The Anchor Baby Myth

[GURPS]

The Anchor Baby Myth

The Constitution v Birthright Citizenship​

“Born in other countries, yet believing you could be happy in this, our laws acknowledge, as they should do, your right to join us in society, conforming, as I doubt not you will do, to our established rules.” —Thomas Jefferson (1801)​

Regardless of your opinion of Trump’s populist antics, making immigration a centerpiece of his presidential rhetoric has forced both Republicans and Democrats to clarify their positions on this issue — and not a minute too soon!

The current debate centers on whether or not to “repeal” birthright citizenship. But framing this argument with the word “repeal,” whether by legislation or constitutional amendment, implies that there is something in our Constitution or subsequent legislation that already affirms a right to birthright citizenship. No such provision exists, except as wholly misinterpreted by courts and propagated by politicians pandering for mostly Hispanic and Latino votes.

Note that in Jefferson’s words regarding immigration he specifies “our laws acknowledge … your right to join us” and the requirement that immigrants conform “to our established rules.”

But, as usual, “laws” and “rules” are now wholly ignored in favor of political expedience.


What law was Jefferson referencing? Before addressing the current immigration fiasco, let’s revisit some fundamental constitutional Rule of Law in regard to immigration.

 

[Tilted]

Okay, I read that piece. It's more of the same rubbish that keeps getting repeated.

For starters though, since the author lead with a Jefferson quote, let's make sure this is clear: The constitutional basis for (automatic) birthright citizenship wasn't enacted until 1868. Mr. Jefferson lived a good long time; he did not, however, live to the ripe old age of 125 which is hold old he would have been in 1868. That quote doesn't refute the notion of (automatic) birthright citizenship, but even if it did it wouldn't control our understanding of changes made to the Constitution 2/3rds of a century later. It doesn't even much inform our understanding of those changes.

The 14th Amendment made everyone born in the U.S., with only a couple of understood (and discussed) exceptions, citizens of the United States. People wanting to believe that it doesn't, and wanting to support that belief, have, e.g., pulled comments out of the Senate debate on the 14th Amendment's Citizenship Clause. They've taken those comments out of context (sometimes truncating them in the middle of a sentence) and suggested that the people debating the clause in the Senate understood it to mean something different than what they actually did understand it to mean. If you read the entire debate, and your intention is to figure out what they thought it meant rather than to find something to support whatever you've already decided it (or want it to have) meant, it becomes pretty clear: They understood the Citizenship Clause to mean that people born in the United States - even if born to alien parents - would be citizens of the United States, with the only exceptions being that the children of certain Indians and of diplomats would not. I've discussed those debates in greater detail elsewhere, so I won't go through them again here.

(Note: There doesn't seem to have been a House floor debate on the Citizenship Clause that was adopted, the Senate changed that provision of the Amendment and when the entire Amendment was returned to the House for approval there wasn't a debate on the specifics of the Amendment as it then existed.)

And since, as the piece linked in the OP suggests, one of the points of the 14th Amendment was to constitutionalize (and thus give greater protection from future change to) what had been done with the Civil Rights Act of 1866, President Johnson's comments on why he vetoed that Act provide insight when it comes to what the Citizenship Clause was understood to mean. He made it clear that the Civil Rights Act would make U.S. citizens of children born in the U.S. to alien parents. That's one of the reasons he vetoed it, he didn't want that to be the case. Others, including some in the Senate, didn't want that to be the case either. But they lost on that issue as the Act and then the Amendment were passed.

To touch briefly on the notion of people being here illegally and how it plays into this consideration. It is correct that the drafters of the 14th Amendment didn't say that it made people born to people who were here illegally citizens. We didn't have people that were here illegally then; we had aliens and we had citizens (and some other categories) but it wasn't illegal (for the most part) for anyone to be here. The 14th Amendment's Citizenship Clause sets the basic rule, a rule that Congress isn't allowed to legislatively violate, that people born here are citizens (with only the exceptions that they acknowledged, those that they meant the jurisdiction proviso to create). The First Amendment didn't say it applies to things posted on the internet, the Second Amendment didn't say it applies to Colt 1911s. But those Amendments set rules that were to be followed (unless changed) even in light of future developments and specific circumstances that the drafters might not have anticipated.

So Congress likely can make it illegal for some foreigners to be here. But it can't, in doing that, make it such that their children born here aren't U.S. citizens. That's the whole point of constitutional provisions. Congress can't by law (or isn't supposed to be able by law to) get around the requirements of the Constitution. The rule created by the drafters of the 14th Amendment still applies. Children born to aliens are subject to the jurisdiction of the United States. The children born to certain Indians (e.g. because of treaties we've signed with them granting them or acknowledging their sovereignty) and to diplomats aren't. So children born here to aliens, legal or illegal, tall or short, stinky or sweet smelling, desired or undesired, are U.S. citizens. Congress doesn't get to make it otherwise. That would require a constitutional amendment.

I'd also note that the Wong Kim decision came less than 30 years after the adoption of the 14th Amendment. It isn't some modern warping of what they meant a hundred and fifty years ago when they passed that Amendment. It was fairly contemporaneous. And it accurately acknowledged what the Citizenship Clause of the 14th Amendment was, at least by the people debating it in Congress, understood to mean. Born here, citizen here - except for these particular cases that we've intentionally and acknowledgedly carved out.

 

[Hodr]

A very well reasoned and well presented argument. And it will be completely hand-waved away by people who don't agree with it and who have enough evidence (their uncle's cousin's sister-in-law said there is no support in the constitution or law for citizenship) to satisfy their own curiosity. Same as the people who insist there is no right of the government to tax citizens.

I don't favor illegal immigration, more because of the "unfairness" of skipping in line than because I dislike immigrants. I also understand that significant portions of our current economy are propped up by the depressed wages that illegals are more often willing to accept (agriculture and construction).

And I realized some time ago that if my social security is to be in-tact when I retire, given the birthrate of the US, that we need as many new tax paying workers as possible.

 

[GURPS]

gotcha

... any cow popping out a child withing the borders of the US, that child is considered a citizen per the 14th Amendment