The Unconstitutional "Anchor Baby" Delusion

by BILL CONNOR August 27, 2015

anchor babies _ constitution.jpeg

"The United States have not recognized a double allegiance. By our law a citizen is bound to be ‘true and faithful' alone to our government."

- House Report No. 784, June 22, 1874

With the 2016 election heating up, many Americans are finding the opportunity to express anger over the nation's illegal immigration problems.

Donald Trump, a long-shot as a presidential candidate (having never held public office), shot to the top of the polls after making seemingly incendiary remarks about illegal immigrants. I write "seemingly" because many believe his statements to be blunt truth, even if politically incorrect.

In addition to allegations of criminals coming across the southern border from Mexico, Trump is now broaching a question long hidden in the recesses of debate: Does the Constitution grant birthright citizenship to all born within the geographic borders of the United States? This question directly ties to immigration, as the babies of illegal immigrants are being granted immediate citizenship, thereby "anchoring" residency and citizenship rights to family members. Hence the term "anchor baby". The numbers involved run into the millions, affect the nation in many ways, and cannot be overlooked. It's time to challenge the conventional wisdom of birthright citizenship. Let me explain.

The specific language of the citizenship clause of the 14th Amendment is the start point. Section 1, begins: "All persons born or naturalized in the United States." Stop at those nine words and birthright citizenship would appear to be the clear intent of the 14th Amendment. However, the clause continues: "and subject to the jurisdiction thereof, are citizens of the United States." It's important to understand that the drafters of the 14th Amendment crafted the 13th, 14th, and 15th Amendments to protect the rights of slaves/former slaves against any state or local jurisdiction, particularly from the old Confederacy.

The 13th Amendment ended slavery, the 14th Amendment ensured due process and equal protection for former slaves, and the 15th Amendment guaranteed former slaves the right to vote (against state and local government). Interestingly, Section 4 of the 14th Amendment specifically references slavery in that Congress would not be responsible for the debt for freed slaves. The intent was to protect the rights of former slaves, but did not apply to the children of aliens to the United States.

A great example of the narrow application of the citizenship clause can be seen with citizenship rights of American Indians. At the time of the 14th Amendment, and for decades thereafter, native Americans were not granted citizenship despite being born within the geographic boundaries of the United States. Congress, using the provisions of Section 5 of the 14th Amendment (The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article), and the Article 1, Section 8 (Congressional power over naturalization/immigration) finally granted citizenship to native Americans in the 1920s. Babies born to foreign Consuls, ministers, Ambassadors serving in the United States were not (and still are not), citizens, despite being born within the United States. Similarly, babies born to those illegally entering the United States remain citizens of the countries parents departed. The examples abound of the exceptions to birthright citizenship because it does not exist as a right. The Supreme Court has not yet ruled the children of illegal immigrants obtain birthright citizenship, though the Court has ruled on the citizenship of children whose parents were in the United States legally being naturalized.

The history of birthright citizenship provides perspective. The ancient and unjust feudal common law doctrine of birth citizenship or "Jus Soli" has a checkered past and is rightly on the ash heap of history. Jus Soli is accepted almost nowhere in the "modern" Western world due to the primitive and inhumane roots of the concept in medieval Europe. Going back the age of "divine right of Kings," Jus Soli granted the monarch the greatest number of "subjects" within his realm. Babies, who happened to have been born in the king's realm, were the legally required to "serve" the king as his subject for life, and could not leave the realm without the monarch's license.

"Subject to the jurisdiction thereof" was purposely inserted by Congress to prevent Jus Soli in America. Acclaimed lawyers Howard and Trumbull helped draft the 14th Amendment, and would have been familiar with Jus Soli. In fact, Representative Aaron Sargent from California argued, without dispute during the debates over the Naturalization Act of 1870, that the citizenship clause was not justification for aliens to obtain citizenship at birth. It's ironic that the same Liberals who oppose Western practices not in keeping with the norms of the modern Western world, like the death penalty, demand the United States recognize Jus Soli for babies of illegal immigrants.

It's time for Americans to call this out for what it is: unconstitutional.

Mark Levin, a Constitutional lawyer, president of the Landmark Legal Foundation, and former senior member of the Reagan administration has written convincingly on the subject: "If it [the 14th Amendment] means what the proponents of birthright citizenship say, it would stop right there. ‘All persons born or naturalized in the United States' are citizens. There's no need for anything else, but that's what it says. Then it says, and, ‘subject to the jurisdiction thereof.'... Jurisdiction has nothing to do with geography. Zero. It had to do with political allegiance to the United States of America. How do we know it? Because they (those drafting the 14th Amendment) said it ... Now here's the good news, there's another part of the Constitution. It's Article 1, Section 8, Clause 4. Here's what that says, in plain English; ‘The Congress shall have power to ... establish a uniform rule of naturalization.' ... that means Congress, not the courts, not the president, not ICE, it means the United States Congress has the power to regulate immigration in this regard."

The Congressional and historic record make clear that the legal concept of birthright citizenship, used by countless aliens to gain U.S. citizenship through anchor babies, is both wrong and unconstitutional.

The American people demand, through spokesmen like Donald Trump, that we cannot continue to ignore the importance of legitimate citizenship. It is time for Congress to follow the will of the people and the Constitutional duties under Article 1, Section 8 and Section 5 of the 14th Amendment. Citizenship in the United States is something special bequeathed to us by those who followed the law. It's about time we started following the law, and the truth of the Constitution.

Bill Connor is a S.C.-based attorney and decorated U.S. Army Reserve infantry officer, Ranger (Airborne), an expert in counterinsurgency combat and a founding partner of National Defense Consultants, LLC. He is a former senior U.S. military advisor in Helmand Province, Afghanistan.


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