a ploy to scare Texas out of redrawing its congressional map and ended with California voters approving a new map of their own, one that could hat could help alter the balance of power in Washington.
On this week’s episode of Boiling Point, Miranda Green speaks with Los Angeles Times climate reporter Hayley Smith about how AI bots are meddling in California’s clean energy policymaking.
