In light of the on-going acrimonious debate surrounding border security and illegal immigration in this country, it is perhaps not surprising that the 14th amendment of the Constitution has now been drawn into the fray.
The contentious issue involving the 14th are the so called “anchor babies.” Children of illegal immigrants who are born in this country, and therefore given citizenship automatically based on the 14th amendment.
The applicable clause in the 14th states: “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.”
To be sure, the amendment, enacted at the conclusion of the American Civil War, was passed with the intent of ensuring that newly freed slaves could never again be denied citizenship. It essentially overturned the infamous judgment made by the Supreme Court in the Dred Scott decision before the Civil War. In that decision, the court ruled that people of African descent imported into the United States were not protected by the Constitution and were not eligible for American citizenship. This was to be true whether those in question had been slaves, or were the descendants of slaves.
During the debate about the 14th, Senator Jacob Howard of Michigan, the author of the “citizenship Clause,” argued that it did not cover “persons born in the United States who are foreigners, aliens, or who belong to the families of ambassadors or foreign ministers.” Other Senators disagreed, but regardless, the verbiage is fairly conclusive.
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, leaves little for those in opposition to birth citizenship to work with.
Regardless of original intent, the Supreme Court further settled the matter in 1898. The court ruled in United States v. Wong Kim Ark that children born in the United States to foreign parents were indeed citizens of the United States. The only exceptions made were children born to those in the country employed in a diplomatic capacity by a foreign power.
The fact is, until the Supreme Court decides to take the matter up again and reverse over a century of precedent, the argument that children born of illegal immigrants do not have U.S. citizenship is constitutionally absurd.
And the odd thing is that the proponents of the argument against birth citizenship tend to be those who assert a very strict interpretation of what is and is not allowed by the Constitution.
Though normally quite reverential about the literal text of the document, they strangely do not afford the 14th amendment that same privilege.