Ricochet is the best place on the internet to discuss the issues of the day, either through commenting on posts or writing your own for our active and dynamic community in a fully moderated environment. In addition, the Ricochet Audio Network offers over 50 original podcasts with new episodes released every day.
Interpreting the Fourteenth in the Context of Chinese Birth Tourism
Amendment 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
There are 535 members of Congress presently, and thousands of their staff members, and somehow this huge group of people, many of whom are lawyers, are unable to fix this law that is clearly not working?
A child should be the nationality of his or her parents. Period.
That sentence took me all of ten seconds to type out.
Geesh.
And can grow up to be President of the United States.
What a country…..
Insane.
FIFY
Why? The parents are here on a visa, which means they are here on a temporary basis.
Why shouldn’t their children be as well. If they are Green card holders, I think that would be different as they have permanent status.
Actually, I read a quote from the author of the 14th amendment -in the context of his agreement with Ann Coulter- which also puts him which by extension squarely in your posse. I should have kept the link but didn’t because his description of the meaning of what he wrote seems self evident.
I have an Australian friend whose second child was born in Chicago, where her husband was pursuing his doctorate. This child is an American citizen, and they joke that he is their “anchor baby.” I reminded her (or informed her?) that he would have start filing an FBAR as soon as he had a bank account totaling $10,000 USD or more, and that he would have to pay taxes, even if he stayed in Australia forever. She was horrified.
I agree the current “anchor baby” trend is dangerous and should be ended. Citizenship should be conferred on the children of citizens or permanent legal residents. No doubt I am naive, but this seems like it should be an easy fix. And while we’re at it, can we please, pretty please, gut our monstrosity of a tax code?
To me it seems that by going through the proper channels to be here, they have accepted the jurisdiction of the US over them while they are here, anyway. Those here illegally, or those with fraudulently obtained tourist visas, have rejected that jurisdiction.
My question in such a case is, “is birth-right citizenship involuntary?”
What if the parents have every intention of returning to, say, New Zealand (which doesn’t allow dual-citizenship). What if they want their child to have New Zealand citizenship, despite being born in America? Do they have to renounce the child’s American citizenship to have their child gain Kiwi status? And does the US accept said renunciation on the child’s behalf?
What a hot mess of a policy. I find it stupid beyond comprehension.
A few thoughts:
There is no way to avoid every complicated situation. I think a child of an American citizen is an American citizen even if born abroad. So that could arise if an American/Kiwi couple had their child in New Zealand.
Citizenship of Sweden is based primarily on the principle of jus sanguinis. (= child citizenship determined by the parent’s)
In the 1860s when the amendment was written was there such a thing as “illegal immigration?” There is a difference of those here legally and illegally today, but did those categories even exist at the time?
I doubt it. But, that doesn’t address the birth tourism phenomenon. These people are here legally, if temporarily, and their children are, according to the current interpretation, “natural-born” citizens of these United States. They’re even eligible to become president(!), as Kozak points out.
This is insane.
My first cousin has four kids…each had to apply for US citizenship by a certain age (but did not have to go through naturalization) . At least one did, but not all of them. They live in Australia. This is common in military families, also. We helped by getting the public records showing the family’s American lineage. This is common in military families, also.When one of my daughters was born in Germany, we immediately applied for the US passport and got it. Many servicemen marry citizens from other countries. If they separate or retire from the service, they usually settle in the US. It is helpful to them to be able to bring the spouse’s parents to the US at some point, ie when they are elderly. There are more anchor situations other than the baby one. Immigration rules aren’t so easy to make if all things are to be considered. However, if it is left to Congress, as the Constitution states, and not to judges and executive branch bureaucrats, the decisions will best reflect the will of the citizens…provided members of Congress remember to whom they owe their loyalty.
It’s jaw-droppingly stupid… and a hot mess.
The Constitution vested this in the Legislative Branch, not the Judicial or the Executive Branch. It is simple, follow the Constitution.
Immigration rules may need to be complex, but birth-right citizenship seems fairly straight-forward. Anyone born to an American parent anywhere is automatically conferred American citizenship. Period. Any minor whose parent is naturalized as an American citizen is conferred American citizenship simultaneously. All others must go through the naturalization process.
I’m not trying to fix the naturalization process, which has its own problems. I just think we need a sane definition of “birth-right” citizenship. Basing it on the geographical location of one’s mother at birth is nonsensical, putting it mildly.
Don’t think of legal vs. illegal, or race-based standards. Think of it as wanted or unwanted. The intent of the amendment was to take this question of wanted or unwanted citizens out of the judicial and legislative process. They included three exceptions, but didn’t leave any further room for modification. Howard’s full quote on the matter is (PDF):
Emphasis mine. Full debates are at the link.
Continued next comment.
BTW, I am not proposing that we revoke the citizenship of those already here under the geographic birth-right understanding. I just think it’s obvious we need a saner way to move forward.
And, shockingly, I have no idea what Donald Trump has to say about any of this. I’m not following his campaign. I only tune in for the spectacle.
Sen. Conness elaborates:
He was responding, in part, to this:
His side lost the vote.
So that’s what we gave up with this amendment. The ability to keep the unwanted from becoming citizens.
Logically that would include illegal immigrants, who by definition are unwanted.
Oops.
Much like you can’t own a bazooka or abomb or shout fire in a crowded theatre there are no absolutes when it comes to the constitution. Writing a law that says you are a citizen when born automatically if your parents are here legally AND they are not on some sort of temporary status (diplomats, students, vacation, etc) seems perfectly reasonable to me and would not violate the 14th in either intent or spirit.
You’ve stated the case for the Progressive “living Constitution” quite well. At this late date in history, it’s obvious that that was a slippery slope of epic proportions, and a huge mistake if you actually believe in the Constitution as originally written.
Those amendments were meant to be absolute prohibitions, not suggestions.
Imagine how valuable it would be for people around the world to have valid US passport as a security ticket if things go badly? Particularly since we are so big on “keeping families intact”. That one US kid is a potential ticket for his parents, siblings ( well not in China’s case), and maybe the Grandparents and some aunts and uncles….
Why would we want to be like the rest of the world where citizenship is a matter of blood? Isn’t our citizenship conferral part of our exceptionalism?
Proposal for a new Amendment to the Constitution.
” A child born of a parent or parent’s who are US citizens is a citizen of the United States. A child born of a parent or parents who are permanent legal residents of the United States is a citizen of the United States. A child born of a parent or parents who are legal residents on a visa is not a citizen, unless his parents become permanent legal residents or become naturalized citizens. Children born of parents here illegally are not eligible for citizenship.”
Now all we need to do is get it passed….. (;-)
Yes, but it was a policy that made sense in a time we were trying to encourage immigration. That was several hundred million people ago…
Freely allowing immigration was also part of our exceptionalism, but that went quite a while ago.
I don’t think it’s unreasonable to close this loophole.
I think John’s implicit point here is that we’re making America so unpleasant a country relative to the rest of the world that we’re solving our immigration problem that way.
It’s certainly a strategy…
Why not make citizenship something earned? ‘Being a matter of blood’ means that we have already scrutinized the parents for entry and residency qualifications. What of Hamilton’s injunction? What is there to commend the current practices? (being different from all other countries’ hardly seems to commend them.)
This would not, and should not, work as a matter of Constitutional law. Congress cannot change the Constitution by adopting a statute changing the meaning of terms in the Constitution.
Think of the abuse that this could generate. For example
Yeah, most other countries require valid ID before voting, too. I think they may be onto something…