The notion of birthright citizenship is rooted in the the language of the 14th Amendment. It 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.” The primary purpose of the Amendment itself was to overturn the Dred Scott decision.
The clause itself was the brainchild of Senator Jacob Howard or Michigan. During the Senate debate, Howard specifically stated that the clause applied to Indians since they had tribal allegiances and were not, therefore, “subject to the jurisdiction thereof.” As a result, many Senators signed on as supporters of the clause with the understanding that birthright citizenship would be extended except in the case of Indians. Today, that understanding in the Congressional record is used as support of birthright citizenship.
However, there is evidence in the record that indicates that the clause was meant exclusively for Indians and Indians only. The Amendment itself was designed to address the plight of newly freed slaves. In fact, the Supreme Court later decided that the Amendment did not, relying on the Congressional record, confer citizenship on Indians (which was later rectified by a 1925 law that granted them citizenship). That leads some people to conclude that if the government can grant citizenship upon a group of people, they likewise can deny citizenship to groups of people through legislative acts, not constitutional amendments.
The controlling Court decision is US v. Wong Kim Ark in 1898. Then, as now, the Court ruled that the person is a US citizen if they (1) are born in the United States, (2) of parents who, at the time of their birth, are subjects of a foreign power and (3) whose parents have a permanent domicile and residence in the US and (4) whose parents are here carrying on business and are not diplomats or serving in an official capacity for that foreign power. Under this definition, it is clear that babies born on US soil to immigrants- legal and illegal- are citizens of the United States. The Wong case was not directly related to the an interpretation of the citizenship clause and some have argued that the time is ripe for a direct assault on it. As an aside, Liberals have perverted the Conservative arguments in this area by stating that the Right wants to rescind the 14th Amendment in whole or part. This incendiary rhetoric only clouds the issue. No one wants to do that. However, it would be a good idea to determine whether conferring citizenship (or denying it) can be legislatively, or through an amendment.
The problem has presented itself in microcosm in the past. About 70% of the Canadian population lives within driving distance of the US border. Some Canadians opt to give birth in American hospitals and the parents voluntarily return to Canada after the birth. Technically, their children should be considered American citizens, but they are not for practical purposes. Today, it is estimated that 325,000 babies are born annually to illegal immigrants. Because hospitals are prohibited from inquiring of the legal status of parents, birth certificates must be granted. In effect, that birth certificate- issued by a government entity- confers citizenship upon that baby. But, does that certificate satisfy the “subject to the jurisdiction thereof” requirement? That is the million dollar question.
Actually, that 325,000 figure is a statistical analysis since absolute statistics are impossible to come by. Considering there are about 11 million illegal immigrants in the US, these children account for less than 3% of the illegal population. Of course, the costs associated with them are substantial, but largely localized. For example, close to 80% of all births in the San Joachin area of California are babies born to illegal immigrants. Parkland Hospital in Dallas is the nation’s second busiest maternity ward and 70% of those births are to illegal parents. However, in the overall sense, we are talking about less than 3% of the problem. Denial of citizenship, no matter how achieved, would solve exactly less than 3% of the problem.
These children are called “anchor babies.” Because they are technically American citizens and because immigration policy focuses on keeping families intact, some reason that illegal female immigrants migrate here to have their babies and thus,get citizenship for themselves. This idea is false on two grounds. Although one can probably come up with the odd exceptions to the rule, people migrate here for jobs, not to have babies. Second, “anchor babies” cannot petition the government for parental citizenship until they reach the age of 21. With all due respect to the Tancredophiles out there, there is no flood of pregnant women streaming over the border. However, there are benefits in that as American citizens, they are entitled to public assistance. And since current immigration policy centers on keeping nuclear families intact, action against the parents is generally lax. Perhaps a revision of visa and immigration laws with less emphasis on the “intact family” concept and greater emphasis on economic need is needed.
Another piece of misinformation needs to be cleared up. Some assert that the United States is the only country that recognizes birthright citizenship. That is false. We are the populous country that recognizes it. However, practically every country in the Western hemisphere, including Canada, recognize birthright citizenship and, in fact, we have entered into reciprocal agreements with the Canadian government over the issue. Outside the Western hemisphere, only Cambodia, Lesotho and Pakistan recognize it.
In the end, this debate is much ado about little- less than 3% of the illegal population (and 1% of the total population). Therefore, this nothing but a hot button issue that clouds the real problem. It is focusing on the trivial to solve the global. The effects are seen more locally rather than nationally. Since Obama has asserted that immigration is the exclusive province of the Federal government, then perhaps the Federal government should financially assist those localities with the associated costs. However, likewise Conservatives would be better served to drop this trivial issue in the immigration debate and move on to true and lasting reform. When they characterize the situation as an army of pregnant Mexican and Central American women charging across the border to give birth, they cheapen the arguments for real reform and make themselves, and the rational/realistic conservatives look ridiculous.