Now even the New York Times is reporting on the phenomenon of “anchor babies” or “birthright citizenship,” where women come to the United States to give birth so that their babies can claim automatic citizenship under the first sentence of the first section of the 14th Amendment. The story reports on a home in San Gabriel, California which housed expectant Chinese women who paid $9,000 to $14,000 to come to the US to give birth. Another sch establishment is a lovely little hotel in Manhattan which caters to Turkish mothers-to-be (it even provides strollers). All these babies will be able to claim a US passport and open entrance into the US and, when they turn 21, will be able to apply for US residency for their parents (hence the term ‘anchor’ baby).
The constitutional language in question states that “all persons born … in the United States, and subject to the jurisdiction thereof” are citizens. It was included in the 14th Amendment as a last minute afterthought to overrule the Dred Scott decision and assure that the freed slaves would be citizens. Some are arguing that the “subject to the jurisdiction thereof” language should allow Congress to exclude anchor babies by statute, but that argument does not seem to be gaining much traction. Many others have argued for the repeal of this section of the 14th Amendment all together. Then Congress clearly could deal with the issue by statute under its power to “establish an uniform Rule of Naturalization.” The problem here is that the hurdles to constitutional amendment are tremendously high.
Therefore, as long as we’re looking at amending the first section of the 14th Amendment, what we really need to do is look at the second sentence of the first section as well. This is the sentence which contains the “due process” and “equal protection” phrases which federal courts have used as an open-ended license to rewrite the Constitution in accordance with their personal policy preferences. It is under these phrases that federal courts dictate to state and local governments on police and a host of other local matters, it is these phrases that federal judges have expanded to include not only race discrimination but any other privileged group which the judges deem to be entitled to special protection, it is these phrases which gave us Roe v. Wade and the Perry v. Schwarzenegger decision in California which will mandate gay marriage throughout the United States if it prevails in the Supreme Court.
A blog post is not the place to detail the innumerable judicial abuses of the 14th Amendment. Instead, let’s focus on the solution, which is to amend the first section of the 14th Amendment to restore its original meaning. That original meaning was only to ban governmental race discrimination. The great originalist constitutional scholar Lino Graglia of UT has long argued for this, and I lay it out in detail in my book Timely Renewed: Amendments to Restore the American Constitution. In the process we could also remove the now misused first sentence. But, more importantly, we could remove two dangerously vague phrases which have empowered an unchecked elitist judiciary to impose its social values on America by judicial fiat. That is worth the effort of amending the Constitution. For more, please see http://www.timelyrenewed.com.