The fight over ‘birthright citizenship’ continues

December 27, 2005

Slowly but surely, the conservative drive to deny citizenship to babies born in the United States to illegal immigrant parents is generating widespread media attention. Whereas the proposal was initially fascinating only to conservative news outlets, now even the AP is covering the story.

With more than 70 co-sponsors, Georgia Republican Rep. Nathan Deal tried to include a revocation of birthright citizenship in an immigration bill passed by the House in mid-December. GOP House leaders did not let the proposal come to a vote.

“Most Americans feel it doesn’t make any sense for people to come into the country illegally, give birth and have a new U.S. citizen,” said Ira Mehlman of the Federation of American Immigration Reform, which backs Deal’s proposal. “But the advocates for illegal immigrants will make a fuss; they’ll claim you’re punishing the children, and I suspect the leadership doesn’t want to deal with that.”

At least as far as political analysis goes, this sounds about right. GOP leaders saw no upside to holding a vote on this, but the fact that 77 House Republicans — about a third of the House GOP caucus — were willing to put their names on the idea suggests ending “birthright citizenship” is a measure that’s catching on in conservative circles.

In a practical sense, this fight over what some on the right call “anchor babies” seems like a lost cause. The 14th Amendment to the Constitution says that those “born…in the United States” are “citizens of the United States.” For that matter, the Supreme Court ruled in 1898 that a baby born in San Francisco to Chinese immigrants was legally a U.S. citizen, even though federal law at the time denied citizenship to people from China. The court said birth in the United States constituted “a sufficient and complete right to citizenship.” House Republicans may think a provision in an immigration bill can get around all of this, but I’m not sure what they’re basing their confidence on.

I’m also intrigued by the underlying point advocates for ending birthright citizenship are making with their proposal. Under existing law, children of illegal immigrants can sponsor their parents for legal permanent residency once they become adults. For lawmakers like Tom Tancredo, this means couples have an incentive to get into the U.S. illegally in order to have a baby, who can then help them establish residency nearly two decades later.

Does anyone know how often this actually happens? I can appreciate long-term thinking, but realistically, how many families are sneaking into the country to give birth in 2005 as part of a residency plan for 2023?

The Constitution also says that “Congress shall make no law respecting an establishment of religion, or prohibiting the free exercise thereof; or abridging the freedom of speech…,” but Congress (and the states, to which the First Amendment applies via the Fourteenth) makes laws abridging the freedom of speech (or “respecting” an “establishment” of religion, whatever that means) all the time, pursuant to the intricate rules established by the Supreme Court. Thus, the apparently clear language regarding citizenship may well be vulnerable to some restrictive judicial interpretation as well (the “activist judge” phenomenon from the other political angle).

Try as I might, I just can’t get too upset about this. Maybe it’s a silly, nonexistent problem along the lines of flag burning that the right is trying to milk for cheap political advantage, but the “anchor baby” doctrine does appear to be an unintended loophole in the Constitution, and I see nothing wrong in principle with trying to fix it.

  • Mr. Dillon: there is no “loophole” for an “anchor baby” to save his/her parents 18 years later. I can’t believe someone intelligent enough to find the Carpetbagger Report would be dumb enough to believe anything a Republican says on any subject (if they say it’s Tuesday, look at your calendar). Just remember: “Republican, a synonym for moron.”

  • Sneaking a pregnant woman into the country to give birth would be stressful on the woman & her pregnancy. Makes no difference how far along her pregnancy may be. The crossing is stressful, and the first few months afterwards are also stressful (we are talking about very poor people here).

    Two immigrants shaking up to create a baby that might give them citizenship in 2025 might seem like a good idea, but, again, mommy & daddy are both poor & illegal & that’s still stressful & such relationships, whether formal or not, don’t always last that long. And if they split, their offspring typically bounces along on the very bottom of society & rarely amounts to anything respectable.

    Another right-wing illusion, but a very durable one. I heard the same nonsense a quarter-century ago when I lived (illegally) in London.

  • Tom,

    I don’t think that the ad hominem tone in your post was necessary.
    Moreover, I don’t quite understand the basis of your assertion that the constitutional loophole does not exist; regardless of how frequently, if ever, it is actually taken advantage of (and, as I noted in my first post, I don’t doubt that the right wing is greatly exaggerating the extent of the problem for the sake of scoring cheap points with the Minutemen crowd), there’s no question that the law as it currently stands does in fact allow for this kind of bootstrapped legal residency, which I seriously doubt was intended by the framers of the Constitution. Unlike, say, the proposed flag-burning or gay marriage amendments, where I would argue that there is in fact no “problem” to be redressed at all and that the Republicans’ proposed “solution” would cause a great deal of harm, it seems to me that in this case, there is in fact a gap in the law that perhaps should be closed. Whether this is the sort of thing that Congress should be spending its time debating is another matter altogether, and it seems to me that there are plenty of more pressing issues that should be occupying its attention at the moment.

  • James, why do you claim it’s a “constitutional loophole”? Do you have proof of the intent of the authors of the 14th Amendment? Something more than just “serious doubt”?

    Seeing that the amendment deals with post-Civil War issues, my take on the intent of the authors was to ensure citizenship to all ex-slaves and their descendants, making sure no state denied citizenship.

    I’d say they had good reason to formulate the amendment as they did.

  • Alopex,

    By “loophole” I mean an unintended or unforeseen consequence of the text of the amendment. Of course I don’t have proof of the intent of the authors of the 14th amendment (insofar as a legislative body can ever be said to have a single intent when adopting a statute or amendment, a premise I find dubious), but I agree with you that it probably had something to do with assuring the rights and privileges of citizenship to former slaves and their descendants. Since illegal, first-generation immigrants are in an entirely different situation than former slaves, doesn’t an interpretation of the 14th amendment that grants citizenship to the children of those immigrants on the basis of their having been born on U.S. soil seem like an unintended consequence? If this is the case, then, once again, I see nothing wrong with correcting that unforeseen conequence with a legislative patch, and I think that a court could reasonably uphold that statute as consistent with the apparent intent of the Constitution.

  • Since illegal, first-generation immigrants are in an entirely different situation than former slaves, doesn’t an interpretation of the 14th amendment that grants citizenship to the children of those immigrants on the basis of their having been born on U.S. soil seem like an unintended consequence?

    at the time the 14th Amendment was added, there was no such thing as “illegal” immigration, was there? With the exception of the exclusion of the Chinese, didn’t we have an “open door” policy until the 20th century? And the issue of the exclusion of the Chinese and the citizenship rights of children born thereto were addressed by the Supreme Court. I would think that rather than the citizenship as birthright provisions of the 14th Amendment being an “unintended consequence”, that when the laws were re-written in the 20th century to restrict wholesale restrict immigration and put it into “legal” and “illegal” categories for the first time in our history, that this provision and consequence of the 14th Amendment both proceded the laws and were known to the drafters. It was most likely kept in place, regardless of this consequences precisely because it could only have been addressed by amending the Constitution rather by the statute which is how immigration policy was changed.

    Should this be a backdoor method of changing the Constitution now – pass a policy statute and then later argue that the Constitution needs to be changed or interpreted differently because it has “unintended consequences” that differ from or inhibit the statute? I’d prefer the Constitution to be more bedrock than that.

  • “Should this be a backdoor method of changing the Constitution now – pass a policy statute and then later argue that the Constitution needs to be changed or interpreted differently because it has “unintended consequences” that differ from or inhibit the statute? I’d prefer the Constitution to be more bedrock than that.”

    That raises a very interesting question, which I gestured toward in my first post on this subject. This is exactly the sort of objection that conservatives have been making when they complain about “activist” judges “legislating from the bench,” i.e., reinterpreting the Constitution to provide for measures that perhaps were never envisioned by the framers, and that probably could not be passed legislatively. While I think that a lot of social progress has come from that approach (e.g., Roe, Griswold, Eisenstadt, even Brown v. Board of Education), it does raise the question of how flexible one wants to be with constitutional interpretation. The “living Constitution” approach may help courts address (or arguably create) evolving social norms and expectations, but it can also give rise to a certain queasiness when courts take exceptional liberties with the underlying text for the sake of (their understanding of) the underlying policy or intent. Of course, a Scalian brand of “strict construction” is equally unpalatable, not to mention not really possible in the absence of self-delusion. The question is where one draws the necessarily arbitrary line.

  • The “living Constitution” approach may help courts address (or arguably create) evolving social norms and expectations, but it can also give rise to a certain queasiness when courts take exceptional liberties with the underlying text for the sake of (their understanding of) the underlying policy or intent.

    Interestingly, Mr Dillon, I look at it from the opposite viewpoint – rather than the courts being the problem, I see the problem resulting directly from legislative overreach. You characterize landmark cases relating to these issues as “measures that perhaps were never envisioned by the framers, and that probably could not be passed legislatively” – but whoever gave the legislators the right to tell consensual adults what they can and can’t do in the privacy of their own homes in the first place? Or in Roe, the right to decide what women can and can’t do with their bodies? Or in the case of Brown – the right to patently ignore the equal protection provisions of the Constitution? And when legislators so overreach, should we then necessarily bend the Constitution to accomodate them? Those who evidently believe in the primacy of the legislature regardless of the Constitution tend to characterize the issue as out-of-control judiciary rather than looking to the legislature as the problem. I see it the other way around. In the instant issue that we were discussing here, the 14th Amendment and “birthright citizenship” was on the books for over half a century before the immigration laws were changed which created the issue at hand. This constitutional principle was known and respected WHEN the immrigation laws were passed. It only seems to be now that the legislature wants to ignore the constitutional principle for policy and political reasons. Wouldn’t it be convenient for legislators to suddenly label the pre-existing constitutional principle as having “unintended consequences” and ignore it when it is being applied to policies that came into existence well after the clearly-stated Constitutional principle was adapted? To me, legislative restraint should dictate that the policy must accomodate the Constitution (which immigration policy re brithright citizenship has, until now) (and, as in the cases that you mentioned, should be viewed in terms of legislative overreach rather than judicial activism – no one gave the legislature the right to wholesale prohibit and criminalize private acts or ignore equal protection).. Once you start framing it using terms of “Judicial activism”, “when courts take exceptional liberties with the underlying text for the sake of (their understanding of) the underlying policy or intent”, “living Constitution” and “strict construction”, you are, to me, implicitly endorsing legislative overreach and instead veiwing it solely as an issue of judicial overreach when the courts finally get to review it.

    Unlike disputes such as the meaning the term “reasonable” when used in the Constitution, the 14th Amendment grants a pretty clearly defined right – “All persons born…in the United States… are citizens of the United States” – without mention of any exceptions. To me, any attempt to change this by statute, rather than by Amendment is clear legislative overreach. I find it almost mind-boggling that because that doesn’t accomodate a legislative policy formulated 140 years later that it is now being characterized as an “unintended consequence” and that you then further portray it as an out-of-control judicial rather than legislative issue. Do you not believe in any Constitutional restraints on the legislative power or is the problem solely the fault of those uppity judges “legislating from the bench” when they check and deny legislative overreach?

  • Andy,

    You raise some very interesting points. I suppose the fundamental question here is where the burden of proof lies as to the authority of the state and its interplay with the Constitution: does the State have the authority to legislate in any area, subject only to the limitations imposed upon that legislative authority by the Constitution (or the constitutions of the individual states), or are there zones of individual immunity untouchable by the state even in the absence of constitutional protection? One view might be that the government, simply by virtue of being the government, can impose whatever restrictions on behavior (including the private acts of consenting adults) that it pleases, unless specifically prohibited by the Constitution. Historically, the police power of the individual states (as opposed to the federal government, which derives its legislative authority from specifically enumerated powers provided by the Constitution) has been viewed as providing them broad authority to legislate in all areas not specifically protected by the federal or state constitutions. I suspect that the answer to your question, “whoever gave the legislators the right to tell consensual adults what they can and can’t do in the privacy of their own homes in the first place?,” is that We, the People of the United States, did, in exchange for the benefits of social and economic stability that come with the existence of a sovereign State.

    Your discussion of the individual cases (and the concept of “legislative overreach” in general) seems to beg the question at hand: whether the Constitution of the United States, properly interpreted, has anything at all to say about abortion, school segregation, or the use of contraceptives. Maybe it does, and I’m not arguing to the contrary, but if you take a look at Roe and Griswold you’ll see that the Court had to dig pretty deep into the penumbras of the enumerated rights to find the general right to privacy (or perhaps “autonomy” would be a better term, though I’m not sure that it’s used in either case) that protects the rights those cases identified. My point here is only that one person’s correction of legislative overreach is another person’s judicial activism, and one needn’t subscribe to the view of “legislative supremacy over the Constitution” (a straw man if I ever saw one) to recognize that these determinations are rarely, if ever, clear-cut.

    Regarding the issue of immigration and the contemplated statute restricting birth citizenship, I suppose, again, that it’s a matter of perspective. Would a Supreme Court decision finding such a statute constitutional be an “implicit endorsement of legislative overreach” or an “acknowledgment of evolving social and cultural conditions and a reaffirmation of the fundamental purpose of Section 1 of the Fourteenth Amendment”? You’re absolutely right that the Constitution does appear to speak in very specific terms here, but, as I pointed out in my first post, so does the First Amendment, yet courts have shown little reluctance to disregard the apparently absolutist language (“Congress shall make no law… abridging the freedom of speech, or of the press…”) in favor of a more nuanced approach that balances the competing interests at stake and strives to respect the (courts’ view of the) fundamental purpose of the free speech clause by setting up a hierarchy of more- and less-protected speech, with political speech being the most protected and obscenity receiving little or no constitutional protection at all.

    It would be a fascinating case to watch if this were to go to the Supreme Court, as various left-wing groups sided with Justices Scalia and Thomas in appealing to a strict, literal reading of the terms of the Constitution, without regard to underlying principles of the amendment or to its legislative history or apparent purpose. I also think this is a good warning to those well-intentioned progressives who might go too far down the Living Constitution path of philosophical or policy-based arguments in favor of expanded constitutional protection for various “fundamental” civil liberties. Once the “meaning” of the Constitution is more than mildly attenuated from its actual text, the risk of “activism” by ideologues on either side is greatly enhanced. (If that seems to contradict everything else I’ve said today, bear in mind that I don’t actually believe that the Republicans’ proposed legislation necessarily *should* be found constitutional; I only believe that, in light of much of the precedent developed by well-intentioned progressive Justices over the past 40ish years, there are certainly good arguments that it *could* be, and that, putting constitutionality aside for the moment, the legislation itself might not be such a bad thing).

  • Andy,

    Having thought about this a little further, I now see your point (somehow I didn’t get it earlier) that, since the Fourteenth Amendment was in place before the current immigration laws that created the status of “illegal immigrant” (and I am assuming that to be true; it was a surprise to me, but I’ll take your word for it), it doesn’t seem quite accurate to think of the citizenship-by-birth rule as a “loophole” in the sense of a quirk of the legal system that creates an incentive or opportunity to violate the spirit of the law while remaining in complaince with the letter (a better definition than the previous one I offered, but I’ll stick by the original if it makes a difference). Maybe that does change my mind about the likely constitutionality of the proposed legislation; I’ll have to think more about that before reaching a conclusion, but you’re right that it does seem odd to reinterpret a pre-existing constitutional standard in light of a subsequent legislative scheme. So I provisionally retract my earlier defense of the constitutionality of the Republicans’ proposed legislation, but stand by my discussion of methods of constitutional interpretation in general, and my feeling that the Republicans’ legislation (or a constitutional amendment to the same effect) might not be a bad thing.

  • Hey Guys,

    I’m not a constitutional scholar, but I’m pretty sure the “Anchor” phenomenon is not wrapped up in the constitution so much as it’s part of immigration laws. These two things seem to work in conjunction, but one does not have to be connected to the other.

    As far as I know if any US citizen “Sponsors” a foreign family member, they have a much better chance of getting Visas and Citizenship in the US.

    When you’ve got a fresh immigrant, lets say a Vietnamese who came to the states in 1975 when the US abandoned Indochina, those families where granted citizenship. And they had a LOT of family members who where dieing to get to the US.

    They had the ability to sponsor other family members to escape the VN gov’t. Being granted citizenship at birth + our Immigration laws seems to create this “Anchor Baby” issue. If you consider it a problem (which I don’t since Vietnamese are extremely productive immigrants) the solution is not changing the constitution but altering our Immigration laws regarding family member’s ability to Sponsor their foreign family members.

    I think the interesting part of this issue, is that these Xenophobe Republicans aren’t suggesting reasonable ways to fix our immigration policy, rather they’re going after the “Children Born in the US are Citizens” part of the Constitution. Obviously they’re never going to be able to ratify the constitution so this is a wedge issue that will just keep on giving.

    Cynical fucking bastards they are.

  • I cannot believe that people in the country I was born would be such stupid people and try to change a law stating children born in US born to ilegal immigrates are not citizens. Now that means every time one of us go to the hospital we are going to have to show proof of citizenship as if we belong to some prison within our own country. This is not going to stop ilegals coming into our country. they are going to come one way or another. We need to look at other ways to help with the problem than to change a law this big..There are other countries as mentioned that US gave citizenship to and now their own 100 family members are here. Why is it that people here hate the hispanics. They do all the work that the fucking Americans won’t do and they work…

  • But, first, they should reread the Citizenship Clause.

    Why is the phrase “and subject to the jurisdiction thereof” enclosed within a PAIR OF COMMAS, with the first comma placed before the coordinating conjunction “and”?

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