Citizenship and ‘Anchor Babies’
By John R. Stoeffler
Illegal aliens apprehended by law enforcement are under the law subject to deportation. On the other hand, a baby born to illegal aliens while on U.S. soil is automatically a citizen. But the story shouldn’t, must not end there. Unlike other illegals, parents of these children are normally granted instant residency allowing them to remain anchored in the country. Thus, the genesis for the euphemism “Anchor Babies.” This descriptive term sticks in the craw of many parents of “Anchor Babies” who qualify for a smorgasbord of welfare benefits, including free medical care courtesy of the American taxpayer.
Seeking to address the issue of instant citizenship, legislation was introduced in Congress thirteen years ago that sought to amend the Immigration and Nationality Act by denying citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens. Typical of the many proposals that sought to address the issue of “Anchor Babies” was House Joint Resolution 698 introduced in 2005 by then Congressman, now Georgia Governor, Nathan Deal.
HJR 698 sought to forbid citizenship to any child born in the United States unless at least one of the parents is either a citizen or an alien who has been admitted for permanent residence. That same stipulation would also have been applicable to children born out of wedlock.
While many applauded Congressman Deal’s legislation others suggested that it might be unconstitutional. They pointed to what appeared to be the unambiguous language of the Constitution’s Fourteenth Amendment to make their case. The relevant part of that amendment states: “All persons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States.”
On the other hand, others point to the words “subject to the jurisdiction thereof” to make the case that the framers clearly provided an exception to what appears to be a carte blanche command.
Writing in the Harvard Journal of Law & Public Policy, 465 (1999) Charles Wood observes that while the meaning of the Citizenship Clause is not clear on its face, “the clause certainly provides that some persons born in the United States are not citizens, namely those who at birth are not ‘subject to’ the jurisdiction of the Unites States” such as diplomats and foreign ministers of other nations who have legal or factual immunity from local law.In proposing the definition of citizenship for the Fourteenth Amendment in 1866 U.S. Sen. Jacob M. Howard, (R-MI), stated that his definition reflected “English common law principles governing birthright citizenship.”
In crafting the Fourteenth Amendment’s Citizenship Clause, the framers noted that to be born a British subject, a person had to be born “within the allegiance,” meaning that there was a duty of allegiance, including obedience, on the part of the person born on British soil. Exceptions also included persons born on British soil to diplomats and those “born to a foreign military force occupying the British territory where the birth took place.”
Most relevant to our current situation vis-à-vis illegal aliens is the point made by Mr. Wood wherein he noted that “in the common law the allegiance of the parents were imputed to the child born on the sovereign’s territory.” In other words, if there were no allegiance to the United States by the newborn’s parents, the same would be said of the child. Thus no citizenship would be recognized even if the child was born on American soil. This issue and salient questions pertaining to the illegal aliens and citizenship need to be addressed.Then-Congressman Deal’s legislation should be a model of what needs to be done as the issue of illegal aliens is being debated today. His model legislation should be introduced in the House, be debated, and a vote taken by Congress. If it should pass and later be declared unconstitutional then a constitutional amendment should be pursued until ratification by the states is achieved. The question of citizenship is an integral part of the illegal immigration dilemma facing our nation.