Interpreting the Fourteenth in the Context of Chinese Birth Tourism

 

shutterstock_73473043Amendment XIV: 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.

“Anchor babies” and “birth-right citizenship” have been the topic of a great many of our political discussions lately — when we’re not talking about Donald Trump. Though we tend to concentrate on illegal immigration from Latin America — and the ethics and legality of deporting entire families once some of their children have been “born American” — This completely ignores another part of the “birth-right citizenship” phenomenon.

Denver talk-radio host and freelance columnist Mike Rosen has long articulated the most convincing interpretation of the Fourteenth Amendment in the context of Chinese “birth tourism.” From his 2011 Denver Post column on Birth Rights and Wrongs:

Unlike illegal immigrants who cross our southern border, these pregnant Chinese women don’t enter our country illegally. They come on tourist visas, stay for a few months and then most go home to China with their newborns who have the option of returning someday as full-fledged American citizens, entitled to all the rights and benefits that includes.

Right now, today, there are “American citizens” being raised in China, by Chinese parents, speaking only Chinese, effectively as Chinese citizens, due to this senseless misinterpretation of an amendment intended to confer rights and immunities to freed slaves who, significantly, had never known any other national affiliation. More from Rosen:

The amendment was written in 1866 following the Civil War and ratified in 1868. In addition to punishing the confederate rebellion, it was intended to abolish the legacy of slavery. Section 1 effectively granted citizenship and all constitutional protections to former slaves “born or naturalized in the United States, and subject to the jurisdiction thereof.” That key phrase doesn’t mean subject to our laws; it refers to persons who owe no allegiance to another country [emphasis mine]. That is, who were not citizens of another country or children of citizens of another country.

Consistent with that precise intent, the same Congress that wrote the 14th Amendment passed a civil rights law, also in 1866, restricting American citizenship to those born here “and not subject to any foreign power.” Rep. John Bingham of Ohio, the author of the 14th Amendment, confirmed “that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”

Citizenship isn’t a matter of the geographical location of one’s birth place. It’s a matter of allegiance. The babies of Latin American illegals have no more right to American citizenship than the babies of Chinese tourists. The current interpretation of the Fourteenth Amendment is inane.

Published in Domestic Policy, Foreign Policy, Politics
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  1. Jules PA Inactive
    Jules PA
    @JulesPA

    Western Chauvinist: Citizenship isn’t a matter of the geographical location of one’s birth place. It’s a matter of allegiance. The babies of Latin American illegals have no more right to American citizenship than the babies of Chinese tourists. The current interpretation of the Fourteenth Amendment is inane.

    yup.

    • #1
  2. captainpower Inactive
    captainpower
    @captainpower

    see also

    http://ricochet.com/ted-cruz-on-birthright-citizenship/

    • #2
  3. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    captainpower:see also

    http://ricochet.com/ted-cruz-on-birthright-citizenship/

    Clearly Cruz is wrong on “birth right citizenship wouldn’t be a problem if we just secured the border.” Unless he thinks Chinese tourism babies are legitimately “citizens” after being raised (exclusively) in China by Chinese parents.

    BTW, I looked it up. China doesn’t allow for dual-citizenship. Not sure how that works out for the tourism babies.

    • #3
  4. jetstream Inactive
    jetstream
    @jetstream

    The author of the 14th amendment agrees with Western on the meaning of the amendment. It’s amusing to observe liberals, lefties, and the GOPe (is that repetitive) claim the author of the amendment lacks the intellectual sophistication to understand the words he wrote.

    • #4
  5. James Madison Member
    James Madison
    @JamesMadison

    Wasn’t this already litigated by the Supreme Court in a case involving a child born to Chinese railroad workers in the 1860’s-70’s who emigrated back to China returned to the US asking for entry as a US citizen?

    Now, the facts are not clear to me, but if the Chinese parents of this 19th century child were here legally, it might offer a distinction with a difference.

    But, if a child is born here to Chinese railroad construction workers over 150 years ago and it was decided that the child was a US citizen, then maybe this is over?

    Also I heard John Yoo and David Rivkin address this – they were adamant.  The 14th Amendment is clear and these children have the option of American citizenship. 

    The 14th Amendment is laced with many issues that were never clearly resolved.  The overriding matter was the need for the radical Republicans to integrate slaves into the United States with full protections.  But, the side effects and wording have led to expansions of many protections that might not have been intended.

    Not sure.

    • #5
  6. EThompson Inactive
    EThompson
    @EThompson

    I approve of  Swedish nationality law.

    We no longer live in the early 20th century when the U.S. simply needed bodies to do the grunt work; we need high info, highly educated immigrants that can hit the ground running and contribute to our economy at once.

    • #6
  7. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    James Madison:Wasn’t this already litigated by the Supreme Court in a case involving a child born to Chinese railroad workers in the 1860′s-70′s who emigrated back to China returned to the US asking for entry as a US citizen?

    Now, the facts are not clear to me, but if the Chinese parents of this 19th century child were here legally, it might offer a distinction with a difference.

    But, if a child is born here to Chinese railroad construction workers over 150 years ago and it was decided that the child was a US citizen, then maybe this is over?

    Also I heard John Yoo and David Rivkin address this – they were adamant. The 14th Amendment is clear and these children have the option of American citizenship.

    The 14th Amendment is laced with many issues that were never clearly resolved. The overriding matter was the need for the radical Republicans to integrate slaves into the United States with full protections. But, the side effects and wording have led to expansions of many protections that might not have been intended.

    Not sure.

    Is this true, then, for the children of diplomats on assignment in the US when they’re born? Clearly not.

    Yes, I’m sure the SCOTUS has established legal precedent if Messrs. Yoo, Rivkin, and Cruz say so (I don’t pretend to be a lawyer), but legal precedent has been known to be wrong. I think it clearly is, in this case.

    • #7
  8. Jojo Inactive
    Jojo
    @TheDowagerJojo

    This NPR article says birth tourism accounts for about 36,000 births a year, and births to illegal immigrants number about 340,000 per year.   SO there is an order of magnitude difference.

    I agree it makes sense in neither case to make the baby a citizen.

    The comments to the linked article start with crowing that Rubio and Jindal were both anchor babies, so there.  Really?  I doubt their parents were here illegally or under false pretenses.

    There are people here on work visas or student visas who have children and that situation is less clear cut.

    • #8
  9. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Jojo: The comments to the linked article start with crowing that Rubio and Jindal were both anchor babies, so there.  Really?  I doubt their parents were here illegally or under false pretenses.

    Yes, but I do think, under a strict interpretation, they have a problem with presidential eligibility if they were born to non-citizens — not “natural born.” I’m pretty sure Jindal’s parents became citizens shortly after he was born. I’m less informed about Rubio’s situation. Anyone know?

    • #9
  10. The Cloaked Gaijin Member
    The Cloaked Gaijin
    @TheCloakedGaijin

    Russia too.

    New generations of U.S. citizens are growing up in Russia. They are the result of birth tourism, a growing trend among Russians keen both to ensure their child has coveted U.S. citizenship and to make use of the country’s vaunted private medical care.

    “If previously, our clients were mostly very wealthy families, today the middle class is actively making use of our services,” said Vera Muzyka, head of Status-Med, one of the companies that exists to help Russian moms-to-be give birth to little Americans.  The number of women from Russia and the CIS giving birth in the U.S. is growing every year.  With a U.S. passport, the child will be able to study and work in the U.S.  Everyone realizes that U.S. citizenship gives a child great opportunities in the long run.

    Would Jeb Bush also call this an act of love?

    In Russia an “older mother” is someone who is 26 years old and they are made to stay in the hospital for almost half the pregnancy?

    …the official position of the U.S. Embassy in Moscow is that medical tourism, including giving birth in the U.S., is not illegal.

    http://www.themoscowtimes.com/news/article/russian-women-flock-to-miami-to-give-birth-to-us-citizens-video/498066.html

    • #10
  11. Jules PA Inactive
    Jules PA
    @JulesPA

    Western Chauvinist: China doesn’t allow for dual-citizenship. Not sure how that works out for the tourism babies.

    Well, depending on how many tourism babies there are, it works out great if Chinese families have a long-term plan to send their tourism babies back to quickly change the demographics of the US…

    • #11
  12. Jules PA Inactive
    Jules PA
    @JulesPA

    James Madison: 19th century child were here legally,

    19th century legal and 21st century legal seem to be two different things?

    James Madison: option of American citizenship.

    option of American Citizenship…at majority? or as a minor?

    so, we clearly have a standard now that provides permission for welcome guests, and nothing for those who invade without permission.

    does the future option to be a citizen demand that your parent(s) remain on behalf of your “birthright,” even though the parent(s) violated the legitimate legal standard for entry?

    • #12
  13. Bob W Member
    Bob W
    @WBob

    Like so many other parts of the early Constitution, the authors were not careful with the words they chose. They didnt think them through, being consumed only with the specific issues before them at the time. Who would have written that excessive fines can’t be imposed…without defining what an excessive fine is? It’s essentially a meaningless tautology: fines that are too high to be imposed shall not be imposed. And the requirement that just compensation be paid for a taking by the government probably was intended to mean: private property may be taken only for public use, and just compensation must be paid… But it doesn’t say that and syntactically doesn’t mean that. It does not actually say that property may only be taken for public use. There are other examples, such as the second amendment. So now we’re stuck debating idiotic legal premises that no one would have ever agreed to if it had been specifically proposed. The surprising thing is that there are so many people who actually want the idiotic interpretation to prevail, from the Wall Street Journal editorial board to every liberal Democrat.

    • #13
  14. Jules PA Inactive
    Jules PA
    @JulesPA

    Jojo: There are people here on work visas or student visas who have children and that situation is less clear cut.

    Why is there no clarification on the visas…babies happen.

    Unless the mom is a subscriber to Planned Parenthood Revoke Your Humanity rule…

    • #14
  15. Jules PA Inactive
    Jules PA
    @JulesPA

    The Cloaked Gaijin: New generations of U.S. citizens are growing up in Russia.

    Let’s be honest…does it matter what the country of origin is?

    Tourism Babies and Anchor Babies are not good for what ails us right now…they create negative incentives.

    • #15
  16. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Bob W: The surprising thing is that there are so many people who actually want the idiotic interpretation to prevail, from the Wall Street Journal editorial board to every liberal Democrat.

    And that’s how we get a country overrun with socialists. People with no heritage in or allegiance to American republicanism and capitalism. As someone said, “adios America!”

    • #16
  17. The Cloaked Gaijin Member
    The Cloaked Gaijin
    @TheCloakedGaijin

    I think people forget that one of the reasons that the issue is so important now is because of the huge federal welfare state.

    It’s like saying that those who supported in the 14th Amendment in the 1860s after the recent shock of having 600,000 people or 2% of the population killed were thinking about voting to bankrupt the country for future generations.

    • #17
  18. Jules PA Inactive
    Jules PA
    @JulesPA

    The Cloaked Gaijin: Status-Med, one of the companies that exists to help Russian moms-to-be give birth to little Americans.

    great. entrepreneur.

    not great. taking advantage of our fuzzy words.

    • #18
  19. Jules PA Inactive
    Jules PA
    @JulesPA

    The Cloaked Gaijin: …the official position of the U.S. Embassy in Moscow is that medical tourism, including giving birth in the U.S., is not illegal.

    omg. we get what we deserve.

    • #19
  20. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Jules PA:

    The Cloaked Gaijin: New generations of U.S. citizens are growing up in Russia.

    Let’s be honest…does it matter what the country of origin is?

    Tourism Babies and Anchor Babies are not good for what ails us right now…they create negative incentives.

    Right, I don’t think it matters (except a lot of the countries engaging in birth tourism are communist). But, it’s important we expose the irrationality of it.

    • #20
  21. James Madison Member
    James Madison
    @JamesMadison

    Western Chauvinist:

    Is this true, then, for the children of diplomats on assignment in the US when they’re born? Clearly not.

    Yes, I’m sure the SCOTUS has established legal precedent if Mssrs. Yoo, Rivkin, and Cruz say so (I don’t pretend to be a lawyer), but legal precedent has been known to be wrong. I think it clearly is, in this case.

    1. Diplomats are covered in the 14th Amendment language – jurisdiction clause.

    2. Legal Precedent can be wrong.  But harder to overturn with time.

    3. Trump Analysis:

    Scope: How many children?  How much cost?  How prevalent?

    Cost:

    Cost to support the babies under SCHIP, SNAP, welfare, …

    What can be done? Executive Order, Law or Amendment?

    Success of Legal challenge?

    Ginsberg Court Decision (Roberts stepped down two years ago) likely favorable?

    Don’t know the answers to these questions.  300,000 or 3 million.  What is the true social cost of supporting them.  Political power to effect changes.  Court process – friendly judges, Justice Department, Congress.

    Retro-active action is difficult to see. Pro-active possible – especially for child citizenship tourism.

     

    • #21
  22. Jules PA Inactive
    Jules PA
    @JulesPA

    Western Chauvinist:

    Jules PA:

    The Cloaked Gaijin: New generations of U.S. citizens are growing up in Russia.

    Let’s be honest…does it matter what the country of origin is?

    Tourism Babies and Anchor Babies are not good for what ails us right now…they create negative incentives.

    Right, I don’t think it matters (except a lot of the countries engaging in birth tourism are communist). But, it’s important we expose the irrationality of it.

    agreed, but for many of us, the immigration issues are not about origins, but about the principle of adhering to the law.

    I would hate it, but if we are going to let this country effectively function as open borders, then get rid of all the laws and the bureaucracy  that supports the currently ignored immigration law.

    The only thing I hate more than lawbreakers are laws that are ignored by the people who wrote them. :)

    • #22
  23. EHerring Coolidge
    EHerring
    @EHerring

    It wasn’t the intent of the 14th to grant citizenship and thus reward illegal entry into the country.  Congress should assert its power to control immigration and clarify the wording of the 14th.  It is totally illogical to assume that Congress intended to give up its enumerated power in this area and make the illegal immigrant mothers the arbiter of who will be a citizen.

    Are illegals and green card holders subject to the jurisdiction of the US?  Can they be forced to register for selective service and be drafted into military service?  No.

    • #23
  24. Tuck Inactive
    Tuck
    @Tuck

    jetstream: The author of the 14th amendment agrees with Western on the meaning of the amendment.

    No, he doesn’t.  We discuss just this issue in the Ted Cruz thread on this same topic.

    He says only those who are diplomats are excluded…

    • #24
  25. Tuck Inactive
    Tuck
    @Tuck

    EHerring: It is totally illogical to assume that Congress intended to give up its enumerated power in this area and make the illegal immigrant mothers the arbiter of who will be a citizen.

    You should really go read the debates, then.  They discussed exactly this issue, of Chinese immigrants who were forbidden from getting citizenship at that time.

    It was expressly stated that it would allow their children to become citizens.

    The Senator who clarified that lost his seat as a result and moved out of his state.

    But it’s the law of the land.

    P.S. I agree that it’s a crazy policy to have in the 21st century…

    • #25
  26. Tuck Inactive
    Tuck
    @Tuck

    So I think the way to change this would be to change the definition of the word jurisdiction, which comes from the common law.

    Congress has the power to change common law, it’s not bound by it.

    So if Congress passes a law that states that illegal aliens and their children born in the US are not under the jurisdiction of the US, and are to be deported immediately upon discovery, that would exclude them from the birthright citizenship.

    It would be interesting to see how long it would take for that to get to the Supreme Court and what they would do with it.

    But it would reduce the incentive to try for birthright citizenship in the interim.

    • #26
  27. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Tuck:

    jetstream: The author of the 14th amendment agrees with Western on the meaning of the amendment.

    No, he doesn’t. We discuss just this issue in the Ted Cruz thread on this same topic.

    He says only those who are diplomats are excluded…

    What am I missing? I don’t think that Cruz video from 2011 explains anything. He asserts that the arguments against birth right citizenship are flawed, but he gives no explanation as to why.

    How do you explain the quote from Bingham?

    “that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”

    Presumably Chinese and Mexican citizens (whether here legally or illegally) are foreign nationals who owe allegiance to their respective nations. Therefore, their children born within US boundaries have no automatic right to American citizenship.

    I’m not talking the practical politics of the matter. I’m just interested in the principles upon which citizenship is conferred.

    • #27
  28. Tuck Inactive
    Tuck
    @Tuck

    Western Chauvinist: How do you explain the quote from Bingham? “that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”

    Rosen states Bingham was the author of the 14th amendment, which is not true, as it was written by a committee.

    Another member of that committee also discussed the matter:

    “This 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, but will include every other class of persons.”

    Illegal aliens are not diplomats, so they’re “every other class of persons.”

    That’s the definition of allegiance that’s been used in interpreting the 14th…

    “I’m not talking the practical politics of the matter. I’m just interested in the principles upon which citizenship is conferred.”

    Yeah, me too.  I started with, “this is nuts, this can’t be right”, and then started reading.

    I still think it’s nuts, but it’s the correct interpretation.

    They had a discussion about unwanted immigrants, and the people who wanted to have the ability to exclude them lost the vote.

    • #28
  29. EHerring Coolidge
    EHerring
    @EHerring

    This isn’t a case of being denied for race, black, yellow, Middle Eastern, Chinese, etc.  Rather, we are discussing legal vs illegal.

    • #29
  30. Western Chauvinist Member
    Western Chauvinist
    @WesternChauvinist

    Tuck: Another member of that committee also discussed the matter: “This 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, but will include every other class of persons.”

    I think it’s still possible — likely, even — they were thinking of freed slaves as “every other class of persons.”

    These were not stupid people. I can’t believe they intended for either anchor babies or tourism babies as the means by which citizenship was conferred.

    Do you have other readings from the period that support the geographical birth-right position?

    • #30
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