Anchor Babies Aweigh

A pregnant woman enters the United States illegally and gives birth to her baby within the country. Should this child be granted American citizenship automatically in virtue of being born in the United States? With illegal immigration being such a serious issue at present, the question of "anchor babies" becomes a crucial one.

Leading Republican Senators including Republican Senate leader Mitch McConnell of Kentucky, John McCain and John Kyl of Arizona, Jeff Sessions of Alabama, and Lindsay Graham of South Carolina have challenged birthright citizenship with McConnell stating that he supports holding Congressional hearings on the Fourteenth Amendment right. With the ongoing battle over the Arizona immigration law raging and growing suspicion that President Obama seeks to grant amnesty through executive fiat, the issue of "anchor babies" will surely become more contentious in the coming days. The Department of Homeland Security estimates that there are 10.8 million illegal aliens living in the United States. The Pew Hispanic Center estimates that of 2008, there are 3.8 million illegal aliens living in the United States whose children are United States citizens.

As with all federal legal issues, the starting point must be careful examination of the Constitution. Section 1 of the Fourteenth Amendment states "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." Jeff Sessions has said "I'm not sure exactly what the drafters of the [Fourteenth] amendment had in mind, but I doubt it was that somebody could fly in from Brazil and have a child and fly back home with that child, and that child is forever an American citizen." Senator Sessions' instincts concerning how the analysis of the issue should begin are quite right. But is he right about the intentions of the drafters of the Fourteenth Amendment?

The Fourteenth Amendment was ratified on July 9, 1868 during the Reconstruction Era following the Civil War. In 1857, the infamous Dred Scot decision held that no black of African descent, even a freed slave, could be a citizen of the United States. The Fourteenth Amendment was designed, in part, to prevent states from denying citizenship to freed slaves by validating the Civil Rights Act of 1866, which stated that "All persons born in the United States and not subject to any foreign power, excluding Indians and not taxed, are hereby declared to be citizens of the United States."

The question of what "born or naturalized" in the United States means is clear enough, but to determine the constitutional question concerning "anchor babies," one must determine what "subject to the jurisdiction" of the United States means. "Jurisdiction" does not simply mean subject to the laws of the United States. Any person within the United States is subject to the laws of the United States whether a citizen, a visitor, a foreign diplomat, or an illegal alien. Jurisdiction implies allegiance to the United States, and this, of course will not include visitors, foreign diplomats, or illegal aliens. However, this interpretation of "jurisdiction" and of the broader interpretation of citizenship is grounded in the theory of citizenship that one espouses.

The traditional theory of citizenship, grounded in feudalism, is the British view of birthright citizenship. Sir William Blackstone articulated this view clearly in his Commentaries on the Laws of England where he said that natural allegiance "is due from all men born within the king's dominion immediately upon birth," and therefore, such allegiance "is a debt of gratitude which cannot be forfeited, cancelled, or altered, by any change of time, place, or circumstance." The competing theory is the theory of consent citizenship. This view is summarized by Thomas Jefferson in his Summary View of the Rights of British America where he argues in favor of a natural right to leave the country where "chance and not choice" has placed a person. This theory is inherent in the Declaration of Independence as revolution is not possible if one holds an allegiance to the mother country by birth. This view was given concrete form in the Expatriation Act of 1868 which recognized the right of expatriation as "a natural and inherent right of all people, indispensable to the enjoyment of the rights of life, liberty, and the pursuit of happiness." During this period, the birthright theory of citizenship was generally viewed as being incompatible with the principles of republican government.

This was all changed by the Court in United States v. Wong Kim Ark (1898). Wong Kim Ark was the child of Chinese immigrant parents who were not citizens. He was born in San Francisco sometime between 1868 and 1873. After leaving the United States with his parents to return to China, Wong Kim Ark returned to the United States on his own in 1890 and was granted entry "upon the sole ground that he was a native-born citizen of the United States." However, in 1895 upon returning from a visit to China, he was denied permission to enter the United States. The Collector of Customs who denied him entry argued that Wong Kim Ark, "although born in the city and county of San Francisco, state of California, United States of America, is not, under the laws of the state of California and of the United States, a citizen thereof, the mother and father of the said Wong Kim Ark being Chinese persons, and subjects of the emperor of China, and the said Wong Kim Ark being also a Chinese person and a subject of the Emperor of China." In a 6-2 decision, the Supreme Court held that under the Fourteenth Amendment, a child born in the United States of parents of foreign descent who, at the time of the child's birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of United States territory, becomes a citizen of the United States at the time of birth. The Court's rationale was that the Fourteenth Amendment had to be interpreted in light of English common law, and hence, it officially adopted the birthright theory of citizenship. In his dissent, Justice Melville W. Fuller argued that the United States had rejected this view after independence through recognizing the right of expatriation.

The birthright theory of citizenship, although officially accepted by the Supreme Court, is inconsistent with the republican form of government. It is also inconsistent with the very notion of natural rights. In effect, it means that the American Revolution was illegitimate and that the Founding Fathers still owed allegiance to the English Crown despite its tyranny. The birthright theory of citizenship returns all citizens to the state of being serfs who are nothing but the possessions of the ruling powers. While the debate on the issue will no doubt be couched in terms of irrelevant and misleading fringe issues with charges of racism flying freely, the issue is much larger than simply whether a child born in the United States to illegal aliens ought to be made automatically a citizen. The important issue is the status of each American citizen and whether he or she gives allegiance to the government freely through consent or is simply a serf that is owned by his or her lords.

Legal experts widely believe that birthright citizenship can only be changed by amending the Constitution. As always, this should be viewed as the last possible solution, a "nuclear option" as it were. The first line of attack should be seeking to have the erroneous precedent set in United States v. Wong Kim Ark overturned in court. However, as with most things associated with the immigration issue, politicians are unlikely to do anything that might alienate Hispanic voters. As always, our weak willed leaders like McConnell, McCain, Kyl, Sessions, and Graham are likely to want to sound tough on illegal immigration without actually doing anything about it. They will do what is necessary to maximize the number of votes they can win on both sides of the issue.

The theory of birthright citizenship should be rejected for reasons other than the problem of illegal immigration. It is not even a band aid for that wound anyway. It should be rejected to restore the status of autonomous and consenting citizen to each and every American citizen. The problem of illegal immigration will not be solved by turning innocent children into scapegoats. It will only be solved by dismantling the entitlements of the welfare state, by making legal immigration more streamlined, and by severely penalizing the Economic Royalists on the right and left who wish to employ illegal aliens at virtual slave wages in order to save a few dollars while driving down American wages as a result.