Does the 14th amendment really give citizenship to "anchor babies"

[brickbacon]

According to this wiki article, citizenship for anchor babies is really a pratice based on the misinterpretation of the 14th amendment.

One of the most fascinating aspects of anchor babies is that they are not actually citizens of the United States, although they are widely treated as such by the executive and judicial branches. The Fourteenth Amendment to the Constitution states that:

“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.”

Awarding the domestically born children of illegal immigrants automatic citizenship is the result of a recent misreading of the Fourteenth Amendment. The original purpose of the amendment was to patriate the newly freed slaves. The phrase “subject to the jurisdiction thereof” excludes the domestically born children of foreign nationals, and according to Senate records, was specifically inserted to make it clear that a person is not a citizen simply by the location of their birth. Children born to foreign nationals fall under the jurisdiction of their parent’s respective governments. The United States Supreme Court ruled on the meaning of this phrase in Elk v. Wilkins112 U.S. 94 (1884), and has never reversed its interpretation.

The citizenship of persons born within the United States may still be decided by an Act of Congress, as was done for native americans in the Indian Citizenship Act of 1924. In recent practice, contrary to precedent, and strangely in the absence of an Act of Congress, all children born in the United States have been “granted” automatic citizenship, except for those born to ambassadors and their staffs. The Citizenship Reform Act of 2005 (currently proposed as H.R. 698) would ammend the Immigration and Nationality Act to re-clarify that the domestically born children of foreign nationals are not granted automatic citizenship.

It this true?

[SteveG1]

It would raise a huge, ginormous humongous stink. The precedent has already been set that, either through negligence, benign neglect, or whatever, that all people born in the US were considered to be, and treated as citizens.

“…In recent practice, contrary to precedent, and strangely in the absence of an Act of Congress, all children born in the United States have been “granted” automatic citizenship,…”

I think this “recent practice” sets the precedent. I wonder how many people, born here, and reaching their productive years (or even retirement age) would have to be deported to a “mother land” they’ve never seen - assuming worst case there is no grandfather clause. It would be a disaster for them, and for any politician who actually dared to vote for it.

[Shagnasty]

The Supreme Court is the one charged with interpreting the Constitution of the United States. Anyone can say anything they want about what they think an amendment means but that doesn’t mean squat. A new case would have to be brought before them and they would have to rule on it before a different interpretation is meaningful. Perhaps Congress could prompt them for a new ruling by passing a law against children of illegal immigrants having automatic citizenship. Until then, our current laws are what they are and the precedent is what it is. Who knows what would happen if Congress tried to change that?

[brickbacon]

@Shagnasty

The Supreme Court is the one charged with interpreting the Constitution of the United States. Anyone can say anything they want about what they think an amendment means but that doesn’t mean squat.

The wiki article says they already have interpreted the amendment.

@Shagnasty

A new case would have to be brought before them and they would have to rule on it before a different interpretation is meaningful.

Why? If they have already “ruled” on it, why would they have to affirm a ruling?

@Shagnasty

Perhaps Congress could prompt them for a new ruling by passing a law against children of illegal immigrants having automatic citizenship. Until then, our current laws are what they are and the precedent is what it is. Who knows what would happen if Congress tried to change that?

I am asking whether the wiki article was accurate. Why would it be difficult for the government to actually start enforcing the law (assuming the article is accurate)?

[foolsguinea]

Hurm. While the OP may have a strict positive-law leg to stand on, abolishing birthright citizenship is problematic for practical reasons. Persons born in the USA may live here their whole lives, & may identify more with the USA than their parents’ homeland(s). Some may for political or economic reasons not actually have other homelands to go to.

Any new law restricting the granting of citizenship would have to be very carefully defined & extremely carefully applied. It should not leave a person stateless, nor refuse American citizenship to refugees, nor take US citizenship away from the children of Americans. Because of this, such a law could be circumvented in various cases by claims of American paternity, by claims of refugee status, or by simple refusal to identify country of origin. In response, harsh penalties would be written, & an executive office charged with clearing up fraud.

I’m not sure it isn’t less trouble just to grant dual citizenship to children born in our borders.

[SteveG1]

@14th Amendment

Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

It starts right off, with ALL. It doesn’t say “all except for…”.
It follows to say that no state shall do “bad things” to them, or deny them of any provileges.
“…under jurisdiction…” Anyone living in any state, except for 3 specific cases, is subject to those laws, and so is already under the jurisdiction of that state.
“… equal protection of the laws…” EQUAL, not depending on whether any “conditions”.

From Wikipedia:
http://en.wikipedia.org/wiki/Fourteenth_Amendment_to_the_United_States_Constitution

@Wikipedia

The amendment provides a broad definition of national citizenship, overturning a central holding of the Dred Scott case. It requires the states to provide equal protection under the law to all persons (not only to citizens) within their jurisdictions.

Current Supreme Court Justice David Souter has called this amendment “the most significant structural provision adopted since the original Framing”. (McCreary County v. ACLU of Kentucky (2005)), although the true significance of the Amendment was not realized until the 1950s and 1960s, when it was interpreted to prohibit racial segregation in public schools and other facilities in Brown v. Board of Education.

More from Wikipedia:

@Wikipedia

This represented Congress’s reversal of that portion of the Dred Scott v. Sandford decision that declared that African Americans were not and could not become citizens of the United States or enjoy any of the privileges and immunities of citizenship. The Civil Rights Act of 1866 had already granted U.S. citizenship to all persons born in the United States; the framers of the Fourteenth Amendment enshrined this principle in the Constitution in order to stop the Supreme Court from ruling it unconstitutional for want of congressional authority to pass such a law, or from a future Congress altering it by a bare majority vote. The provisions in Section 1 ensure that children born on United States soil, with a very small number of exceptions, are U.S. citizens. This type of guarantee—legally termed “jus soli”, or “right of the territory”— does not exist in most of Western Europe, although it is common in the Americas.

The phrase “and subject to the jurisdiction thereof” indicates that there are some exceptions to the universal rule that birth on U.S. soil automatically grants citizenship. The Supreme Court precedent set by the case of United States v. Wong Kim Ark interprets the exception narrowly to cover only the following:

* Children born to foreign diplomats
* Children born to enemy forces in hostile occupation of the United States
* Native Americans born on tribal lands

So, unless the person is the child of a diplomat, or The Enemy (during war of course), or Native American born o tribal lands (a sovereign territory???), then that person IS a citizen by right of birth.

[foolsguinea]

Excuse me. Steve is right. The OP has no positive-law leg to stand on.

[rbroome]

@brickbacon

According to this wiki article, citizenship for anchor babies is really a pratice based on the misinterpretation of the 14th amendment.

It this true?

Frankly, this looks like a political position inserted into wiki. I am not a lawyer and the legal arguments may be exactly as stated. Don’t know. Seems unlikely.

All I note is the clear wording of the constitution. All persons born in the United States…
The legislative record is created to provide guidence to the courts in interpreting a law. However, in this case it doesn’t strike me as needing much interpretation. The congress could have talked about a lot of things, but when it came time to vote they stated that all persons born in the US… That is how it has been interpreted since. Don’t know much about the history of this issue-never considered it up for debate. So, I suspect, but do not know, that someone inserted a political position in wiki in the hope that others will accept it as fact. Don’t know for sure, the wiki author may be perfectly correct, but it strikes me as odd that congress would say All persons born… and someone would come along and say what they really meant was All persons born and meeting this additional unstated conditions…

[Random]

The wiki article is, at best, misleading.

It states:

Awarding automatic citizenship to the domestically born children of non-citizens is the result of a recent interpretation of the Fourteenth Amendment. The original purpose of the amendment was to patriate the newly freed slaves. The phrase “subject to the jurisdiction thereof” excludes the domestically born children of foreign diplomats, and according to Senate records, was specifically inserted to make it clear that a person is not a citizen simply by the location of their birth. Children born to foreign diplomats fall under the jurisdiction of their parent’s respective governments. The United States Supreme Court ruled on the meaning of this phrase in Elk v. Wilkins112 U.S. 94 (1884), and has never reversed its interpretation.

The plaintiff in Elk was an American Indian, not a child of a foreign diplomat or illegal immigrants. The above quote implies otherwise.

I’m not going to go into why Elk is no longer good law on the Indian issue. That’s irrelevant to the claim in the wiki article.

Even if one assumes, however, that dicta in Elk can be construed as supporting the claim of the wiki author (that US-born children of foreign noncitizens residing in the US are not covered by the 14th Amendment), the claim that the Supreme Court has never reversed its position is false. See United States v. Wong Kim Ark, 169 U.S. 649 (1898), which held that:

The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html

[Shagnasty]

You don’t seem understand the US model of government that well. The wikipedia article isn’t true or false. It can only be made true or false through specific actions of different branches of government.

@brickbacon

The wiki article says they already have interpreted the amendment.

The case given was a single case in 1884. Of course the Supreme Court goes back and revisits decisions from time to time. This would be an absolutely huge one and they would rule on it again.

Why? If they have already “ruled” on it, why would they have to affirm a ruling?

The Supreme court can interpret the Constitutional how they like. The Justices that ruled on a limited case in 1884 have since passed. We have a new Supreme Court and this is one issue that would definitely catch their eye and a suit would be brought to make an appropriate case available.

I am asking whether the wiki article was accurate. Why would it be difficult for the government to actually start enforcing the law (assuming the article is accurate)?

The wikipedia article provides an alternate interpretation of the amendment. If we go back to Civics 101, we have three branches of government. Th executive branch is obvious but then there are two levels of Congress. They can change laws however they want but when the inevitable suit gets brought on matters such as these, it will go straight to the Supreme Court and get a new ruling. That may or may not strike down any law that Congress chooses to pass. Until then, they are citizens in every way and it is hard to see how any law could revoke citizenship for anyone that already has it. Where they would go and what country they would become a citizen of are insurmountable problems. There is the possibility that the children of illegal immigrants would be denied citizenship but there are huge problems with that. They could end up stateless and that is a very bad thing.

In the interest of fighting ignorance, let me make this painfully clear. Congress can do what it chooses to make people citizens or non-citizens but it will go straight to the Supreme Court and only they can rule on the interpretation. What they say is the interpretation is the interpretation. It doesn’t matter what someone on an open source on-line encyclopedia thinks it is.

[Random]

@Shagnasty

The wikipedia article isn’t true or false.

Yes, it is. It’s false. See my post and that of SteveG1.
And as for your other main point, Congress cannot overrule the Wong Kim Ark interpretation of the Constitution by statute. It would require a further amendment to the Constitution.*

*or an amazingly-unlikely SCOTUS rejection of the Wong Kim Ark precedent.

[SteveG1]

The case would go to the Supreme Court. What would happen? Let’s say Justice Scalia, presumably a textualist, looks at it, for example. He will see that the Amendment starts right off with “ALL persons born or naturalized”. It does not say “all except those named Manuel or Jose or Ricardo”. That will be the end of it. The original law will stand as written.

[Shagnasty]

@Random

Yes, it is. It’s false. See my post and that of SteveG1.
And as for your other main point, Congress cannot overrule the Wong Kim Ark interpretation of the Constitution by statute. It would require a further amendment to the Constitution.*

*or an amazingly-unlikely SCOTUS rejection of the Wong Kim Ark precedent.

I am not a lawyer but I do know the US government pretty well. I agree that any other interpretation is unlikely even by Congress. However, would you agree that there is a 1% chance that some Congress in the next few years would be reactionary enough to try to pass a law that outlaws new citizenship for children of illegal aliens? I think so. What would stop them at that particular step assuming that it was brought and passed in one week?

After that, an instant suit would be brought and the Supreme Court would shoot it down. That is the end.

Is there any issues with that statement?

[brickbacon]

@Shagnasty

You don’t seem understand the US model of government that well. The wikipedia article isn’t true or false. It can only be made true or false through specific actions of different branches of government.

Bullshit. Of course it is true or false. You are the one who apparently has a reading comprehension problem.

@Shagnasty

The case given was a single case in 1884. Of course the Supreme Court goes back and revisits decisions from time to time. This would be an absolutely huge one and they would rule on it again.

But the article states that they havbe not revistied the issue, and that the initial ruling/interpretation still stands.

@Shagnasty

The Supreme court can interpret the Constitutional how they like. The Justices that ruled on a limited case in 1884 have since passed. We have a new Supreme Court and this is one issue that would definitely catch their eye and a suit would be brought to make an appropriate case available.

A rulings have nothing to do with the justices deciding them (in theory). Just because they have passed doesn’t mean the ruling is invalid.

@Shagnasty

There is the possibility that the children of illegal immigrants would be denied citizenship but there are huge problems with that. They could end up stateless and that is a very bad thing.

Very doubtful. See jus sanguinis.

@Shagnasty

In the interest of fighting ignorance, let me make this painfully clear. Congress can do what it chooses to make people citizens or non-citizens but it will go straight to the Supreme Court and only they can rule on the interpretation. What they say is the interpretation is the interpretation. It doesn’t matter what someone on an open source on-line encyclopedia thinks it is.

Thanks for the civics lesson grandpa. I understand how the law works. My question was about the accuracy of the article.

[brickbacon]

SteveG1, I believe you made a strong case, but do you have any other cites? It seems wrong to use a wiki article to refute antoher wiki article. Thanks.

[Rico]

<mod>

Brickbacon, a little strong there, weren’t you? Take it down a couple of notches.

Besides, this is headed to Great Debates rapidly. I think I’d better help it.

Moved.

</mod>

[brickbacon]

@Rico

<mod>

Brickbacon, a little strong there, weren’t you? Take it down a couple of notches.

Besides, this is headed to Great Debates rapidly. I think I’d better help it.

Moved.

</mod>

Sorry, I just don’t appreciate being lectured. My apologies to all.

[Frank]

@brickbacon

SteveG1, I believe you made a strong case, but do you have any other cites? It seems wrong to use a wiki article to refute antoher wiki article. Thanks.

You may wish to go back and reread random’s post #9.

I agree that the wikipedia article is at best one-sided, and at worst, deliberately misleading. Jackpot baby? It is as blatant an example of POV as I have ever seen on wikipedia, and I see no reason why a more balanced, nuanced article cannot be used to refute it.

[brickbacon]

@Random

Even if one assumes, however, that dicta in Elk can be construed as supporting the claim of the wiki author (that US-born children of foreign noncitizens residing in the US are not covered by the 14th Amendment), the claim that the Supreme Court has never reversed its position is false. See United States v. Wong Kim Ark, 169 U.S. 649 (1898), which held that:

But does the term “carrying on business” apply to those who are here illegally? It seems as if the intent of that ruling (IANAL) was not to cover those who deliberately break the law to gain access to social services, and an easier road to citizenship. To me it seems as if that phrasing is meant for people here on work/student visas, etc. What am I missing?

[Random]

Can you show me what part of the opinion leads you to that conclusion?