The GOP, the Fourteenth Amendment, and those anchor babies
Mitch McConnell has stirred up a hornet’s nest on the left (see, for example, the comments here) by suggesting that we should hold hearings on the question of whether every child born in the US, even if his/her parents have come here illegally, should be entitled to full US citizenship.
The left’s response has been the predictable hue and cry that the racist GOP wants to repeal the 14th Amendment. But the Fourteenth Amendment was not meant to explicitly grant citizenship to the children of illegal immigrants—its purpose was to make sure that former slaves were not blocked from receiving citizenship. The operative words are in the so-called citizenship clause, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”
The history of the clause also includes the following:
There are varying interpretations of the original intent of Congress, based on statements made during the congressional debate over the amendment. During the original debate over the amendment Senator Jacob M. Howard of Michigan””the author of the Citizenship Clause””described the clause as excluding Indians, who maintain their tribal ties, and “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.” He was supported by other senators, including Edgar Cowan, Reverdy Johnson, and Senate Judiciary Committee Chairman Lyman Trumbull…
The provisions in Section 1 have been interpreted to the effect that children born on United States soil, with very few exceptions, are U.S. citizens. This type of guarantee””legally termed jus soli, or “right of the territory””” does not exist in most of Europe, Asia or the Middle East, although it is part of English common law and is common in the Americas. The phrase “and subject to the jurisdiction thereof” indicates that there are some exceptions to the universal rule that birth on U.S. soil automatically grants citizenship.
The Fourteenth Amendment was passed in 1868. At the time, it could not have been meant to apply to illegal immigrants, for the simple reason that in 1868 there were few if any restraints on immigration, and therefore virtually all immigration was legal. Back then, the situation re immigration was exceedingly different from today’s. Unlike now, much of the country was still largely unsettled and immigrants were greatly desired to facilitate expansion, especially in the west.
Immigration to this country had not yet reached the enormous levels it achieved later in the 19th century and the early part of the twentieth. Most of the immigrants prior to that came from western Europe, and were considered to be part of the same cultural groups that had founded this country. The very un-PC thought that the US should strive to preserve that cultural mix as much as possible was commonplace then, and was also responsible for some of the laws that were passed later in the 19th century that put brakes and limits on legal immigration.
For example, just to name a few, one of the first was the 1882 Chinese Exclusion Act; then later on a series of quota systems based on national origins were enacted between 1917 and 1924; more quotas were established in 1952. These laws setting limits based on national origins remained firmly in place until the Immigration and Nationality Act of 1965, which abolished the national quotas and replaced them with a general quota instead.
That’s a very brief overview of a very complex system. The most important points in terms of the issues at hand are that, when the Fourteenth Amendment was passed, virtually all immigration was legal; and then afterward (and until quite recently) the bulk of immigration could be controlled and monitored much more easily than now because it occurred by ocean vessel, either from Europe or Asia. The authors of the Fourteenth Amendment clearly never envisioned the situation we are facing today, when the country reaches from sea to sea, the vast influx of immigrants are illegal and come across the Mexican border clandestinely, some are dealing in drugs and violence, the federal government has no interest in policing the situation, the citizens already here are outraged about it, and an unknown number of these illegal Mexican immigrants are alleged to be coming here while pregnant for the express purpose of taking advantage of the Citizenship Clause in the Fourteenth Amendment and having so-called “anchor babies.”
[NOTE: The history of immigration from Mexico to this country is a long and fascinating one, with a push-pull between the perceived need for laborers (mainly agricultural ones) and the need to control the influx of them—how many to allow in legally, how long they should be allowed to stay, and what to do with illegals. For example, many Mexican workers whose illegal presence here had been previously tolerated in times of plenty were deported during the Great Depression. The Bracero program, which later established rules for Mexican workers to come here temporarily and legally during WWII and a time of labor shortages in this country, was eliminated in the 60s. Then the influx of illegals began to accelerate (with a few reversals such as 1954’s Operation Wetback), ultimately reaching the huge numbers we have today.]
There is something bizarre about conferring citizenship on a baby whose parents are temporarily in the country and have no intention of remaining permanently or seeking citizenship for themselves. A friend of mine had two children while her husband was doing a postdoc here. I cannot see these kids as anything but Americans. They speak no German, never even attended a day of kindergarten here, and have no family here. This is similar to the question raised about McCain’s eligibilty for the presidency simply because he was born in a Panama hospital. It should be possible to refine citizenship criteria to
give more weight to the parent’s status and perhaps the length of legal residency of the child. If one parent is from another country, then the child should have temporary dual citizenship until perhaps age 21 or 25, at which point they should choose.
Birth-tourism is big business in Asian countries, where pregnant Asian women come to America, disguising their pregnancy, to give birth to an American citizen. There are agencies to help them evade questions.
The hospital in Tucson AZ advertises for wealthy Mexican women to enjoy a vacation at a local resort, enjoy the shopping and offer American citizenship to her child. American citizenship becomes an insurance policy for those who can afford to give it to their child. They don’t put it quite that bluntly, but birth tourism is common all along the border.
This wasn’t the intent of the amendment. Yet, what to do? A blood test for entering female tourists? Refusal of citizenship if the mother is either illegal or on only a temporary visa? It is a complicated problem.
Still, a bit of a slap in the face to all those liberals who are so sure there is nothing “exceptional” about America.
Let me know when there is a political party that actually does something to employers who knowingly hire illegal aliens.
I continue to be amazed at the overly gracious attitude toward such people who undermine their own country by engaging in such activity.
Criminal sanctions, hefty fines, and enforcement of both. As soon as that is done, this problem ends.
Until one of the 2 parties is willing to do that, this whole debate is only so much fluff.
Hey, at least the issue is now being discussed – that’s a step in the right direction as far as I am concerned.
Could anyone have even predicted this discussion taking place at this level even 5 years ago?
This kind of change is slow, but at least it’s happening.
Now, how do we speed it up?!?!?
Explain to me again why we do not have a guest worker program for agricultural labor like we do for hi techies? We need unskilled agricultural labor, the Mexicans are desperate for work and what should be a solution is a problem??
OK what am I missing, other than various groups seem to have an agenda that does not include common sense.
I really must be dumb.
Bob from Virginia,
We had a guest worker program for agricultural workers from 1942 to 1964. It was called the Bracero Program and was part of an agreement with Mexico. The program was ended as the result of union pressures.
I would like to see this 14th Amendment issue grow some legs, since it is simply a McConnell “run it up the flagpole and see if anyone salutes” test. It merits the most serious consideration. Its passage was a Constitutional blunder of unforeseen consequences, and I for one do not believe we should remain crucified on it forever.
Let me be the one who somewhat disagrees by saying that this must be approached with caution. Politics and popular sentiment should have no part of it. (they will, but I feel that they shouldn’t)
Yes, there certainly are many who take advantage of US citizenship laws that state anyone born here is automatically a citizen. And, yes, I would like to see that abuse somehow or other ended.
But, I believe that it is a “slippery slope” to deny children born here the birthright of US citizenship in that we could, like so many other countries around the world, end up with a permanent underclass of non-citizens.
Granting automatic citizenship to one born in the US is a part of American exceptionalism. In fact, when I lived overseas, trying to explain to so many non-US people that it really was that simple to be a US citizen was often met with skepticism. They so often could not believe that ones’ parents’ birthplace made no difference.
In the early 1900s Congress passed a law revoking the citizenship of women who married foreign nationals. So when my grandmother, who was born in the US to legal immigrants, married my grandfather in 1913 she lost her citizenship for 14 years.
Can you even *imagine* calling something “Operation Wetback” these days?
I don’t think it was the wording od the 14th itself that the blunder, but rather the interpretation and especially enforcement of it that was the blunder.
Suggestion: make citizenship dependent upon the mother’s immigration status. In the U.S. illegally? Then the child retains the mother’s citizenship. Legally? Then dual citizenship until the age of majority.
Neo is right, the 14th Amendment was not designed to deal with this problem. I do not like to alter the Constitution or its amendments for trifles, but this is a big enough issue that I would favor modifying the text to make citizenship requirements tougher.
I don’t agree that altering the Constitution is necessary for the following reasons:
I think giving the proper weight the words “subject to the jurisdiction thereof” should modify how that amendment is interpreted. It should not be seen as superfluous wording, but rather it had a specific meaning when the wrote the amendment.
That being the case, in arguments before the various branches of the federal court system it can be argued – based upon the words of the guys who wrote the amendment – that the citizenship status being conferred simply by virtue of being on US soil at the time of birth is an incorrect interpretation of the citizenship rights granted under the 14th Amendment.
Documenting just this “original intent” is the same approach taken successfully by gun rights advocates in the recent Heller vs DC case.
Based upon this approach – and a generous amount of court activity – I think a lot can be done to fix the citizenship question once and for all in a manner that doesn’t leave the US open for such an aggressive migration policy by our neighbors to the south.
BTW, having written what I did just previously, I do think that any such corrected interpretation of the citizenship status of that amendment would require some type of normalization period.
I say this as someone who is pretty hardcore on the matter, even having taken the position that illegal aliens with children should be deported anyway and the US born children of illegal aliens should either go home with the parents to another country or be placed with social services.
There is the reality of the situation we have to deal with, and it would require a realistic solution the majority would accept, and most Americans are too soft-hearted to break up families.
So, how to address the problem in a way most people would accept?
Basically, if you had already been granted citizenship status under the old rules, you would be given the option of keeping that citizenship or declaring yourself of another nationality.
If you declare yourself of another nationality – get your papers in order or get the hell out of the country.
For minors, allow them to remain in the US as citizens until they attain voting age, then give them a choice of which allegiance they are going to proclaim.
For everyone else, as of the date this rule was accepted it would be automatically implemented – no waiting for it to take effect for a damn year so as many as could drag themselves across the border could do so in the intervening time frame just to attain citizenship.
If we don’t value our citizenship enough to protect it and make it mean something, then how do we expect anyone else to value it?
I am leery of parsing this plain language too much – after all, that’s what the anti-gun dimwits try to do to the second amendment.
I say we interpret it literally: Any child born in the US or its possessions is a citizen. If the parents are not citizens, they have a choice: go back to where they came from with the child, or go back and leave the child, which will be put up for adoption.
Problem solved.
I refuse to entertain any objections based on varieties of “That would be cruel!” or other such nonsense. The current procedure, or lack thereof, is simply rewarding those who game the system. Why we should do that is not explained.
I agree with alanstorm.
The parents just made a choice. Now the parents can get their butts to the country they came from… and of course – they can choose to leave the baby with a foster family or take the baby home.
alanstorm,
I don’t think the argument I suggested is parsing the language – quite the contrary. I’m specifically suggesting using the concept of original intent to frame the debate.
We’re not talking about the meaning of the word “is” here, we’re talking about what the guys who wrote the amendment meant and what meaning the words they used can reasonably be defined as within the context of the amendment.
As neoneocon pointed out, these guys specifically stated the citizenship clause was not intended to address “persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”
I think it’s clear illegal aliens or their offspring would fall under that category.
Think about it this way – the amendment was to address persons born here. Yet the writer’s very words were excluding offspring who were simply born here who fell into particular categories.
It’s clear he put them into the same category.
If you were to go back in time and ask Sen. Howard if the children of illegal aliens were to be considered US citizens simply for being born here, he’d probably say “no”.
Additionally, the amazement expressed by other nationalities as to how easy it currently is to attain citizenship here just by virtue of birth to illegal aliens should tell us something about what the norm is throughout the world on this question.
I am leery of any suggestion to alter the Constitution — which was written in general terms to endure over time and apply to a broad range of circumstances — as a particular response to any specific issue. There’s far too much risk of unintended consequences, especially when the Constitution and the whole concept of American exceptionalism are already facing such severe threats from many directions.
Right now, under the pressure of the terrible frustration of the problem of illegal immigration, it’s easy to focus on the negative aspects of birthright citizenship, to the exclusion of the positive consequences. But the positives do exist, and they are important. I have a relative who was born here after her family fled the Communist purges of intellectuals in Hungary in the 1950s. Her birth under the protection of the Constitution helped her family secure their freedom and their lives. In return, this country benefited from the resources of intelligence, education, and drive that they brought with them from behind the Iron Curtain. That exchange is squarely in the middle of our best traditions and I am reluctant to undercut it.
We might want to remember that many of us debating this question probably acquired our own citizenship from some ancestor’s birth here. Yes, many of those ancestors were probably here legally, and yes, illegal immigration, birth tourism, and all the rest present problems that the drafters of the Fourteenth Amendment couldn’t have foreseen and that need to be solved. But there are other solutions that don’t risk sabotaging the Constitution — for instance, the guest worker program a couple of commenters mentioned would be a step in the right direction (and a thumb in the eye of the unions!) We should beware of eroding the roots of our freedom while trying to protect it. I say, leave the Constitution alone.
Actually, Scottie, either your way or mine will accomplish the same goal, would it not?
I concede, though, you have a point.
Last week in Spanish-language newspapers, I read a story of a 20-year-old Chinese woman who trekked from China to Mexico – illegally – with the intent purpose of crossing the border into TX to give birth to her child here.
She was close to crossing the Rio Grande from Reynosa to McAllen when she was caught by the Mexican police. Right by the river. She gave birth to her child… in Mexico. The “anchor baby” game backfired on her spectacularly!
I didn’t see any American news agency catch this story at all. Has anyone seen it anywhere?
alanstorm,
Agreed.
I’m just suggesting that while I personally would not disagree with simply booting them out wholesale regardless of sob stories – the majority of average middle class citizens are going to be averse to breaking up families, and you and I both know the media will be painting every one of them as some sort of *wise Latino* saint.
Because of this, the approach has to be measured carefully so as to attain useful results without arousing the sympathies of the population to those getting the boot.
Very late, but we have temporary worker programs for ag workers. Several, I believe, though H-2A is the only one I remember.