The discourse on illegal immigration has grown quite contentious over the past several years. The Left accuses the Right of being xenophobic. The Right responds with logical legal arguments that illegal immigrants should use the proper legal process to reside in the US. The Left adamantly argues that illegal immigrants living in the US should be granted amnesty and immediately become citizens. The Left has a logical reason for their amnesty demands since the majority of illegal immigrants would likely vote Democrat. The Right’s logical argument is grounded in the rule of law whereas the Left’s arguments are grounded in political expediency and subsequent emotional claims.
An effective emotional argument that the left makes is that of birthright citizenship and anchor babies. The current interpretation of the citizenship clause of the Fourteenth Amendment automatically grants US citizenship upon children born in the US. Therefore, the Left argues, we should not separate a mother who’s in the US illegally from her US citizen child. The decent thing to do in such situations, the Left continues, would be to make the mother and father citizens as well.
The Left’s argument perpetuates the influx of illegal immigration and anchor babies. Certainly the Right doesn’t want to tear families apart and such cases would need to be evaluated to determine what is best for the families. There are things that the US can do, however, to curtail the anchor baby crisis and reduce the number of anchor families when we are finally ready to deal with this situation.
One way to eliminate the anchor baby dilemma would be to interpret the citizenship clause according to its original intent. The example above is not an accurate assessment of the original intent of the clause.
The citizenship clause 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.”
It is easy to misinterpret the citizenship clause if one does not know the context in which it was written. A contemporary reading of the clause leads one to believe that all babies born in the US should be granted immediate citizenship. However, this was not the intent of the author of the citizenship clause, Senator Jacob Howard of Ohio.
To understand the context of the Senator Howard’s citizenship clause, one must begin with the Dred Scott v. Sanford case of 1857. In Dred Scott v. Sanford, the Supreme Court decided that no black, freed or slave, could be a citizen of the US.
Just four years later the northern and southern states began the Civil War. The Civil War erupted over the question of slavery when the slave states of the south seceded from the US following the election of Republican Presidential Candidate Abraham Lincoln. Lincoln campaigned on limiting slavery to the southern states at a time when southern states supported the expansion of slavery.
After almost two years of fighting in January 1863, Lincoln issued the Emancipation Proclamation, which was an executive order that abolished slavery in all states in secession. The proclamation firmly entrenched the US in Lincoln’s position that slavery ought to be abolished and was a step to placate the position of border states that had not seceded but were sympathetic to the Confederacy.
In November 1863, Lincoln gave the Gettysburg Address. Lincoln’s words in the Gettysburg Address extolled the noble “proposition that all men are created equal” as he honored the men who fought and died on that hallowed battlefield for that notion of equality. The Civil War ended four years later in April 1865 when the Confederate Army surrendered.
Although hostilities concluded with the surrender of the Confederacy, tension between the north and south continued.
In January 1865, Congress proposed to end slavery via an amendment to the Constitution. Thus, with the ratification of the Thirteenth Amendment in December 1865 slavery was abolished and prevented under the Constitution.
Congress then passed The Civil Rights Act of 1866 which stated that, “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.
In 1868, Senator Howard wrote the citizenship clause of the Fourteenth Amendment to essentially add the Civil Rights Act to the Constitution. As a Constitutional amendment, the citizenship clause would remain a permanent amendment of the Constitution as it would be extremely difficult and unlikely that a hostile Congress could overturn it. The clause also made citizenship at the federal level superior to the state. Federal citizenship was crucial as no state could deny blacks citizenship.
Further, The Heritage Guide to the Constitution described that Senator Howard’s declaration that birthright citizenship was not automatic because one could not owe allegiance to another nation or tribe and be subject to the jurisdiction of the US. Senator Howard’s meaning of jurisdiction meant exclusive allegiance to the US as he remarked that allegiance “will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States.”
When viewed in context, one must surmise that the original intent of the Fourteenth Amendment was to grant citizenship to freed blacks following the ratification of the Thirteenth Amendment. The author of the citizenship clause did not intend for any person born on US soil to be granted birthright citizenship.
Thus, the Right has firm legal basis to deny birthright citizenship based on the original intent of the citizenship clause of the Fourteenth Amendment. Repealing the contemporary interpretation of the citizenship clause would be an essential step to fight illegal immigration.
