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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.

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. (Section 1)

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

"jurisdiction" did not mean simply subject to the laws of the United States or subject to the jurisdiction of its courts. Rather, "jurisdiction" meant exclusive "allegiance" to the United States. Not all who were subject to the laws owed allegiance to the United States. As Senator Howard[, the clause's author,] 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." (The Heritage Guide to the Constitution, pp. 382-85.)

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:

• In an 1884 case, Elk v. Wilkins, the US Supreme Court found that a Native American (then called an Indian) did not become a US citizen simply by renouncing his allegiance to his tribe (nation). The Court said that neither the tribes, nor their individual members, no more than "other foreigners," can "become citizens of their own will." (Perhaps this suggests that one does not become a citizen by avoiding the established process for doing so?)
• In 1898 in United States vs. Wong Kim Ark, the Court found that a child born in the United States of legal immigrants was a citizen. The question of the status of a child born of illegal immigrations was not before the Court in this case. (It seems reasonable to suppose that legal immigrants are "subject to the jurisdiction [of the US]" in a way in which illegal immigrants are not.)
• In Plyler v. Doe (1982) and INS v. Rios-Pineda (1985), the Court assumed birthright citizenship for the babies of parents in the country illegally, but did not definitively declare it to be the meaning of the clause.
• A 1997 attempt in Congress to prevent the children of illegal immigrants from receiving automatic citizenship was defeated by political opposition, not adjudicated by the Court.

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.

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