Browsing the blog archivesfor the day Wednesday, June 2nd, 2010.


The Constitutional Anchor Baby Crisis

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American History, Civil Rights, Immigration, Supreme Court, The Constitution

A few days ago Rand Paul expounded on the “anchor baby” crisis. Anchor babies are, of course, babies born in the U.S. to illegal immigrants. The babies are citizens by virtue of their birth, and this infuriates righties. In recent years Republican lawmakers have been promoting a bill that would deny citizenship to such babies. Mind you, this is coming from some of the same people who want to extend citizenship to frozen embryos.

Yesterday, in an entirely different context, Jeffrey Goldberg quoted the Babylonian Talmud: “Who is wise? The one who can foresee consequences.” That may become my new favorite saying. Applied to the citizenship question — like it or not, the 14th Amendment gave us a clear, bright line regarding citizenship:

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.

I can see all kinds of unfortunate consequences of making that clear, bright line fuzzier and darker. Leave well enough alone, I say.

Now, most legal experts say that because of the 14th Amendment, Congress does not have the power to deny citizenship to so-called “anchor babies.” Doing this would require a constitutional amendment. But righties are arguing no, because the 14th Amendment doesn’t say what it says. This argument was presented by none other than George Will a few days ago, and it is a tortured argument, indeed. But when I read Will’s column I didn’t have the time to research what he was saying to see if it could hold mayonnaise, never mind water.

But lo, yesterday, while researching something else entirely, I ran into a discussion of United States v. Wong Kim Ark, 169 U.S. 649 (1898) (see also Wikipedia discussion of Wong). Wong Kim Ark was a man born in the United States of ethnic Chinese parents. At the time, the Chinese Exclusion Act was in effect. You probably remember that this barred anyone of the Chinese “race” from entering the U.S., and it denied citizenship to ethnic Chinese people already in the U.S. Wong challenged this law, and in a 6-2 decision the Supreme Court agreed with Wong, and said he was a citizen of the United States by virtue of being born here. And it seems to me there’s a made-for-television movie script in there somewhere.

Anyway, as I read about the Wong decision I realized that the dissenting argument in the Wong case is exactly the same argument being made today by Will and the Republican lawmakers.

The dissent was based on an interpretation of the phrase “subject to the jurisdiction thereof.” Will and the two SCOTUS dissenters (John Harlan and Melville Fuller) say this phrase means “and not subject to any foreign power.” In their dissent of Wong, Harlan and Fuller point out that native Americans were (at the time) not citizens of the U.S. because the Civil Rights Act of 1866 had given citizenship to “all persons born in the United States and not subject to any foreign power, excluding Indians not taxed.”

This act became law just two months before the 14th Amendment was proposed. So, the argument is, this wording gives us insight into where lawmakers’ heads were at the time. And thus, if the parents are subjects of a foreign power, then their baby born in the U.S. is not eligible for citizenship. This was the dissenting opinion in Wong in 1898, and Will repeated this same argument in his Washington Post column. Will doesn’t bother discussing that pesky Wong majority opinion, however.

Will argues further,

What was this [the jurisdiction phrase] intended or understood to mean by those who wrote it in 1866 and ratified it in 1868? The authors and ratifiers could not have intended birthright citizenship for illegal immigrants because in 1868 there were and never had been any illegal immigrants because no law ever had restricted immigration.

As far as I know, the Chinese Exclusion Act was the first attempt to render any sort of immigration illegal, and it didn’t become law until 1882. Congress had passed an earlier version of the exclusion act in 1878, but this was vetoed by President Hayes. But the Wong majority decision says plainly that an act of Congress making Chinese immigration illegal, and denying citizenship status to ethnic Chinese, did not override the clear language of the 14th Amendment.

So, whether Will and the Republican lawmakers like it or not, SCOTUS already nixed their argument.

The majority opinion in Wong is based partly on English common law, which said that babies born in England are English, with the exception of the children of diplomats and children born to hostile forces occupying English territory.

In addition, at the time native American tribes were not considered subject to U.S. jurisdiction and were therefore not citizens. Another case decided in 1884 (Elk v. Wilkins, 112 U.S. 94) had declared that a native American who left his tribe and went to live in a white community didn’t automatically get citizenship, although he could be considered a citizen if he went through whatever naturalization process existed at the time and paid taxes.

Will leans heavily on the example of non-citizen native Americans to argue that the 14th Amendment was not intended to confer citizenship to babies of foreigners who happened to be in the U.S. at the time. But the Elk decision (which Will doesn’t mention, either) did not consider Indian tribes to be foreign states. A tribe was an alien political entity which Congress dealt with through treaties, but not the same thing as a foreign nation.

So, it seems to me the Wong decision — the majority opinion, anyway — more closely speaks to the circumstance of babies born in the U.S. to illegal immigrants than does the Elk decision. And I think I just blew by nerd blogging quotient for the day.

Update: Read more about Wong Kim Ark in “The Progeny of Citizen Wong.”

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