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

[Gladstone]

U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) was a case involving an ethnically Chinese man born in San Francisco to non-citizen Chinese laborers who left the US to visit China on several occasions. Previously, Mr. Ark had been let in by saying he was a citizen but on one occasion, the customs official refused to accept this explanation and detained him.

To quote from the Court’s decision:

[QUOTE=The Supreme Court]

The foregoing considerations and authorities irresistibly lead us to these conclusions: The fourteenth amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The amendment, in clear words and in manifest intent, includes the children born within the territory of the United States of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. 196 U.S. at 693.
To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States. Id. at 694.
[/QUOTE]

[magellan01]

[QUOTE=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?
[/QUOTE]

Yes. Basically, the interpretation of the 14th Amendment comes down to the interpretation of one phrase. I’ve underlined it here:

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…

So, the debate is: is there one or are there two criteria for citizenship at birth? Is it enough that persons be “born or naturalized in the US”? Or do they also have to be “subject to the jurisdiction thereof”, as well?

The 14th Amendment was proposed to ensure that Black Americans, who had just been emancipated, would be guaranteed citizenship by the states. Upon its introduction in 1866, Michigan Senator Jacob Howard spelled out the intent of his proposed amendment:

“This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”

The proposal even excluded Native Americans, whose citizenship rights were handled in a later bill.

Here is a current bill on the subject:

http://thomas.loc.gov/cgi-bin/query/z?c109:H.R.698:

And some cites discussing the issue:

http://www.cairco.org/articles/art2002sep11.html

http://www.dailybulletin.com/search/ci_3306507

http://www.usbc.org/profiles/2005/spr/ancor.htm

I found this one particulalry illuminating:

http://www.declaration.net/news.asp?docID=5323&y=2006

An excerpt:

The Civil Rights Act of 1866 had previously asserted that “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.” The immediate impetus for the Fourteenth Amendment was to constitutionalize and validate the Civil Rights Act, because some had questioned whether the Thirteenth Amendment was a sufficient basis for its constitutionality. A constitutional amendment would also have the advantage of preventing a later unfriendly Congress from repealing it.

One conspicuous departure from the language of the Civil Rights Act was the elimination of the phrase “Indians not taxed.” Senator Jacob Howard of Ohio, the author of the citizenship clause, defended the new language against the charge that it would make Indians citizens of the U.S. Howard assured skeptics that “Indians born within the limits of the United States, and who maintain their tribal relations, are not, in the sense of this amendment, born subject to the jurisdiction of the United States.” Senator Lyman Trumbull, Chairman of the Senate Judiciary Committee, supported Howard, contending that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else…subject to the complete jurisdiction of the United States.” Indians, he concluded, were not “subject to the jurisdiction” of the U.S. because they owed allegiance—even if only partial allegiance—to their tribes. Thus two requirements were set for U.S. citizenship: born or naturalized in the U.S. and subject to its jurisdiction.

By itself, birth within America’s territorial limits, as the case of the Indians indicated, did not make one automatically “subject to the jurisdiction” of the U.S. And “jurisdiction” did not simply mean subject to American laws or the jurisdiction of its courts, but exclusive “allegiance” to the U.S. After all, not all who were subject to America’s laws owed it their allegiance. As Senator Howard remarked, the requirement of “jurisdiction,” understood in the sense of “allegiance,” “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.”

Most revealing, however, was Senator Howard’s contention that “every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.” Almost everyone certainly would have understood “natural law” to refer to the social compact basis of citizenship, the basis for citizenship adumbrated in the Declaration of Independence.

-snip-

n 1896, the Supreme Court in Wong Kim Ark argued that the Fourteenth Amendment adopted the common-law definition of birthright citizenship. Chief Justice Fuller’s dissenting opinion, however, argued that birthright citizenship had been repealed by the principles of the American Revolution and rejected by the framers of the Fourteenth Amendment. Nonetheless, the decision conferred birthright citizenship on a child of legal U.S. residents. Although the language of the majority opinion in Wong Kim Ark is certainly broad enough to include the children born in the U.S. of illegal as well as legal immigrants, there is no case in which the Supreme Court has explicitly held that this is the unambiguous command of the Fourteenth Amendment. Birthright citizenship has no constitutional status and clearly contradicts the fundamental principles of republican government.

[Driver8]

[QUOTE=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?
[/QUOTE]

I thought “under the juristriction of” also means that you are “subject to the laws of”? So if you wanted to claim that the children of foreign born nationals were not “under the juristriction of”, surely you are also saying the US has no legal right to impose any laws on them? So if they wanted to, say, murder someone, they’d be okay?!

I am pretty sure that I, as a foreign national on a temporary visa, am under the juristriction of the United States. Or am I wrong? It would certainly put the illegal immigration debate to bed!

[Driver8]

Nevermind, I didn’t see the “juristriction = allegiance” article. Although I don’t know how accurate that is.

[Driver8]

And to irritate everyone with three posts in a row …

“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.”

“Born” and “naturalized” are not prioritized, they are equal concepts in the above sentence. So if we assume “juristriction = allegience”: If I applied for citizenship (in other words, was naturalized) then I would never be a citizen because I was not under the jurisdiction of the United States (as a citizen of South Africa it is unclear how you could say my allegience was solely with the US). So naturalization is impossible, it is logically inconsistent!

If you were to argue that I was under the juristriction of the US after naturalization, then the same argument applies to people after they were born. How are you determining “allegience”? What is the legal intepretation of this?

Logically, I just don’t see how this sentence can mean anything but people who are born or naturalized inside the United States are citizens.

[Hari_Seldon]

Does anyone seriously maintain that a child born in the US and living there is not “subject to the jurisdiction thereof”? A case could certainly be made that a child born in the US loses its citizenship when it leaves the country, but the same case could be made for any citizen who takes up foreign residence (me, for example). A strict constructionist should ignore what some senator from Michigan is alleged to have said. He didn’t get it into the wording of the amendment. Of course, strict constructionist tend to abandon their principles when they don’t like the outcome (cf. the recent California marijuana case).

If the person is a US citizen at the moment of birth (which the strict wording suggests) then they will likely remain so. SCOTUS has consistently taken the attitude that there are no “classes” of citizens (exception made for election to president) and thrown out various laws that treat naturalized citizens differently from others. In fact they have ruled that even becoming a foreign citizen, in the absence of a formal renunciation, cannot automatically remove citizenship. It would be hard to reconcile recent jurisprudence on the subject with this idea. And I cannot believe that SCOTUS would merely reaffirm an old and limited decision on such a controversial topic.

[Cervaise]

[QUOTE=Random]
I’m not going to go into why Elk is no longer good law on the Indian issue.
[/QUOTE]
I know you’re referencing a case, but out of context, I find this sentence enormously amusing.
Elk. Elk elk elk elk elk.

Elk.

[SteveG1]

[QUOTE=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.
[/QUOTE]

Sorry about that, it appealed to my weird sense of humor. I will see what Findlaw or something similar says about it later (I am just checking in for a bit right now).

[Siege]

OK, folks, let’s slow down and look at the practicalities. I’m not an expert on immigration, but I am an immigrant. Please feel free to correct any mistakes I make. I’m posting from experience, not knowledge

First, a significant number of children born in the United States to non-US citizens are the children of legal immigrants, including my own little brother, to account for my own interest in this. Under most circumstances, legal immigrants are not eligible for citizenship until they’ve lived in this country for 7 years, which is an ample time span for children to be born.

Second, as I understand it, there are two documents which can prove US citizenship on their own: a birth certificate and a Naturalization certificate. If we decide that being born in the US is not adequate for citizenship in and of itself, then this complicates the matter of birth certificates. Do they vary from city to city or state to state in the US? I gather they do. At any rate, we’d need to modify them to indicate whether the baby is considered a citizen of the US at the time of his or her birth.

Third, if being born in the US alone is not sufficient for citizenship, would one or both parents have to be citizens and how would this be determined? If it’s one, what’s to stop a woman from lying about the baby’s parentage? We did, after all, have a thread about just this in MPSIMS recently. In some states, including mine, a woman’s husband is presumed to be the father of her baby. If a woman who’s a legal resident married to a US citizen has a child, here the child would be presumed to be her husband’s child therefore granted US citizenship, assuming only one parent must be a citizen for citizenship to be conferred on the child. However, what becomes of the child’s citizenship if, sometime later, the child’s biological father is determined to be someone else who isn’t a US citizen? For that matter, if the law had required that at least one parent be a US citizen, what’s to stop someone like my mother from claiming the father of her child isn’t her (legal immigrant) husband, but the guy next door who was born and raised in the US?

As I said, I do have a bit of a personal stake in this issue, but it looks to me like it would be opening a rather large can of worms and I seem to recall some sage advice about never opening a can of worms unless one plans on going fishing!

By the way, if you think the scenarios I mentioned in my third point are unlikely, I can give you a cite to a recent case in which custondy had to be determined. The parties involved were a surrogate mother, a sperm donor, an egg donor, and the couple who were trying to have the baby in the first place! :eek:

[Random]

@magellan

@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?

Yes. Basically, the interpretation of the 14th Amendment comes down to the interpretation of one phrase. I’ve underlined it here:
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. As has already been established, the wiki article is wrong.

I agree with your statement that the key question is the meaning of the above 14th Amendment clause. That is indeed what must be interpreted to resolve this issue. The point is, SCOTUS already answered the question. In 1898. Read the case. (I’ve linked to the opinion in a prior reply.)

A thousand citations to advocacy sites cannot change this.

[ouryL]

So I am a citizen if my parents were citizens.
So then I have to prove my parents were citizens.
So then I have to prove my parents’ parents were citizens.
So then I have to prove my parent’s parents’ parents were citizens.
So then I have to prove my parent’s parents’ parents’ parents were citizens.
So then I have to prove my parent’s parents’ parents’ parents’ parents were citizens… :rolleyes:

[Random]

[QUOTE=ouryL]
So I am a citizen if my parents were citizens.
So then I have to prove my parents were citizens. [etc.]

[/QUOTE]

No.* Assuming that you were born in the US, you don’t need to do this, unless your parents were diplomats (or members of an invading army).

That’s been said several times, with cites to the governing SCOTUS decision.
*I’m once again disregarding the American Indian issue, as not relevant to the OP.

[SteveG1]

Well, I tried finding some cites that speak only to the citizenship question, and am not having a whole lot of luck. many of the cites want to talk about the Civil War, Reconstruction, and states rights vs federal authority. In short, they seem to be interested in the “power struggles” and not much else. I did find one cite, it was the “14th amendment dummies guide”. Sound perfect? NOT!

Historical Analysis of the Meaning of the 14th Amendment's First Section

It sounded promising, or at least understandable. No such luck. The first half seemed to support what I said. But, the second half reversed itself. So, it looks like to settle this one needs to be both an attorney AND a serious Civil War buff.

But, if as this cite said in the second half, if there are no such citizenship protections for the children of “aliens”, then why not say so in the Amendment itself? That bothers me.

Here are some quotes from this cite:

What lead to the first section of Fourteenth Amendment being proposed and adopted? We’ll let Rep. John F. Farnsworth (Illinois) answer this question since he was there and had the active attention of Bingham and others while he spoke in the House on March 31, 1871:

[W]hy, sir, we all know, especially those of us who were members of Congress at that time, that the reason for the adoption of this [14th] amendment was because of the partial, discriminating and unjust legislation of those States under governments set up by Andrew Johnson, by which they were punishing and oppressing one class of men under different laws from another class.

That would seem (I say SEEM) to support the contention that defining someone as being “spawn of the alien” is indeed creating or defining a different, lower class of person.

The it gets right down to the citizenship clause:

The Citizenship Clause did not originate from John Bingham, but was inserted while the bill was under consideration in the Senate by Sen. Jacob Howard. It was intended to establish who is, and who isn’t, a citizen of the United States. The clause itself is straightforward and came with ample documentary construction over how “subject to the jurisdiction” was to be construed. Sen. Howard introduced the clause this way:

[T]his amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.

Of course the only other class of persons left that can be considered is US Citizens. Note that Sen. Howard considered it “the law of the land” already, confirming that it was already established national law that it was not enough to simply be born within the US to become a United States citizen. Sen. Howard later confirms just this when he said the Citizenship Clause “ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.” Essentially then, the phrase “subject to the jurisdiction” was not used in any sense of geographical location – but in the full sense of allegiance. This is confirmed by Sen. James Kelly a few years later when he said “in order to be a citizen of the United States he must been not only be born within the United States, but born within the allegiance of the United States.”

One might wonder to why Sen. Jacob Howard choose to use the phrase “subject to the jurisdiction thereof” rather than the language of the civil rights bill of 1866 and 1870 that declared: “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”?

Answer: Howard feared that States could eventually impose a tax on Indians thereby making them eligible for citizenship under the Fourteenth. Because of the language “subject to the jurisdiction thereof” required direct allegiance to the United States, Indian’s would be disqualified because they owed their allegiance to their respective tribes which in return were considered foreign nations.

OK, gotta be born here, and gotta have allegiance to the US. So far, it sounds simple (?) But then it gets tricky…

Through the process of naturalization that, among other things, requires a person to renounce all allegiance to their country of origin. The Fourteenth Amendment framers did not recognize as a matter of law that an alien giving birth to a child within the limits United States, is by itself, an act of naturalization on the part of the mother. This is because the naturalization of aliens is a process of rules set forth in naturalization laws, and not something an individual can accomplish through their own acts outside of these rules of law.

The principle behind birthright is the same as it was before and after the adoption of the 14th amendment: Only a citizen can make a citizen through the process of childbirth. Any other avenue to citizenship requires an act of naturalization under naturalization laws or perhaps, by treaty.

That seems to contradict what was said above, doesn’t it?
At least it gets a little more clear when talking about the equal protection of the law

And then we have the most influential man in Congress at the time, Thaddeus Stevens, Chairman of the Committee on Reconstruction, describing the meaning of equal protection of the laws this way: “Whatever law punishes a white man for a crime shall punish the black man precisely in the same way and to the same degree. Whatever law protects the white man shall afford “equal” protection to the black man.”

Perhaps one of Bingham’s best revelation on the subject came when he had this to say on the House floor defending his proposed Fourteenth Amendment:

[Your] Constitution provides that no man, no matter what his color, no matter beneath what sky he may have been born, no matter in what disastrous conflict or by what tyrannical hand his liberty may have been cloven down, no matter how poor, no matter how friendless, no matter how ignorant, shall be deprived of life or liberty or property without due process of law--law in its highest sense, that law which is the perfection of human reason,and which is impartial, equal and exact justice; that justice which requires that every man shall have his right; that justice which is the highest duty of nations as it is the imperishable attribute of the God of nations.

Simply put, Bingham is saying that all men are to be protected against arbitrary deprivation of their life, liberty or property with both due process of the law and equal justice.

So at least in this part, the cite didn’t contradict itself.
So much for the “simplified dummies guide” :rolleyes:

[matt_mcl]

In checking the edit history, it appears that the novel legal interpretation in the article referred to was added to the article by an anonymous contributor, and has since been removed, as commented upon on the talk page.

[SteveG1]

From the Wikipedia talk page:

[QUOTE=Wikipedia]
As it happens, the practice of giving citizenship to the native-born children of foreign nations is part of the common law and has been recognized since beofer the 14th amendment.
[/QUOTE]

Since both English and US law are largely based on Common Law (according to Thomas Jefferson), that tends to support the notion of citizenship by birth.

[magellan01]

[QUOTE=Random]
No. As has already been established, the wiki article is wrong.

I agree with your statement that the key question is the meaning of the above 14th Amendment clause. That is indeed what must be interpreted to resolve this issue. The point is, SCOTUS already answered the question. In 1898. Read the case. (I’ve linked to the opinion in a prior reply.)

A thousand citations to advocacy sites cannot change this.
[/QUOTE]

Sorry, I meant to reply to this, then got caught up with other stuff and forgot about it.

Anyway, what is your point? Are you arguing what the the interpretation of the law IS? I’m sure we’ll be in complete agreement to that from both a legal and practical standpoint.

My point is that that was not the intent of the law. And it should not be interpreted the way it currently is.

[Paul_in_Qatar]

So, if there was validity to this concept at all, my 70-uear-old ‘anchor baby’ USMC veteran Mother could be sent to (some darn place)? Nope. Ain’t going to happen.

[magellan01]

[QUOTE=Paul in Saudi]
So, if there was validity to this concept at all, my 70-uear-old ‘anchor baby’ USMC veteran Mother could be sent to (some darn place)? Nope. Ain’t going to happen.
[/QUOTE]

Uhhhh…what? Validity to what concept, the misinterpreatation of the 14th Amendment? And how does this apply to your 70-year-old mother, or the fact that she is a USMC veteran(?) ? Are you thinking that the correct interpreation, if applied, would be retroactive?

[Paul_in_Qatar]

The concept that persons born to foreigners in the US (as dear old Mom was) might not be Americans. I fail to see how it could not be retroactive. If a court were to rule a child born next year would not be a citizen, it follows that one born last year could no be a citizen.

So my Mom would not be a citizen. (And if she were not, I suppose I would not.)

[magellan01]

[QUOTE=Paul in Saudi]
The concept that persons born to foreigners in the US (as dear old Mom was) might not be Americans. I fail to see how it could not be retroactive. If a court were to rule a child born next year would not be a citizen, it follows that one born last year could no be a citizen.

So my Mom would not be a citizen. (And if she were not, I suppose I would not.)
[/QUOTE]

Laws are often passed with effective dates attached. Also, in any law they can grant exceptions and “grandfather” in pretty much anything they want. So, rest easy, even if the law is changed, it’s not going to have an effect your mother or you.