Weighing Anchor (babies)


sombrero baby

The “anchor baby” portion of the “immigration” debate generates a few op-eds here and there, and lots and lots of soundbites, 2 1/2 minute interviews, 140-character tweets and so forth. But practically nil is a substantive “debate” on the issue. The following is a poor substitute, and shamelessly manufactured, and admittedly sophomoric and un-credentialed. But the right to argue is …..constitutional.

The ones arguing pro-anchor who cite the 14th Amendment claim every baby born in the US is a citizen of the US due to the “all persons born or naturalized” part of it. Then when you point out the rest of the 14th -“subject to the jurisdiction of the US” they hedge and say children of ambassadors aren’t because ambassadors aren’t subject to the jurisdiction. Au contraire, you say. Ambassadors have to obey the same traffic laws everyone else does. But their kids are not citizens because they are in the US for another reason than immigration. Same as with tourists, student visas, etc. They have to obey the speed limit and can’t rape or murder, but they don’t have to pay taxes, register for the draft or anything else. They are not here for themselves, or their children, to become citizens. Ergo they are not. (And that’s the crux of the argument: It is not the US government that subjects citizenship-seekers to it’s jurisdiction, citizenship-seekers subject themselves to US jurisdiction .)

Then when you point out that illegal immigrants are not here to become citizens either, and therefor their kids shouldn’t be, they say, “Well the US Government can “grant” citizenship to whoever it wants.” Then when you say “At what point in the gestation or post-gestation period did that baby apply for a grant of citizenship?”, they say “Well, the US government can ‘confer” citizenship on whoever it wants.”

At which point you say “Whoa! I thought the 14th was the final word! I thought you said all babies born here were automatically citizens, except for ambassadors, except for tourists, except for students, except for enemy combatants’ kids born in US Prisons, and except for this, that and the other?
What’s this about Congress can ‘confer’ citizenship? Because, sweetie, if Congress can ‘confer” it can also unconfer.”

Consider this scenario – A terrorist who blends in with the Mexicans swimming the Rio Grande has a baby and it is a citizen? “Oh, no! Not a terrorist!” So how do you know?

“Well, they have been living here for five years?” How do you know? “Because they said so. ” Did they also say they weren’t terrorists? ” We didn’t ask them.” Nobody asked them for what purpose they were entering the United States? “No.” Do they ask them at JFK when they walk up to the desk “For what purpose are you entering the United States?” “Well, yeah.” So what’s the difference between JFK and the Southern Border?


The Constitution does not say that children born in the US to people who are enemies of the US, or terrorists, or ambassadors, or visiting professional golfers, who swear no allegiance to obey the Constitution or laws of the US or of the states in which they reside, are not citizens. But they are not. Unless you accept “subject to the jurisdiction” has a more intricate definition than just “Well, they have to pay sales tax on their Pepsi colas” you will have to seriously consider the possibility that if Osama bin Laden’s family had been pro-creative when they were in the US, they could have demanded that Uncle O, as part of the family, be allowed sanctuary in the anchor home established by his kin while they were here. The Saudi 19 who blew up the WTC were subject to the laws of New York, Massachusetts, Arizona and they dutifully obeyed all the speed limits. I don’t know if any of them had kids, but I believe all of them had papers, though some were maybe expired, saying they were in the US legitimately as tourists, businessmen, students or whatever. But they never applied for citizenship, never swore any allegiance to the US.

Neither do illegal aliens.

Illegal aliens crossing the border have no legitimate business in the US. They are not tourists, they are not students, they are not businessmen. And they are not “immigrants”. Migration is not immigration. As far as whether they are terrorists, or enemies of the US, whether they have been here for six months or six years, nobody can know. But to assume they are not, when they have once violated the sovereign borders of the US, and for the US government to “confer” upon their children citizenship, would be no different than conferring citizenship on the children of Ahmed abu Abyss who slipped past the guards at JFK.

“…And subject to the jurisdiction thereof…” means a lot more than just obeying the speed limit on Interstate 10.

we the people

Those of us who believe that Supreme Court rulings do not trump (sorry) the authority of Congress, but who believe the Constitution means what it says, would say that ‘subject to the jurisdiction of’ has to do with laws passed by the United States Congress. It seems inconceivable that Congress would pass a law saying that the children of illegals were automatically citizens any more than the children of (pick your favorite foreign national) terrorist. But if they did, I suppose it would be consistent with the 14th Amendment.

Conversely, if they passed a law denying the conferral of citizenship, or the “granting” of citizenship, that would also be consistent. The 14th does not give to SCOTUS the authority to say which laws pertain to “the jurisdiction of” and which laws do not. That determination has to be by Congress, every bit as much as Congress is the body which decides how long a LEGAL immigrant has to wait for a visa, green card, citizenship papers, what tests he/she must pass, what length of residency they must maintain, what language they must be able to read and speak. If Congress has that authority, it certainly has the authority to say that children of illegals must apply like everyone else, and set the terms.

The people who claim the 14th gives blanket citizenship renege on that claim almost immediately when you start citing extenuating circumstances, and in the final analysis, after all is said and done, are left with only “Well, it’s the right thing to do, or the compassionate thing to do, or “no fault of their own”.

Those are all valid arguments for Congress to act in their favor, but they are not Constitutional arguments. And we haven’t even discussed the ramifications for national sovereignty the whole “anchor baby” and “immigration reform” issues in general contain. But just know this: In addition to the range of venues these and other topics can now be aired in, thanks to Bill Gates and Steve Jobs, the number of participants in the debate is no longer limited to the “experts”, the so-called “constitutional scholars”, “legal eagles”, and “distinguished professors’, nor even Tom Friedman, Al Gore and Jon Stewart. The American people are realizing they can have a say and they also have the bona fides to do so. Because they are the authors of the Constitution in the first place and as such are entitled to weigh in on what it means.

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Mike gamecock DeVine
August 24, 2015 4:52 pm

Bob, go to my Facebook page and scroll for the past week and you will find substantive legal columns and treatises that establish beyond doubt that neither the “plain meaning” of the words nor the intent was to grant birthright citizenship to any immigrant, legal or illegal. The 19th century Wong case wrongfully interpreted the 14th to grant birthright citizenship to a temporary legal immigrant couple. No case involving a baby born to two illegals has ever been decided by the court. A footnote in a concurring opinion not joined by five justices alleged a child of illegals would be… Read more »

August 24, 2015 4:56 pm

“The American people are realizing they can have a say and they also have the bona fides to do so. Because they are the authors of the Constitution in the first place and as such are entitled to weigh in on what it means.”

We the People…

Enough said.

Mike gamecock DeVine
August 24, 2015 5:13 pm

Those people need to get a Facebook account (see also automatic transmission, cell phone and indoor toilet….smile) and go to find friends and enter; Mike DeVine in Atlanta, Georgia and Voila! access to DeVine Law Gamecock rooster crowings. And I suffer less carpal tunnel and arthritis…I will post a few here later if begged for….smile

August 25, 2015 7:35 am

Anchor babies, like all other great lies, becomes truth once it is repeated often enough. The practices carries the “truth” of a commonly accepted practice, or lie, for many years. The legal argument is clear, as Gamecock has showed…but alas, we have to wait for Anthony Kennedy to get in touch with his Ouija Board to certify it. We need to fight this as if we are trying to recapture a lost right, which seems to be the way Trump and the conservatives are approaching it.