Weigh Anchor! Enforce the Citizenship Clause

VDARE.com comments: Get ready to hear more about amnesty (or whatever they're calling it now) when Mexico's Fox visits America's Bush next week. Already the Bush Administration's admission that it intends to connive at the continued colonization of the United States by contemplating another, bigger, amnesty, has caused muttering amongst the American peasantry. It has even been necessary to call out the guard dogs, such as the Wall Street Journal's Paul Gigot, to snarl the serfs back into appropriate subservience.

But it is crucial to realize that in reality amnesty is already being granted in slow motion - merely by the reconquistas and their peers being permitted to live and have children here. This is because of a wrong-headed interpretation of the 14^th Amendment. As Howard Sutherland explains below, no such interpretation was ever intended by the Reconstruction Congress.

Because any baby born in America is deemed currently to have an absolute right to American citizenship, his parents, siblings, and ultimately his extended family obtain an enormously enhanced ability to be here. 'Family Reunification,' rather than skill sets, and sentimentalism rather than self-interest, being the themes of immigration policy, this "Anchor Baby" effect rips a huge chasm in effective immigration control.

Fixing this flaw deserves utmost priority. No responsible political leader could consider an amnesty otherwise. Could they?

The problem could be eliminated either by sensible judges, if such items exist, or by Act of Congress. A Constitutional amendment is not required. Political will is.

This is probably the most serious article that VDARE has published.. But, hey, it's a long weekend. And we figure, the great glory of the Internet is that it can handle any level of seriousness. We offer it as a resource. Bookmark for future reference!

By Howard Sutherland

One simple reform would end a powerful incentive luring would-be illegal aliens from around the world to the United States: adjust the currently tortured interpretation of the right to citizenship expressed in the 14^th Amendment. Absurdly, current federal policy is to confer American citizenship automatically on any child (with very narrow exceptions, none applicable to illegal aliens) born within the United States. The legal status of the parents is deemed irrelevant. We must accept that a baby born to foreign parents five minutes after they crept over the border illegally is just as American as a baby whose parents are both Americans and U.S. citizens and whose ancestors have been here 350 years.

This new "American" is not the end of the story, either. The U.S.-born child becomes an anchor in American soil that will permit his parents and minor siblings to remain and, later, his grandparents, aunts, uncles, in-laws and all of their children to immigrate legally, not to mention any friends and acquaintances from home who may follow them illegally. All of their children born here will also be considered American citizens. Neither the Census Bureau nor the INS can say how many aliens have availed themselves of this gift already. We can only be sure that many millions more will also, unless Americans end it.

This perversion of American citizenship, commonly called "birthright citizenship," is the result of the federal government and judiciary's willful misinterpretation of the Citizenship Clause of the 14^th Amendment to the U.S. Constitution.[i] In truth, the Citizenship Clause confers nothing so broad. The plain language of the 14^th Amendment does not grant automatic birthright citizenship. A review of the Senate debate before the 14^th Amendment's ratification makes clear that the Citizenship Clause's proponents were careful to preclude any automatic grant of citizenship based only on birth within the territory of the United States.

Some legal theorists, along with those who favor unrestricted immigration, argue that only another amendment to the Constitution would be constitutionally adequate to end automatic birthright citizenship. That is wrong. All we need do is read (and enforce) the Citizenship Clause as written. Legislation to enforce the limits inherent in the Citizenship Clause is well within the Congress' constitutional power. As the 14^th Amendment itself explicitly states: "The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."[ii]

The Citizenship Clause of the Fourteenth Amendment

The first sentence of the 14^th Amendment says: 

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. [emphasis added]

To hold that the Citizenship Clause confers birthright citizenship on anyone born in the United States is to ignore the phrase "and subject to the jurisdiction thereof": a selective misreading of plain English. No argument rooted in the Constitution can support automatic birthright citizenship. The only question is how broadly to read the jurisdiction phrase in the Citizenship Clause. Logic, assisted by the Senate floor debate, answers this. The U.S. Supreme Court has since clouded the picture with its relatively few rulings on the Citizenship Clause, but despite what we are often encouraged to believe by some justices and law professors, the Constitution does not mean only what the Supreme Court says it does. Even so, the Court has never held that the Citizenship Clause automatically confers U.S. citizenship on all children born within the territory of the United States.

The Ratification Debate

The 14^th Amendment, ratified on July 9, 1868, is the second of the three Reconstruction amendments to the Constitution ratified in the years immediately following Union victory in the War Between the States. A primary concern of the amendment's proponents was the extension of civil rights to recently freed slaves. Senators feared that state legislatures would assert that, not having been born U.S. citizens, emancipation did not make freedmen citizens of their states (hence of the United States; state citizenship was a prerequisite to U.S. citizenship). To forestall any denial of citizenship to freed blacks and to overturn the Dred Scott decision[iii] explicitly, the 14^th Amendment's proponents introduced the Citizenship Clause.

Nevertheless, they were well aware that a blanket grant of birthright citizenship was not consistent with American tradition and could lead to a demographic transformation in the event of high immigration. To prevent it, the senators included the jurisdiction phrase. The floor debate[iv] reveals their concerns and their views of how far birthright citizenship should extend.

Introducing the proposed amendment, Senator Jacob Merritt Howard of Michigan stated that he believed the Citizenship Clause was "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 and national law, a citizen of the United States." He went on to say specifically whom he considered that natural and national law excluded:

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 only, tenuous, way to read Senator Howard's statement to support birthright citizenship for the children of illegal aliens or, indeed, most legally resident aliens is to assume that the only foreigners or aliens he meant are those belonging to the families of diplomats. The simpler reading is to construe the sentence as what it is: a list of excluded categories.

Senator James Doolittle of Wisconsin was troubled by Howard's language, not because he wanted to find a way to include any foreigners or aliens, but because he wanted to ensure that American Indians remained excluded. Howard (and, ultimately, the Senate) thought Doolittle's proposed clarification unnecessary. As Howard pointed out:

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. They are regarded, and always have been in our legislation and jurisprudence, as being quasi-foreign nations. 

It is, or should be, clear that language denying citizenship to people born within the United States on the theory that they were subject to 'quasi-foreign nations' must exclude the children of people who have broken this country's laws in entering it, and whose whole allegiance is to entirely foreign nations.

Senator Edgar Cowan of Pennsylvania spoke at length about the limits of citizenship and the rights of states (and, by extension, the federal government: senators in 1866 still acknowledged that the powers of the federal government were those expressly delegated to it by the states in the Constitution) to control who may enter from abroad:

[A foreigner in the United States] has a right to the protection of the laws; but he is not a citizen in the ordinary acceptance of the word.

It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power. … I have supposed … that it was essential to the existence of society itself, and particularly essential to the existence of a free State, that it should have the power, not only of declaring who should exercise political power within its boundaries, but that if it were overrun by another and a different race, it would have the right to absolutely expel them.

I do not know that there is any danger to many of the States in this Union; but is it proposed that the people of California are to remain quiescent while they are overrun by a flood of immigration…? Are they to be immigrated out of house and home by Chinese? I should think not. It is not supposed that the people of California, in a broad and general sense, have any higher rights than the people of China; but they are in possession of the Country of California, and if another people, of different religion, of different manners, of different traditions, different tastes and sympathies are to come there and have the free right to locate there and settle among them, and if they have an opportunity of pouring in such an immigration as in a short time will double or treble the population of California, I ask, are the people of California powerless to protect themselves? … As I understand the rights of the States under the Constitution at present, California has the right, if she deems it proper, to forbid the entrance into her territory of any person she choose who is not a citizen of some one of the United States. 

His terms might seem impolitic today. But what Senator Cowan would think of the current interpretation of the Citizenship Clause is clear. Cowan took pains to point out that he was not denying the human or civil rights of foreigners generally; his concern was with their relation to the United States:

I wish to be understood that I consider those people to have rights just the same as we have, but not rights in connection with our Government. If I desire the exercise of my rights, I ought to go to my own people, people of the same beliefs and traditions, and not thrust myself in upon a society of other men entirely different in all those respects from myself. I would not claim that right. 

The notion that an accident of geographic location at birth could confer U.S. citizenship on someone whose family had no prior connection to the United States, no attachment to America other than presence on its soil at that moment, was utterly alien to Senator Cowan and his colleagues. What Senator Cowan would think of the Mexican government's recent demands of the United States with respect to the millions of its citizens now in the United States illegally (blanket amnesty plus guest-worker programs; Spanish-language schooling at American taxpayer expense; full access to all American social welfare programs, again at American taxpayer expense) is equally clear.

Senator John Conness of California, an Irish immigrant himself, was less worried than Cowan about the disruptive potential of birthright citizenship. Speaking of the Chinese of his day, he said:

[I]t is only in exceptional cases that they have children in our State; and therefore the alarming aspect of this provision to California, or any other land to which the Chinese may come as immigrants, is simply a fiction in the brains of persons who deprecate it, and that alone. 

Cowan seems to have been a better prophet than Conness. Could Conness have foreseen the Mexican (and Chinese) population explosion of the Twentieth Century and the attendant demographic pressure on California and the rest of the country, he probably would not have been so sanguine.

The Senate expanded its debate of "subject to the jurisdiction thereof" in the context of American Indians. Most Indians were people present (and bearing children) within the United States who had never been considered citizens, because generally they were not considered subject to the jurisdiction of any state; Indians who had become assimilated (and become taxpayers) in a state were considered citizens. Senator Doolittle emphasized the weighty consequences of granting citizenship:

[C] itizenship, if conferred, carries with it, as a matter of course, the rights, the responsibilities, the duties, the immunities, the privileges of citizens, for that is the very purpose of this constitutional amendment to extend. … [I]n the Constitution as [the Founding Fathers] adopted it they excluded the Indians who are not taxed; not enumerate them, indeed, as part of the population upon which they based representation and taxation; much less did they make them citizens of the United States. 

Doolittle was especially concerned to ensure that the citizenship clause not be read to confer citizenship on Indians, even those on reservations receiving food from the War Department and, in his view, to that limited extent subject to the jurisdiction of the United States. In response, Senator Lyman Trumbull of Illinois, the Chairman of the Judiciary Committee, dismissed any notion that the Citizenship Clause could be read that way:

[I]t is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that "all persons born in the United States, and subject to the jurisdiction thereof, are citizens." That means "subject to the complete jurisdiction thereof." [emphasis added] Now does the Senator from Wisconsin pretend to say that the Navajo Indians are subject to the complete jurisdiction of the United States? By no means. We make treaties with them. … It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government [by which Trumbull means his tribe] that he is "subject to the jurisdiction of the United States." … It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens. [emphasis in original] 

Senator Reverdy Johnson of Maryland (the lone Democrat among the Senators quoted; all the others were Republicans in this Reconstruction Senate) was less certain than his colleagues that the proposed amendment clearly excluded Indians not taxed, but wished to clarify how American citizenship was created. He accepted that birthright citizenship for the children of U.S. citizens was natural and the appropriate norm, but worried that the proposed amendment might be read too broadly:

Now, all this amendment provides is, that all persons born in the United States and not subject to some foreign power – for that, no doubt, is the meaning of the committee who have brought the matter before us – shall be considered as citizens of the United States. … I am, however, by no m