Anchors Away

The "anchor baby" controversy shouldn't even be an argument.

The United States currently follows a practice known as "birthright citizenship," which means, if you are born here then you are a citizen.  This applies to anyone born in the United States or its possessions - Guam, Puerto Rico, the US Virgin Islands, and so on.

This doesn't mean that you cannot be born overseas and still be born a US citizen.  US embassies regularly issue a "Certificate of Birth Abroad" for babies who are born to American parents.  But in that case, the parents have to prove their own US citizenship, and their parentage of the baby.  No such requirement exists on American soil - if you are born here, you are an American citizen, no further proof necessary.

As you might expect, word of this practice has got round, and a significant number of illegals crossing our border, are swimming for two.  In some hospitals near the Mexican border, 70% of babies are born to illegal immigrants.  The hospitals don't even bother to look into the status of the mothers, because legally it does not matter - the babies themselves are as American as Abraham Lincoln.

These are known as "anchor babies," because they provide a weighty anchor keeping their illegal alien parents in this country.  While being the parent of an American kid does not automatically provide legal status, the INS is naturally reluctant to deporting the illegal parents of US citizens.  Tearing screaming kids apart from their weeping parents makes for very bad television.

Contrary to popular belief of Americans, promulgated by the media, "birthright citizenship" is neither standard practice worldwide, nor even standard practice historically in this country.

Such well-regarded liberal democracies as England, Japan, Italy, Belgium, and Norway require that at least one parent hold citizenship of that country, before the child can receive it.

Sweden requires the mother to be a Swedish national; otherwise, the child receives the mother's citizenship, whatever that may be.

In France, children of foreign parents must apply for French citizenship and be approved, much like any other potential immigrant.

Some Western countries, such as Germany, have great numbers of multi-generational foreigners, who were born in Germany and have spent their entire lives there, but do not hold German citizenship - because their parents were not citizens, nor have they gone through the process to become citizens.

Understand, these are not rogue regimes; these are upstanding, democratic members of the community of nations, who many here would like the United States to become more like.

It is well recognized, and completely uncontroversial in international law, that each country has the right to restrict citizenship to people born to its own citizens.  America is more free with its citizenship because it chooses to be, not because it is required to by treaty, or even because it is customary.  And no other nation with as enormous a problem of illegal immigration, offers birthright citizenship.  Coincidence?

America is unique in many ways, and that certainly doesn't make those uniquenesses bad.  We are a nation of immigrants, and always have been. We are all descended from immigrants.  Heck, if anthropologists are right and humanity originated in Africa, every last one of us is descended from an immigrant.  But that's not at issue here - the question at hand is, what about illegal immigrants?  Do they, and their descendants, have some sort of automatic right to citizenship?

To answer this question, let's go straight to the source:  the U.S. Constitution.  Citizenship rights are defined in Section 1 of the 14th Amendment, as follows:

Section 1. 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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

This amendment, ratified on July 9, 1868, was the direct result of the aftermath of the Civil War.  Every American knows the story of slavery - black slaves, and their descendants, were not considered to be citizens.  They weren't even considered to be "persons."  Even freedmen - black people who were not born slaves, or who had purchased their own freedom in some way, were far from equals. In the infamous Dred Scott decision, Chief Justice Roger B. Taney wrote that blacks "had no rights which the white man was bound to respect."

With the successful conclusion of the Civil War, and as a consequence of Lincoln's Emancipation Proclamation, Congress quite properly decided to amend the Constitution so as to make it perfectly clear that the color of one's skin could never be used to determine citizenship or lack thereof.

But this is not the same thing as saying that citizenship was cheap, and available to anyone at all.  To determine the original intent of the 14th Amendment, we can look at the Congressional Globe, which recorded the debate in Congress, as the Congressional Record does today.

Here we find an interesting position.  Senator Jacob Merritt Howard of Michigan, introducing the amendment, 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.

Notice the "of course" - he regarded it as self-evident that citizenship was not to be automatically extended to "persons born in the United States who are foreigners or aliens.

In 1868, illegal immigration was not the problem it is today.  Instead, there was a significant question as to the status of Indian tribes.  In those days, the tribes were considered to be separate nations (the "Sioux Nation"; the "Cherokee Nation"; and so on), and treaties were signed with them by the United States.  Now, just as with treaties between two ordinary countries, the Indian treaties were often disregarded, and war resulted; this was not an example of American honor, sad to say.  But the principle of Indian tribes being separate nations was not in doubt.

And on the subject of the application of the 14th Amendment to the children of Indians, born within the territory of the United States, Senator Howard had this to say:

Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States. They are regarded, and always have been in our legislation and jurisprudence, as being quasi-foreign nations.

So here we have a clear example of an entire class of persons, born within the boundaries of the United States, and clearly recognized as independent "persons" (unlike slaves); and yet, who had no right to citizenship, not because of any inherent inferiority, but simply by virtue of the fact that they were subject to another jurisdiction - that of their chief or tribe.

Senator Edgar Cowan of Pennsylvania clarified this point.

[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word.

Consider what he is saying here.  He is not arguing that foreigners have no rights, or are non-persons in any way.  Foreigners have the full right to protection of the laws - due process, and so on.  There is certainly no abrogation of the human rights of a foreigner in the United States; we cannot shoot them on the spot, for instance.  But a foreigner is not a citizen - he does not hold the civil rights that come with citizenship.  He went on to say, "It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power" - in other words, to be a citizen.  In conclusion, in case any might say that Senator Cowan was a racist or xenophobe:

I wish to be understood that I consider those people to have rights just the same as we have, but not rights in connection with our Government. If I desire the exercise of my rights, I ought to go to my own people, people of the same beliefs and traditions, and not thrust myself in upon a society of other men entirely different in all those respects from myself. I would not claim that right.

In other words - if you or I go to China, that does not make us Chinese.  If we go to Mexico, we cannot demand the right to vote there.  And similarly, if they come to America, that does not automatically make people Americans.

Senator Lyman Trumbull of Illinois, the Chairman of the Judiciary Committee at the time -- and surely if anyone ought to know what the 14th Amendment was supposed to mean, it would be he -- stated:

It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens.

Is not an illegal alien -- key word illegal -- someone who, by definition, is not subject to our laws?  By his very presence here, with every step he takes, an illegal immigrant declares herself to be not subject to our laws, but rather, subject to the power of his native land.  And therefore, by the intention of the Constitution, a child would hold the full citizenship of its parents - which is to say, none in the United States, but full rights in whatever country the parents came from.

That is precisely how the Constitution was interpreted for many years.

In 1884, the Supreme Court considered the case of John Elk, an American Indian.  Mr. Elk had been born in the territory of the United States, quite legally, to parents who were members of an Indian tribe.  They had every right to reside in the United States, but were not themselves citizens - they were under the jurisdiction of their tribe, as was Elk.  As a grown man, Elk renounced his tribe, and attempted to vote in American elections - but, he did not go through any process of acquiring citizenship.  His argument was that, since he had been born on American soil, and since he had renounced his allegiance to any foreign power (his tribe), that made him an American citizen.  The Supreme Court thought otherwise:

The evident meaning of [the jurisdiction phrase] is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. Indians born within the territorial limits of the United States, although in a geographical sense born in the United States, are no more 'born in the United States and subject to the jurisdiction thereof' within the meaning of the [Citizenship Clause], than the children of subjects of any foreign government born within the domain of that government.

In 1924, Congress granted full US citizenship to all American Indians living within the United States, so this is no longer an issue for them.  As American citizens, their children would also naturally be citizens, and so on down through the years.  The principle, and the clause, remain: If your parents were not citizens, and you have not been naturalized, then you are not a citizen.

So then, why do we consider "anchor babies" to be citizens?

Birthright citizenship is by no means the standard practice internationally, nor even the usual custom of free democracies.  It has not historically been American practice either; nor was it ever the intention of the 14th Amendment to make it such.

We permit this travesty of law, as an act of political cowardice, and our government does so in wanton disregard of the will of the people.  No new amendment to the Constitution is required; at most, an act of Congress, clarifying the laws of citizenship in accordance with the 14th Amendment.

It is a longstanding principle under law that a criminal ought not be allowed to benefit from his crime.  If you murder your rich husband, you cannot inherit his millions.  If you commit a felony, and write a tell-all book while in prison, most states will confiscate your earning and either keep them, or grant them to the family of your victim.

Is American citizenship of such little concern, that we don't mind it being awarded as the result of a crime?

Petrarch is a contributing editor for Scragged.  Read other articles by Petrarch or other articles on Immigration.
Reader Comments

the great thing about america is that the laws of other countries shouldn't apply to us. if that were true, marijuana would be legal, women would be forbidden to drive, and we would have universal health care! :)

let's be honest, the real reason there is any kind of debate on immigration is to play on middle america's racist fears. to put it bluntly, white people are afraid of those that aren't, and now the fear is, that they will lose majority makes me ashamed to be white, really.

i am in favor of amnesty. for us to deny citizenship to anyone goes against the whole idea of america, where hard work and ingenuity are valued far more than whose family you were born into.

you also write that a criminal ought not be able to benefit from his/her crime. i say that when a law is as flawed and downright evil as this. then these people are not criminals at all.

September 11, 2007 2:04 PM

"let's be honest, the real reason there is any kind of debate on immigration is to play on middle america's racist fears"

Surely, you jest.  Conservatives do not want to close the borders entirely, only make sure those that *do* immigrate, do so orderly in a proper, legal fashion.

September 11, 2007 2:45 PM
I think our laws for naturalization require complete change of nheart--renouncing all loyalty to country of origen--and swearing allegiance to this ciuntry. I have never seen any Cambodians who escaped sure death at the hands of a murderous regime who did not do this willingly. This is what should be reqired of any immiugrant. This matter of changing our lanuage and allowing them to ruin our heritage is a shame. Patrick Henry would turn over in his grace.
February 4, 2009 6:05 PM

In his work, "Blunders of the Supreme Court of the United States, Part 3" (online), the author, Dan Goodman, shows with cases from the Supreme Court that the political jurisdiction of the United States does not extend to the several States, but only to the District of Columbia, its territories and possessions, and federal enclaves with the several States of the Union and that one born in a State of the Union is subject to the political jurisdiction of that State and not that of the United States.

So birthright citizenship does not apply to the several States of the Union!

September 13, 2011 6:51 AM
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