The Constitutional Anchor Baby Crisis

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.”

19 thoughts on “The Constitutional Anchor Baby Crisis

  1. George Will doesn’t need facts or precedents, because where there’s a ‘will,’ there’s a way.
    He’s trying to do with immigration, what he did with climate change: Ignore & deceive – rinse & repeat.
    It’s important to remember that early in our country’s history, women born here did not come even close to having the full rights of citizenship, and people of African descent had none at all, unless freed by their masters.
    With the SCOTUS we have now, I’m not sure the Wong Kim Ark decision would be upheld. The court has ‘actively’ thrown out precedents in the corporate funding of elections recently, and just the other day, in a truly bizarre decision, in my opinion, flipped Miranda around on its ass.
    Anchor babies become citizens with full rights, which means the corporations who run America would have to pay them more., and they could vote. If they remain in some nebulous purgatory, and have to go throught steps to become citizens, they could be exploited for a longer period of time. Never mind that probably a minority of the anchor children born here are white. That, in itself, is a means to extend power for the eventual white minority. Maybe I’m getting too crazy or conspiratorial, but in todays America, that about par for the course.
    I’d hope the SCOTUS uphold it, but I’m just not sure anymore. And I certainly wouldn’t put any money on it.

  2. “Mind you, this is coming from some of the same people who want to extend citizenship to frozen embryos”

    Yes Maha but frozen embryos don’t vote, the wing-nut ideology when it comes to immigration is all about electoral politics, nothing more nothing less, they know that most illegal’s will not vote for them once legal, so they must head them off at the pass, including the babies (what ever happened to family values). I have a niece that has a 3 year old daughter, the father is illegal, are they going to give the kid 50% citizenship?

  3. [Righties] they know that most illegals will not vote for them once legal

    Actually, I think a great many Hispanic citizens would vote GOP. They tend toward conservative Catholicism and “family values,” and to support anti-gay, anti-abortion candidates. I think this is one of many enormous mistakes in Rightie thinking about illegal immigration.

  4. So Michelle Malkin would lose her citizenship under the Republican anchor baby bill? (That would be one unintended consequence I could live with!)

  5. “Actually, I think a great many Hispanic citizens would vote GOP”

    Most polls show Latino’s voting D 65% of the time. Here is one such study. Had the wing-nuts not embraced the xenophobia of the Sherriff Arpaio’s of the world they may have held onto the Latino vote that they once controlled before Bu$hco’s second term. They’ve pissed that vote away in favor of the time tested “southern strategy” just insert brown for black!

  6. Bravo, Maha! As good a summation as ever I have read! Certainly any court with even a minimal respect for stare decisis (let the decision stand (referring to respect for established legal opinions)) would find that case history militates for the 14th applying to all children born in the U.S. other than children of parents with diplomatic immunity (who are not “subject to the jurisdiction thereof”).

    We still have, however to argue the case for or against the citizenship of John Sidney McCain (who was NEITHER born nor naturalized in the United States). Can I be a McCain birfer? Please? Pretty please??? :-)))

    (and, yes, if you are wondering, I do speak with both commas and parentheses 🙂

  7. “Do you sound them out like Victor Borge used to do?
    LOL! God, am I showing my age (you, maha, I assume, saw the shows on replay, VHS, or DVD.
    I studied classical piano from ages 4 to 17 – I was considered either a prodigy, a parody, or a progidy – I think that meant I wasn’t that f-in good.
    Borge was one of the greatest comedians ever. HE WAS A GENIOUS!!! To play as well as he did, and create humour out of it was a rare, and, as far as I can seem a unique talent.
    He was like the rare Shakespeare actor who really, really got the comedy. Almost every serl-imfatuated gasbag can think they can do justice to Hamlet, Richards II & III, and the Henry’s. They don’t dare the comedy role, they’ll be killed.

  8. LOL! God, am I showing my age (you, maha, I assume, saw the shows on replay, VHS, or DVD.

    Um, no. I used to watch Borge when he was a guest star on the TV variety shows. He was one of a kind. He popped right into my head at mention of talking in punctuation marks.

  9. Count me in as old enough to rember Victor Borge. You kids replay one of the funniest bits ever put on film. Ranking right up there with ‘Who’s on First?” which is truly inspired.

  10. Very good! 🙂 All I can say in response (with an evil grin!) is…. not yet… but let me work on it!

    I am also of the generation to have seen Victor Borge live (I think of you, Cundgulag, Doug Hughes and I all as being “fiftyish” from reading y’alls writings), but that’s a pretty big “generation” since he started playing live in the 1926 (thank you Wikipedia!), played on the Muppet Show, and died in 2000 a couple of days after his last performance. 75 years! And you have to be under 10 never to have had the opportunity to see him perform live.

  11. BTW, how do I get a different “picture” when I comment? the triangle with glasses is fine (yellow would be more appropriate than pink, but we’re postwar, so…), but the tape over the mouth just isn’t me.

  12. apikoros Just enter a different e-mail address in the leave a reply mail box, or you can go to and upload a picture icon that might suit your preference.

  13. That’s a great idea to make the anchor babies illegal…with just the stroke of a pen we can go from 12 million illegal aliens 40 million illegals. It will certainly make for some great job security for the ICE folks. And if they play their cards right the war on illegal aliens could even be more lucrative than the war on drugs.

  14. “go from 12 million illegal aliens 40 million illegals”

    Yeah but anchor babies are easier to catch, so even know we’ll have more brown people, the anchor babies will increase the chance of either side winning, while also improving the chances that both sides will recede. So in the end theory states we’ll have less brown anchor’s? You see what I mean?

  15. American Indians were made U.S. citizens in 1934 with the Indian Reorganization Act. I have mentioned before that I am an American Indian. (I use the term, “American” rather than “Native” because of the definition of “native” being someone born in the United States of America, which would include most every one on this blog.) Also, many people who claim American Indian heritage usually have a very, very small blood quantum of whatever tribe they claim. Many would lose all their American Indian blood if they cut their finger. However, because my American Indian heritage comes from both my father and mother, I do have a substantial claim to an American Indian heritage. My blood quantum if 3/4 with 1/8 unproven. Thus, the BIA recognizes me as having 5/8 American Indian blood quantum. Additionally, I live and participate in my tribal community on a daily basis. I have at least four relatives on our Tribal Council, which is made up of seven tribal members. As a result, this discussion of anchor babies is a little humorous to me. I figure somewhere in George Will’s heritage he has a relative who was technically an anchor baby–at least, in the eyes of an American Indian.

  16. Remember, SCOTUS decisions are settled law and the law of the land, until they’re not. Or they aren’t enforced.

    So once again it comes down to “What does Anthony Kennedy think?”

  17. mnpundit has it correct.

    I was going to point out that it was pretty much settled law that the Second Amendment needed to be read as a whole and applied to the Militia/National Guard only per Justice McReynolds in US v. Miller (307 U.S. 174 (1939)):

    With obvious purpose to assure the continuation and render possible the effectiveness of such forces, the declaration and guarantee of the Second Amendment were made. It must be interpreted and applied with that end in view.

    Scalia decided to trash precedent and make the right independent of Militia service in DC v. Heller.

    I am sure that DC v. Heller will justify much mischief in the future. Anchor babies may be amongst the fallout. Although, losing US citizenship is next to impossible.

    What will be even funnier will be the decision is McDonald v. Chicago. Because no matter what the decision says, it will make a mockery of the Second Amendment.

    Scalia has painted himself and the other four justices into a rpetty corner.

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