'Anchor Babies' Issue: Could Conservatives Change 14th Amendment?

By REYNOLDS HOLDING Reynolds Holding –
Sat Feb 5, 9:15 am ET

It is among the clearest passages in the U.S. Constitution, a single sentence that tells us who shall be a citizen, defines the U.S. as different from most other nations and puts to legal rest a shameful period in American history. With all that going for it, you would think that the first clause of the 14th Amendment had earned the respect of legislators on both the left and, especially, the right - the same people who extol the plain words of the Constitution and the exceptional nature of American law.

But as Representative Steve King of Iowa and conservative legislators from five states recently made clear, you would be wrong. (See TIME's photo-essay "The Border Fence Rises in the Southwest." http://www.time.com/time/photogallery/0 ... 06,00.html )

In January, King introduced a bill in the House of Representatives to exclude the U.S.-born children of undocumented immigrants from the 14th Amendment's guarantee of automatic citizenship. At the same time, state legislators promised to push their own bills to deny those children the benefits of U.S. citizenship. The measures are squarely aimed at those whom many on the right derisively dub "anchor babies": kids who are U.S. citizens from birth simply because their mothers sneaked across the border to have them - or, as one Senator delicately put it, to "drop and leave."

Their alleged motives aside, plenty of undocumented women give birth in the U.S.: 3.8 million have at least one child who is an American citizen, according to the Pew Hispanic Center, and in 2008, 73% of kids of illegal immigrants were U.S.-born. As citizens, they are entitled to costly benefits, and that's one reason most countries don't allow birthright citizenship. So no matter how you feel about the issue, there's nothing necessarily nutty about denying automatic citizenship to the children of people who shouldn't be in the country in the first place.

What's nutty is that King and his allies are trying to do that through legislation rather than the far harder method of a constitutional amendment. That approach offends the plain meaning of the 14th Amendment, suggests that the U.S. should simply follow other countries' immigration laws and relies on an argument once used to deny citizenship to African Americans. (See "Arizona's Next Immigration Target: Children of Illegals.")

The 14th Amendment says, "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." Opponents of illegal immigration say kids of undocumented parents aren't covered because they aren't "subject to the jurisdiction" of the U.S.: they may owe allegiance to their parents' home country and can't gain the privileges of being an American without U.S. permission. No permission, no citizenship. The problem, then, is not with the 14th Amendment but with the courts' misinterpretation of it. A simple law can fix that. (Comment on this story.)

It's a clever argument, but one that history does not support.

America's birthright citizenship derives from the 1608 English case of Robert Calvin, who was born in Scotland just after the Scottish King, James VI, also became the King of England. Calvin wanted to own land in England but couldn't unless he was a subject of England as well as Scotland. The court ruled that he was, because he and Englishmen owed allegiance to the same King. The outcome had a lot to do with James' need to consolidate his kingdom, but the rule became that anyone born on land governed by the King was a British subject - except for children of foreign invaders or diplomats, who were outside British jurisdiction.

(See "Blocking the Border Fence in Texas.")


English and then American courts consistently followed that rule for centuries. But Britain began saying in 1981 that people born there could not automatically become citizens unless at least one parent was already a citizen or permanent resident, and the U.S. Supreme Court held in 1857 that slaves could not be citizens even when born here. The infamous Dred Scott decision rested in part on the idea that the framers of the Constitution had chosen not to make slaves citizens. This idea of choice was clearly contrary to the rule of birthright citizenship, and Congress essentially rejected it through the Civil Rights Act of 1866 and, more definitively, through the adoption of the 14th Amendment in 1868.

The Supreme Court resolved any remaining doubts about birthright citizenship - and the 14th Amendment - in the 1898 case of Wong Kim Ark, a man born in the U.S. to Chinese parents. Wong was in his 20s when he left his San Francisco home in 1894 to visit China. He tried to return the next year but was denied re-entry to the U.S. because he was "not, under the laws of the state of California and of the United States, a citizen thereof," his mother and father "being Chinese persons, and subjects of the Emperor of China," customs officials said. But the Supreme Court ruled that Wong had in fact acquired American citizenship at birth, and that citizenship had "not been lost or taken away by anything happening since his birth" - namely, the Chinese Exclusion Act of 1882, which had strongly limited Chinese immigration into the U.S.

The court went on at length about Calvin's case and British common law and confirmed that the 14th Amendment meant what it said - and what supporters and opponents stated in congressional debates that they believed it said. While residing in the United States, pretty much everyone is "subject to the jurisdiction thereof," because they must obey U.S. law. Under the 14th Amendment, the only exceptions are the children of diplomats (who have diplomatic immunity) and invaders and people born on foreign ships or to members of Indian tribes. (Tribes are sovereign nations, and Congress excluded their members' children in a compromise designed to preserve tribal independence.) The justices concluded that the 14th Amendment "affirms the ancient and fundamental rule of citizenship by birth within the territory ... including all children here born of resident aliens."

The court didn't mention undocumented immigrants, but 84 years later, it held in Plyler v. Doe that the amendment's citizenship clause applied to their American-born children as well as to anyone else "subject to the laws of a state." In 1985 the court again said kids born in the U.S. to undocumented parents were American citizens.

Despite the weight of history and legal precedent, opponents of birthright citizenship seem hell-bent on getting the courts to reconsider the 14th Amendment and put the U.S. in step with most of the world. Only about 30 nations grant automatic citizenship to the children of undocumented parents, according to the Center for Immigration Studies, and no European country does. Most nations assign babies the citizenship of their parents or require illegal immigrants to be longtime residents before their kids can be born citizens. Others simply require government consent - a system with uncomfortable echoes of the Dred Scott decision.

There are lots of options - some that might even curb illegal immigration. But if that's the goal, legislators can do better than pursue policies that prompt costly litigation, rehash debates over slavery and, ultimately, slight the Constitution they claim to revere.

http://news.yahoo.com/s/time/20110205/u ... 9204561700