Not So Fast, Lindsey

By Richard L. Wolfe

A while back, Senator Lindsey Graham suggested that we pass a Constitutional Amendment to end the practice of granting automatic citizenship to “anchor babies”. Is Senator Graham starting to feel the heat from the “Tea Kettles”? Whether he is or isn’t, this is pure political pandering, nothing more and nothing less. He is smart enough to know that such an amendment would never make it out of Congress, let alone to the states; so what is he really trying to do? At first, Senator Graham was nothing more than an oddity or novelty from a Conservative state. Lately, he has really started to worry me with his support for amnesty for illegal aliens, Cap and Trade, and now this.

Senator Graham aside, let’s take a look at the “anchor baby” situation and the 14^th Amendment. Many in the media (including the Sun News), consider the term “anchor baby” to be pejorative. I disagree because I think that it is an apt description of how illegal aliens are using it to game the system. Well, doesn’t the 14^th Amendment guarantee that anyone who is born in the U.S. is automatically a citizen of the United States regardless of the status of the parents? Not exactly!

Anyone with even a cursory knowledge of American history knows that the 14^th Amendment was written for only one purpose: to grant citizenship and representation to the former slaves. It is only the lawyers and the courts that decided to exploit a loophole in the amendment to grant citizenship to babies born of illegal parents. The 14^th Amendment contains five sections, but the first and the fifth are the only ones that created the problem and hold the key to the solution. Therefore, I will only post those two in order to explain what I am talking about.

Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

It requires a little background information to understand the original intent of this amendment and how the lawyers were able to exploit it. First of all, at the time that this amendment was written (1866) and adopted (1868) there were no laws that limited immigration. However, the sponsors of the amendment made their intentions crystal clear. The author of the 14th Amendment Citizenship Clause, Senator Jacob M. Howard, stated, in reference to the Amendment, "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

In 1873, The United States Attorney General ruled the word "jurisdiction" under the 14th Amendment meant:

"The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them."

The most compelling argument that the 14^th was written solely for the purpose of granting citizenship to former slaves was the fact that it did not provide citizenship to Native Americans. A whole series of Supreme Court decisions were handed down dealing with citizenship for Native Americans. In the 1814 Elk v Wilkens decision, the phrase "subject to its jurisdiction" was interpreted to exclude "children of ministers, consuls, and citizens of foreign states born within the United States." In Elk, the American Indian claimant was not considered an American citizen because the law required him to be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance." In 1889, the Wong Kim Ark Supreme Court case once again, in a ruling based strictly on the 14^th Amendment, concluded that the status of the parents was crucial in determining the citizenship of the child. The current misinterpretation of the 14th Amendment is based in part upon the presumption that the Wong Kim Ark ruling encompassed illegal aliens. In fact, it did not address the children of illegal aliens and non-immigrant aliens, but rather determined an allegiance for legal immigrant parents based on the meaning of the word domicil(e). Since it is inconceivable that illegal alien parents could have a legal domicile in the United States, the ruling clearly did not extend birthright citizenship to children of illegal alien parents. Indeed, the ruling strengthened the original intent of the 14^th Amendment. The case is strengthened even further by the fact that Native Americans gained full citizenship by The Citizens Act of 1924.

Thus the 14^th Amendment was enacted solely for the purpose of granting citizenship and representation to the former slaves. This was the legal and correct interpretation of the 14^th Amendment until 1982 when an Activist Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that "no plausible distinction with respect to fourteenth amendment jurisdiction can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

This is why I included section 5 into this column. Since no Constitutional Amendment was required to grant citizenship to the Native Americans and no Constitutional Amendment was required for Justice Brennan to create a loophole by wrongly interpreting the 14^th Amendment, then no Constitutional Amendment is necessary to correct the Brennan loophole! This takes me back full circle to my original question as to why is Senator Graham talking about a Constitutional Amendment to the 14^th Amendment in the first place?

Senator Graham aside, let’s take a look at the “anchor baby” situation and the 14^th Amendment. Many in the media (including the Sun News), consider the term “anchor baby” to be pejorative. I disagree because I think that it is an apt description of how illegal aliens are using it to game the system. Well, doesn’t the 14^th Amendment guarantee that anyone who is born in the U.S. is automatically a citizen of the United States regardless of the status of the parents? Not exactly!

Anyone with even a cursory knowledge of American history knows that the 14^th Amendment was written for only one purpose: to grant citizenship and representation to the former slaves. It is only the lawyers and the courts that decided to exploit a loophole in the amendment to grant citizenship to babies born of illegal parents. The 14^th Amendment contains five sections, but the first and the fifth are the only ones that created the problem and hold the key to the solution. Therefore, I will only post those two in order to explain what I am talking about.

Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

It requires a little background information to understand the original intent of this amendment and how the lawyers were able to exploit it. First of all, at the time that this amendment was written (1866) and adopted (1868) there were no laws that limited immigration. However, the sponsors of the amendment made their intentions crystal clear. The author of the 14th Amendment Citizenship Clause, Senator Jacob M. Howard, stated, in reference to the Amendment, "This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the family of ambassadors, or foreign ministers accredited to the Government of the United States, but will include every other class of persons."

In 1873, The United States Attorney General ruled the word "jurisdiction" under the 14th Amendment meant:

"The word 'jurisdiction' must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment. Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them."

The most compelling argument that the 14^th was written solely for the purpose of granting citizenship to former slaves was the fact that it did not provide citizenship to Native Americans. A whole series of Supreme Court decisions were handed down dealing with citizenship for Native Americans. In the 1814 Elk v Wilkens decision, the phrase "subject to its jurisdiction" was interpreted to exclude "children of ministers, consuls, and citizens of foreign states born within the United States." In Elk, the American Indian claimant was not considered an American citizen because the law required him to be "not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance." In 1889, the Wong Kim Ark Supreme Court case once again, in a ruling based strictly on the 14^th Amendment, concluded that the status of the parents was crucial in determining the citizenship of the child. The current misinterpretation of the 14th Amendment is based in part upon the presumption that the Wong Kim Ark ruling encompassed illegal aliens. In fact, it did not address the children of illegal aliens and non-immigrant aliens, but rather determined an allegiance for legal immigrant parents based on the meaning of the word domicil(e). Since it is inconceivable that illegal alien parents could have a legal domicile in the United States, the ruling clearly did not extend birthright citizenship to children of illegal alien parents. Indeed, the ruling strengthened the original intent of the 14^th Amendment. The case is strengthened even further by the fact that Native Americans gained full citizenship by The Citizens Act of 1924.

Thus the 14^th Amendment was enacted solely for the purpose of granting citizenship and representation to the former slaves. This was the legal and correct interpretation of the 14^th Amendment until 1982 when an Activist Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that "no plausible distinction with respect to fourteenth amendment jurisdiction can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."

This is why I included section 5 into this column. Since no Constitutional Amendment was required to grant citizenship to the Native Americans and no Constitutional Amendment was required for Justice Brennan to create a loophole by wrongly interpreting the 14^th Amendment, then no Constitutional Amendment is necessary to correct the Brennan loophole! This takes me back full circle to my original question as to why is Senator Graham talking about a Constitutional Amendment to the 14^th Amendment in the first place?