by Tom Shuford

“Anchor babies” are the American-born children of illegal aliens or of visiting foreign nationals: These babies, under current interpretation of U.S. law, automatically become U.S. citizens and most qualify immediately for a variety of benefits . . . Over time, they can open the door to citizenship to other family members. Last week, there was a flurry of national news stories announcing the current estimate that 300,000 such babies are born each year in this country. (Al Knight, columnist, Denver Post , June 22, 2005)

CNN 's Lou Dobbs frames the issue in a three-minute video report (Nov. 4, 2005) (1)

The updated estimate by the Center for Immigration Studies is 383,000 such births annually as of 2002. That is 10 percent of all U. S. births. Some experts believe the number is closer to 500,000. Whatever the count, automatic birthright citizenship is a powerful incentive for illegal immigration. (2) This curious policy derives from a century-old misinterpretation of the Fourteenth Amendment's  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 purpose of the Citizenship Clause was to guarantee the citizenship of freed African-Americans. The phrase “and subject to the jurisdiction thereof ” is not a redundancy. The phrase has a limiting purpose, as constitutional scholars can demonstrate.

Until recent decades, however, there were no ill consequences of the court's misinterpretation of the “jurisdiction” phrase, because illegal immigration was either minimal or temporary.

Circumstances have radically changed. Congress needs to amend U. S. immigration laws to deny citizenship to children born to parents who are not citizens or legal permanent residents. The challenge in fixing the problem is political, not constitutional. For as Al Knight observes:

There are, of course, pro-immigration groups whose members wouldn't blink, let alone protest, if the number [of births to illegal alien mothers] was 10 times that high . . .

Automatic birthright citizenship is a potent weapon targeting U. S. sovereignty. Open borders groups will not surrender it without a fight.

This essay will address three realities: 1) the effects of automatic birthright citizenship, 2) a proper understanding of the Citizenship Clause, and 3) the legislative remedy.

Sketches of a Nation Unraveling

In my work as chairman of the House Immigration Reform Caucus, I have traveled frequently throughout the Southwest . . . I have witnessed scores of Mexican women come to the border just to wait until they go into labor. They then ask to be rushed, not to a Mexican hospital, but to an American maternity ward. Hospitals near the border say illegal immigrant women who are near term in their pregnancies actually sit in their cars in the parking lot, waiting to go into labor . . . ( In Mortal Danger: The Battle for America's Border and Security , 2006, by Tom Tancredo, U. S. congressman)

From the Fort Worth Star-Telegram :

Babies born to mothers living in the country illegally comprised nearly three-fourths of the births at Fort Worth’ s public John Peter Smith Hospital this year, the Star-Telegram reported Dec. 14. Of the 5,775 deliveries during fiscal year 2005, which ended in September, 4,207 [73%] were the children of mothers without immigration documents. (“Immigration emerging as big issue in 2006 elections,” Feb. 20, 2006)

From the Los Angeles Times : “birth tourism”:

...One might say it is the ultimate gift that South Korean parents can give their newborns. Those who can cough up the $20,000 or so it costs are coming to the United States by the thousands to give birth so their newborns can have American citizenship . . .

So many are doing it that a mini-industry has developed here of agencies that refer expectant mothers to travel agents, immigration lawyers, prenatal clinics, hospitals and even baby-sitters, arranging what are, in effect, package tours for pregnant women. (“Korean Moms Want ‘Born in USA' Babies,”  May, 2002; see also three-minute video)

Automatic birthright citizenship produces many other “curiosities”:

Yaser Esam Hamdi was born in 1980 in Baton Rouge while his father was on a temporary visa working for Exxon as an engineer. The family shortly returned to Saudi Arabia. In 2001 Hamdi was captured with the Taliban in Afghanistan. As an enemy combatant, he was transferred to Guantanamo Bay. There authorities learned Hamdi was a fellow “American.” Lawyers pounced. They eventually got Hamdi a hearing before the Supreme Court.

“And subject to the jurisdiction thereof”

The “jurisdiction” phrase of the Citizenship Clause means what you, with your common sense, would think it to mean. Let me offer an excerpt from the testimony of Dr. John C. Eastman, Professor of Law, Chapman University School of Law and Director, The Claremont Institute Center for Constitutional Jurisprudence before a U. S. House of Representatives subcommittee on immigration on September 29, 2005:

Historically, the language of the 1866 Civil Rights Act, from which the Citizenship Clause of the Fourteenth Amendment (like the rest of Section 1 of the Fourteenth Amendment) was derived so as to provide a more certain constitutional foundation for the 1866 Act, strongly suggests that Congress did not intend to provide for such a broad and absolute birthright citizenship. The 1866 Act provides: “All persons born in the United States, and not subject to any foreign power , excluding Indians not taxed, are hereby declared to be citizens of the United States” As this formulation makes clear, any child born on U. S. soil to parents who were temporary visitors to this country and who, as a result of the foreign citizenship of the child’s parents, remained a citizen or subject of the parents’ home country, was not entitled to claim the birthright citizenship provided in the 1866 Act.

That is a taste of Dr. Eastman's compelling and easily-understood subcommittee testimony (4,000 words). Download the testimony at the bottom of this page .

In a nutshell

The Supreme Court followed the intent of the framers of the 1866 Citizenship Clause until 1898. In that year, in the Won Kim Ark decision, the court rejected the reasoning of the framers in granting citizenship to the American-born child of legal permanent residents who, at time of birth, were still subjects of the emperor of China.

The decision was flawed, as Dr. Eastman's testimony indicates.

Notwithstanding, “to read the [limited] holding in Wong Kim Ark as determining that the Constitution also mandates automatic citizenship to children of temporary, illegal immigrants not only presses the Constitution's text beyond the breaking point, but significantly intrudes on Congress's plenary power over naturalization.” (Eastman, Wall Street Journal , December 7, 2006)

A comment is in order on the quality of the1898 Supreme Court that rendered the Wong Kim Ark decision: This was the court that, with nearly the same line-up, inflicted the infamous separate-but-equal doctrine on the United States less that two years earlier in Plessy v. Ferguson. ”

The high court is capable of catastrophic error. Plessy v. Ferguson, like the 1858 Dred Scott decision,  caused a world of woe. The current inventive interpretation of the Citizenship Clause, based on the limited holding (the Chinese parents were, after all, legal residents) and flawed reasoning of Won Kim Ark, likewise, has disastrous potential.

Broad and absolute “automatic birthright citizenship” must be abolished.

Remedy

87 members of the House of Representatives are cosponsors of H.R. 698,  which “would amend the Immigration and Nationality Act to deny citizenship at birth to children born in the United States to parents who are not citizens or legal permanent resident aliens.” At the link above, check to see if your representative is among the 87 sponsors; if not, make sure he or she will support H. R.698 when it comes up for a vote.

I talked to a congressional staffer who monitors immigration bills. Momentum is building for H. R. 698. An amendment to the same effect was considered for inclusion in H. R. 4437 (the enforcement-focused measure that passed the House by a margin of 238-180 last December). But no vote was taken because it was too controversial, too new. The support was not there. That is changing.

MY INTERPRETATION: Few realize the seriousness of “automatic birthright citizenship” — because the issue is poorly covered, if at all. Moreover, it would be easy for the news media to demonize legislators who take it on. But the Internet is changing the flow of information and analysis. More people are aware of this issue.

Until two years ago, Ireland was among the very few nations who — like the U. S. — still had automatic birthright citizenship. Ireland got rid of it with a ballot initiative which garnered the support of 80 percent of Irish voters.  Americans do not have the direct ballot option. But the vote in Ireland indicates what the popular support for H. R. 698 could be if the public knew about it. (3) The key is grass roots pressure on legislators. To contact your legislators at Google, type “contact your representative ” and then “ contact your senator. ”

Connections

In this series I have used the metaphor of a road along which are milestones marking America's progression towards a state of pathological openness leading to internal disintegration.

One milestone on this road is the 1982 Plyler v. Doe decision. The Supreme Court, in an expansive application of the Equal Protection Clause of the Fourteenth Amendment, forced taxpayers in communities across the nation to educate children illegally in the United States.

Another milestone is the 1999 nullification of California Proposition 187, which would have denied a range of services to illegal aliens in that state. The nullification of 187 was the work of one federal judge (whose rationale was based in part on Plyler v. Doe) and of a newly-elected governor who found a creative way (“mediation”) to drop the state's appeal of the ruling.

Add to those a third milestone: the 1898 misinterpretation of the Citizenship Clause of the Fourteenth Amendment, which has led to the current policy of “automatic birthright citizenship.”

Notice the common element in these first three milestones: the Fourteenth Amendment. Its lofty generalizations lend themselves to inventive interpretation by ambitious judges. In this there is tragic irony. For what was crafted to secure the rights of freed slaves is now used to erode the precious rights of their descendants, indeed of all American citizens. The Fourteenth Amendment is being used to displace American citizens from jobs, schools, communities and country.

Endnotes

1) In past essays on immigration I have been critical of selective and shallow coverage by the mainstream media. I should have mentioned a rare exception: Lou Dobbs Tonight .  Here is a Transcript of Dobbs' Nov. 4, 2005 broadcast, which includes the segment on anchor babies. The Christian Science Monitor also stands out for its coverage/analysis of illegal immigration.

2) That “automatic birthright citizenship” is an incentive for illegal immigration is suggested by differing fertility rates of Mexican women in Mexico (2.4 births per woman) versus Mexican-born women in the United States (3.5 births per woman). U. S. born-children reduce the odds of deportation and Mexican immigrants — more than most — are at risk, as 80-85 percent of Mexican immigration to the United States since 1980 has been illegal according to the Pew Hispanic Center.

3) The Irish vote eliminating “automatic birthright citizenship” is an indication of popular sentiment against the policy. But the change is not as substantive as it might first appear. Ireland did not abolish birthright citizenship, only automatic birthright citizenship. A child born in Ireland to a foreigner must, at a certain age, opt for Irish citizenship or forever lose that opportunity. Until reaching that age, the child is not an Irish citizen, but would have the potential to become one. While the new Irish policy is better than the U. S. policy of automatic birthright citizenship, it is still an inducement to illegal immigration.

Tom Shuford [email protected] is a retired teacher living in Lenoir, North Carolina.