David Rodeback's Blog
Local Politics and Culture, National Politics,
Wednesday, June 16, 2010
Anchor Babies and the Fourteenth Amendment
Does Mike Lee's and Tim Bridgewater's advocacy of denying automatic US citizenship to "anchor babies" (children born in the US to parents who are in the country illegally) mean they're ignoring the Fourteenth Amendment to the US Constitution, as some suggest? A little investigation removes all certainty; it's just not that simple.
Eric Peterson at CityWeekly.net raises his issue rather snidely, but it's a good one. Both Republican candidates for the US Senate in Utah, Mike Lee and Tim Bridgewater, want to do away with the law which grants citizenship to babies born in the United States to aliens who are in the country illegally -- so-called "anchor babies." Peterson and, reportedly, Libertarian gubernatorial candidate Andrew McCullough take this to mean than neither of the avowed Republican constitutionalists cares for the Fourteenth Amendment.
To be sure, Peterson and McCullough have in mind just one sentence of the much longer Fourteenth Amendment; the whole thing runs more than four pages on my iPod Touch screen. So perhaps Lee and Bridgewater love nearly all of the Amendment, just not that one pesky sentence? Before we rush to judgment, let's look at that sentence.
It would be interesting to hear either Republican candidate's take on this question. One (Lee) is a constitutional expert, so his answer might be more interesting. I myself may not be an expert, but I thought I'd take a crack at it anyway, with the help of my books.
The Fourteenth Amendment was adopted shortly after the Civil War, along with the Thirteenth, which abolished slavery, and the Fifteenth, which protects citizens' voting rights from infringement on the grounds of "race, color, or previous condition of servitude." The clause of the Fourteenth Amendment which commands our attention here was necessary to override the infamous Dred Scott v. Sanford decision from before the war, in which the US Supreme Court declared that no person of African ancestry could be a US citizen. Other parts of the Fourteenth Amendment have been fertile ground for litigation; the Amendment protects the rights of US citizens from infringement by state governments, which previously were not limited by the Bill of Rights, for example. For that matter, it is from the Fourteenth Amendment that the fertile oxymoron "substantive due process" arose, leading to all manner of constitutional mischief in the 20th century. But back to our sentence . . .
Let us note that the sentence contains two requirements for citizenship, not one. Besides being born or naturalized in the United States, one must be "subject to the jurisdiction thereof." At the time, this was explicitly intended to exclude Native Americans "who maintain[ed] their tribal relations." More broadly, it was acknowledged that
At this point, one must concede, I think, that it might be reasonable to suppose that illegal immigrants, who are citizens of another nation, who live in an important sense outside the laws of the United States, and who demonstrate no "exclusive allegiance" to the United States, may not satisfy the "subject to the jurisdiction thereof" requirement. At least, there's room for doubt. But legislative intent is not everything; what about subsequent case law?
In truth, the case law I found in a brief search doesn't resolve the question either way. It touches related issues but does not directly bear on "anchor babies." To wit:
What the present US Supreme Court -- currently the most conservative branch of the US government -- would say about an attempt to repeal the "anchor baby" law, I cannot say. But it appears there is at least a case to be made that such a bill might be constitutional.
So perhaps Mike Lee and Tim Bridgewater don't hate the Fourteenth Amendment after all. Go figure.
Copyright 2010 by David Rodeback.