Birthright Citizenship and the 14th Amendment

It appears that the GOP -- with the help of the Tea Parties, Sarah Palin, Glenn Beck, and the Devil -- is out to revise the 14th Amendment to the point of meaninglessness. Maybe even write the amendment out of the Constitution itself -- if not discard the Constitution completely. And all so that poor foreign newborns, who have never hurt a fly, won't be awarded with free American citizenship upon first seeing the light of day. Makes you sick, doesn't it?

At least that's how the legacy media, along with various immigration activists and liberal politicians, have chosen to play it.

The question, of course, involves anchor babies (AKA "jackpot babies"), infants born to illegal immigrants in the certainty that, under the "natural-born citizenship" clause of the 14th Amendment, their status as American citizens, with all rights and privileges pertaining thereto, will enable their families, lo, even unto the third cousins, to maintain residence in the U.S. unmolested by immigration or other law enforcement.

Illegal immigration has developed into one of those controversies that parcel themselves out piece by piece rather than all at once, a factor that gives the immigration controversy its never-ending-saga quality. Anchor babies are the latest installment. At first glance, it's not the kind of thing that anyone thinks of as a problem. How many could there be, after all? A few thousand? But this is overlooking the fact that anchor babies constitute one of the few true loopholes in American immigration law. The actual numbers beggar belief. The Pew Hispanic Center estimates that 340,000 of the 4.3 million infants born in the U.S. in 2008 were children of illegals. That number was matched if not exceeded in 2009. Something on the order of 8% of all children born in American hospitals can be classed as anchor babies. Of course, this percentage varies from region to region. In some Texas hospitals, up to 80% of the maternity patients are illegals.

This isn't a problem -- it's a crisis. It's not surprising that it's arisen at this particular point of the debate. The real question is why it didn't come up years ago.

The clause the illegals are taking advantage of appears as part of the 14th Amendment, one of the most important amendments ever added to the Constitution, its purpose to guarantee that the freed slaves would not be cheated of their birthright as Americans. The passage in question, Section 1, reads:  

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.

This appears straightforward. The problem arises with the introductory phrase, "All persons born or naturalized in the United States ... are citizens of the United States and of the state wherein they reside," which has been interpreted to mean that any individual born in the U.S. under any circumstances is automatically an American citizen. This was never the intention, as is made clear by the application of the amendment in the years since. American Indians were not considered to be citizens under the 14th Amendment, since they owed a higher allegiance to their tribes (today, Indians are considered to be something along the lines of dual citizens). Similarly, the offspring of foreign diplomatic officials are not considered to be American.

The case law concerning birthright citizenship is mixed. The Slaughterhouse Cases, decided by the Supreme Court shortly after the 14th Amendment was ratified in 1868, held that birthright citizenship did have exceptions. But in the 1898 case U.S. v. Wong Kim Ark,  the Court decided that a man born of immigrant parents could under some circumstances be considered a citizen. Although the court did not state that "all" children born in the U.S. were citizens, and in truth strongly implied otherwise, the majestic simplemindedness of the law established precisely that conclusion as common usage.

In recent years, several attempts have been made to plug this loophole. In 2009, Rep. Nathan Deal, (R-GA) introduced the Birthright Citizenship Act, which would have restricted citizenship to children born to citizens and legal immigrants. The bill suffered the fate you'd expect in the Obama Congress. This year, the midterm election cycle revived the question, with senators John Kyl (R-AZ), Mitch McConnell (R-KY), Lindsey Graham (R-SC), and Tom Coburn (R-OK) promising hearings into the matter for the next session.

Enter the media. With the rise of birthright citizenship as an issue, we've witnessed a transformation of media and left-wing gadflies from knee-jerk constitutional relativists to strict textualists of a purity to impress even Antonin Scalia and Clarence Thomas. One example is Jonathan Allen of Politico, who wants us to know that "[t]he Republican Party was for the 14th Amendment before its members started turning against it." It seems that the RNC features the text of the amendment on its web site as one of the party's great achievements. According to Allen, the fact that some Republicans wish to examine one phrase of the amendment renders the entire GOP back to 1868 an army of hypocrites. By this logic, anyone in favor of any amendment to the Constitution deserves to be barred from public life. (Allen recently spent time as a political flack for Debbie Wasserman Schultz, a Florida Democrat and one of the party's prime wackos -- she worked to have Christian crosses banned from government buildings, supports direct financial payments to the Palestinian Authority, and was one of the loudest congressional voices calling for Terry Schiavo to be put to sleep -- before deciding that he was at heart a reporter, and not just that, but a "politically independent" one. Got it.)

The Los Angeles Times tells us that "... some Americans hold a fringe view and would deny citizenship to those whose parents entered this country illegally. That idea so violates our history and law that it has long been consigned to the periphery ..." Unlike the legalization of marijuana or gay marriage, both of which are supported by the Times and thus are obviously not fringe views. Keep in mind -- LA is in California.

According to Morgan Smith of the Texas Tribune, "No single document does more to warm the cockles of the Republican heart than the Constitution. Yet of late, the Texas GOP has evinced a special disdain for a particular constitutional amendment: The 14th, which contains the birthright citizenship provision." Difficult to tell whether she's being sarcastic about the GOP or the Constitution, isn't it? She's obviously unaware of that Republican website venerating the old 14th. She needs to talk to Jonathan Allen right away.

Mary Sanchez at the Kansas City Star is shocked, deeply shocked, to learn that there's politics going on, and in an election year, no less: "Election year scripts are pretty well established in American politics. For Republicans, the script usually involves a polarizing issue, invariably some imagined threat to the nation or its traditional values ... This year they've gone for broke with a proposal to revise the U.S. Constitution. Several leading members of Congress are pushing the idea of hearings to discuss gutting all or part of the 14th Amendment." That "gutting" is a nice touch. Sanchez deserves a Pulitzer for that alone.

But it would be difficult to top Maria Elena Salinas' "Leave Babies out of Debate on Immigration": "Now the new target is babies. Yes, babies. A group of prominent Republican lawmakers is proposing repealing parts of the 14th Amendment, which grants citizenship to all persons born in the United States." Don't you understand? Can't you see? Those Republicans are after little babies. And puppy dogs. And butterflies. And snail darters!

There's not much in the way of actual argument amid all the hysteria, innuendo, and fantasy. Morgan Smith insists that we'll need a huge bureaucracy to handle infant IDs after the amendment is "repealed." (Exactly like the huge bureaucracy we had before Wong was decided, I suppose. And since when did liberals object to huge bureaucracies?) There's also a contention that the anchor baby loophole isn't drawing people across the border at all. It seems that a child of illegals would have to "declare" his parents on reaching age 21, after which they'd be required to leave the country for as much as ten years and then return. But of course, it doesn't work that way. What illegals are hoping for -- and what they get, in most cases -- is leniency from the authorities on producing an American-born child. Nobody would willingly separate a family under such circumstances, Maria Salinas to the contrary.

But of course, they don't need arguments, because arguments, facts, and debate are beside the point. These articles were written as a form of well-poisoning. They are designed to make a topic so radioactive as to render it untouchable. Once this is assured, the progressive left wins by default, with no opposition, only a line of empty shoes that the Lindsey Grahams of the nation have kicked off in order to run away faster.

This has been attempted many a time, and it has worked many a time -- with gay rights, Islamic activities, and much of the Green agenda, all of which are off limits as far as any meaningful debate goes. But it may not work in this case.

It may not work because the immigration debate is not media-driven, or politician-driven. It is voter-driven. Left up to the media and pols, it would never have come up. Quite the contrary -- both would work together to stuff the country full of foreigners for their own purposes, as has occurred in the U.K. and much of Europe. But that's not what's happening here. What we've seen over the past few years is the emergence of immigration as a quality-of-life issue. It's the sort of issue that, like inflation, or crime, or education, simply doesn't go away. Public concern has forced serious behavioral changes on such trimmers as John McCain and Lindsey Graham. It is no longer something they can dodge. Nor is it something that the media can manipulate, any more than it could manipulate the national crime wave of a generation ago. Voters will allow themselves to be fooled as long as it involves something that does not affect them directly. But when it does, there is nothing much for the "opinion leaders" to do but go along. And illegal immigration affects everyone directly.

It is very likely that the anchor baby question will end up in the courts. It's also quite likely that the current interpretation will be overturned. Because there's yet another phrase in the 14th that illegal supporters have overlooked. (Much the same as they overlook the second half of the Establishment Clause: ..."or prohibiting the free exercise thereof." When's the last time you heard that quoted in arguments over freedom of religion?) That's the line reading "...and subject to the jurisdiction thereof." It's that phrase that assures that the children of diplomats, POWs, and foreign criminals in U.S. custody are not given the benefit of citizenship. Simply put, they don't qualify because they retain allegiance to their native countries. It logically works the same way for illegals. It will take some time for this overlooked passage to unwind at last, but unwind it will.

I predict that when it does, the media -- including the above parties -- won't like it any better than they do now. This is the second time in as many weeks that circumstances have enabled the American left to pose as protectors of Constitutional values. The other is, of course, the Ground Zero victory mosque, concerning which the same people who have driven American children out of schools for the crime of praying have struck bold postures in favor of freedom of religion. In both cases, they have discovered their newfound love of strict intentionalism in support not of their fellow citizens, but of foreigners -- foreigners who are utilizing American law and custom to get away with something. People who are abusing both the Constitution and the principles on which it is based.

One thing for certain: if next week, a situation evolves in which it would benefit the American left and its backers in the media to toss the Constitution into the nearest dumpster, we can be sure they'd do so without a second's hesitation. We might wish for a little consistency -- but that would be asking too much.

J.R. Dunn is consulting editor of American Thinker and will edit the forthcoming Military Thinker. 
He is the author of Death by Liberalism