The Patriot Post® · The Anchor Baby Myth
The Constitution v Birthright Citizenship
“Born in other countries, yet believing you could be happy in this, our laws acknowledge, as they should do, your right to join us in society, conforming, as I doubt not you will do, to our established rules.” —Thomas Jefferson (1801)
There is a raging political debate about immigration in the U.S., or more specifically about the consequences of illegal immigration. Solutions have been hotly contested and evaded for decades.
In the current election cycle, Donald Trump has reignited that debate. Trump rightly states, “The U.S. has become a dumping ground for everybody else’s problems.” His mantra on the topic is, “They’ve got to go!”
Regardless of your opinion of Trump’s populist antics, making immigration a centerpiece of his presidential rhetoric has forced both Republicans and Democrats to clarify their positions on this issue — and not a minute too soon!
The current debate centers on whether or not to “repeal” birthright citizenship. But framing this argument with the word “repeal,” whether by legislation or constitutional amendment, implies that there is something in our Constitution or subsequent legislation that already affirms a right to birthright citizenship. No such provision exists, except as wholly misinterpreted by courts and propagated by politicians pandering for mostly Hispanic and Latino votes.
Note that in Jefferson’s words regarding immigration he specifies “our laws acknowledge … your right to join us” and the requirement that immigrants conform “to our established rules.”
But, as usual, “laws” and “rules” are now wholly ignored in favor of political expedience.
What law was Jefferson referencing? Before addressing the current immigration fiasco, let’s revisit some fundamental constitutional Rule of Law in regard to immigration.
Our Constitution references immigration only in Section 1 of Article Two, noting, “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President.” It was understood that “natural born” meant one born on U.S. soil prior to the enactment of our Constitution.
A year after our unanimously ratified Constitution superseded the Articles of Confederation, the term “natural born citizen” was defined in the first immigration legislation passed by Congress — the Naturalization Law of March 26, 1790.
Yes, defining legal immigration standards dates back to the earliest days of our Republic.
The 1790 Act stipulated immigrants had to be legal residents in the U.S. for two years prior to applying for citizenship. The Naturalization Act of 1795 superseded the Act of 1790 and required five years’ residence, and the Naturalization Act of 1798 increased that to 14 years’ residence.
That law also provided that “children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: provided, that the right of citizenship shall not descend to persons whose fathers have never been resident in the United States.” In other words, if born on foreign soil, you also were extended rights of citizenship if your father was an established American citizen.
Fast-forward to the end of the War Between the States. Though slaves were in the U.S. “legally,” and thus “subject to the jurisdiction thereof,” they had no post-war assurance of any rights as citizens, much less equal rights.
Thus, the Civil Rights Act of 1866 affirmed citizenship for former slaves. But out of concern that some future legislature would revoke those rights, members of the Senate proposed the 14th Amendment, and submitted it for ratification by the States.
Section 1 of the 14th Amendment codified the full citizenship rights of the Civil Rights Act of 1866, stipulating, “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.”
In a previous essay entitled Birthright Citizenship, I provided irrefutable evidence, in the very words of the 14th Amendment’s authors, that “subject to the jurisdiction thereof” clearly and plainly referred to those who were legal citizens. It did not and never has implied any legal standing for the children of illegal immigrants.
After World War II, there was a flood of illegal immigrants across our southern border. In 1954, Dwight Eisenhower launched “Operation Wetback,” and millions of those illegal aliens were rounded up and returned back to Mexico. Those deportations went on for almost a decade, until illegal immigration was reduced to a mere trickle.
But for the last three decades, illegal immigration has surged largely unabated.
There are now an estimated 11.3 million illegals in our country — notably, about 40% of whom arrived with legal visas but never left when their visas expired. More than eight million illegal immigrants hold jobs while more than nine million Americans are unemployed.
That notwithstanding, Barack Obama, in yet another violation of his Article II, Section 1, oath “to support and defend” our Constitution, has undermined enforcement of immigration laws in order to win the political support of ethnic groups associated with those who would otherwise be deported.
I have argued, however, that Obama’s amnesty proposals are mostly “smoke and mirrors,” because a larger and more critical Democrat constituency is composed of unionized workers and low-income Americans. The Left baits them with class warfare rhetoric centered on the issue of “living wages.” Illegal immigrants drive down “living wages.”
AFL-CIO President Richard Trumka says that, to win, the next Democrat presidential candidate must “run on a raising-wages agenda.” Allowing 10 million immigrants to compete for low-wage jobs is certainly not consistent with that agenda.
For evidence of Obama’s faux agenda, recall that in 2008 then president-elect Obama declared, “I can guarantee that we will have, in the first year, an immigration bill that I strongly support.” In 2009 and 2010, Obama’s Democratic Party controlled both the House and Senate, but his congressional Demos never passed an amnesty bill for him to sign.
Of course, a lot of the Republican promises about immigration have also been nothing more than smoke.
Today, conservatives are rightfully demanding meaningful immigration reform, which explains most of Trump’s grassroots appeal. Indeed, Beltway establishment types led by Speaker John Boehner and Senate Leader Mitch McConnell have produced nothing of substance to confront illegal immigration (unless you count the grand total of 36 miles of sufficient Mexican border fence that has been constructed).
The conservative debate centers on legitimate concerns about the burden of illegal immigrants, including the enormous cost of providing taxpayer-subsidized services (housing, schooling, medical care, incarceration), taking jobs from Americans, so-called “sanctuary cities” that, following Obama’s example, ignore federal laws, and the thriving drug, gang and violent crime surge being driven by illegal immigrants.
“Every single illegal alien that comes into the country [across the Mexican border] goes through the hands of a drug cartel,” notes agent Hector Garza, National Border Patrol Council president.
The murder of California native Kate Steinle in the “sanctuary city” of San Francisco by an illegal immigrant received substantial national attention. Her murderer had been released from jail by San Francisco authorities, after seven felony convictions and five deportations. San Francisco declared itself a safe haven for illegal immigrants in 1989 – but not so much for its citizens.
Kate Steinle’s murderer is only one of more than a million illegal aliens who have committed violent crimes, some 690,000 of whom were charged but have been released rather than deported and are now loose on the streets of more than 300 declared sanctuary cities.
Our nation is so far removed from Rule of Law as it pertains to immigration that the Supreme Court is taking up the absurd question of whether illegal immigrants can be counted when determining legislative districts. In another era, the most basic level of common sense would have concluded, “Hell no, of course not!”
Now comes word from the Pew Hispanic Center that four out of five children of illegal aliens were born in this country, and it’s now estimated that one out of 10 births in the U.S. are “anchor babies.”
Fact is, while a clear majority of Americans do not support birthright citizenship, what matters is that our Constitution doesn’t support it either.
So what to do? Make the case and solve the problem.
First, Republicans must advocate for and enact legislation affirming that the 14th Amendment makes no birthright allowance. Our Constitution’s Article 1, Section 8, Clause 4 gives Congress the power to determine qualifications for citizenship, and Section 5 of the 14th Amendment does likewise. Start by amending Section 301 of the Immigration and Nationality Act to clarify those classes of individuals born in the United States who are not eligible for citizenship by virtue of birth.
Second, Republicans must re-invigorate an E-Verify system at the point of employment with severe penalties for violation of the law. As National Review’s Rich Lowry notes, “You need an E-Verify system to choke off illegal immigration at the point of employment, and if you actually do that, then it doesn’t really matter what you have at the border.” But the biggest obstacle to E-Verify is that a lot of employers want the low-cost labor pool, and if that dries up, so will their political donations. But even if some accommodation is made for temporary work permits as a compromise, E-Verify must come first.
Third, secure our borders. Construct barriers in those areas that are known crossing points — and authorize Border Patrol agents to enforce the law. As Ronald Reagan declared, “A nation without borders is not a nation.”
Fourth, expel illegal immigrants immediately rather than release them under the laughable pretext that they will show up later for their “deportation hearings.” They obviously are not going to show up for those hearings.
And last, Republican politicos need to embrace and energetically promote the fact that Liberty is colorblind — it’s not just a “white thing.” Essential Liberty transcends all racial, ethnic, gender and class distinctions, and it will appeal to all freedom-loving people if Republicans will articulate that timeless message.
On a final note, witnessing Obama’s catastrophic humanitarian crisis in the Middle East — both its impact on Europe and the fact that Obama is now proposing to take in more Syrian immigrants on top of 250,000+ Islamic migrants who already come to the U.S. annually — should generate a sense of urgency for ending the ruinous fallout from birthright citizenship and illegal immigration.
Pro Deo et Constitutione — Libertas aut Mors
Semper Vigilans Fortis Paratus et Fidelis