Immigration and the 14th Amendment

No, the Constitution doesn't require birthright citizenship.

As we approach the November elections, much of the furor over immigration seems to have died down.  An attempt is being made to use it as a means to pull down Republican California gubernatorial candidate Meg Whitman, who seemingly hired an illegal alien.  This illegal alien is now, with the help of the opposition party, trying to make political hay.  But even this ruckus is more about an attempt to discredit a candidate than it is about immigration.

Since immigration was at the forefront right after the Arizona immigration law was passed, enough time has passed to reflect on the issue and in particular, what's the proper Constitutional response - as well as what's the proper humanitarian response.  After all, these are human beings attempting to make a better life for themselves in the greatest country on the earth or at least what used to be the greatest country on earth.

One of the problems with our current de facto immigration policy is that we've assumed that any child born in the United States is automatically a citizen of the United States. Some Supreme Court rulings have even supported this idea obliquely if not directly.

Before continuing with the discussion an important point needs to be made.

The point is simply this: the Supreme Court is not infallible. They have made rulings in the past that were dead wrong and will make rulings in the future that are dead wrong.  I point to the infamous Dred Scott case as one example out of many.

In looking at the 14th Amendment and subsequent court rulings, context becomes important.  In fact, context is everything.

The 14th Amendment came about after the Civil War and the freeing of black slaves.  Southern states were required to pass the amendment as a requirement of being readmitted into the Union.

The southern states were attempting to deny rights to the newly freed slaves because they weren't "citizens."  The entire amendment was designed to address the issue of freed slaves and ensure their protection under the Constitution like all other citizens.

To add to our contextual understanding of the amendment, we have the explanation of Senator Jacob Howard (MI), author of the Amendment, that it "[excludes] persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."  This idea was supported by several other senators.  Clearly, the author of the bill intended it to cover the newly freed slaves, legal residents who were not diplomats and the children of current citizens of the United States alone.

Subsequent court rulings muddied the waters, and Congress did nothing to help clarify them in the intervening 142 years.  In fact, by letting various muddled court rulings stand, Congress has contributed directly to the problem we have today with anchor babies.

Contrary to what you may hear, there has never been a definitive ruling on the immigration status of children born to illegal aliens.  The 1985 INS v. Rios-Pineda didn't directly address the issue; it merely let the assumption stand that the child born to illegal parents was a legal citizen without saying so either way.

So, does the 14th Amendment apply to children of illegal aliens?  It's actually for We the People to decide because the issue hasn't been decided yet.  A reading of history and context would imply that it does not - of course, there are many that would disagree.

The best course of action would be to clearly and explicitly decide one way or the other.

The prudent decision would be to not grant citizenship to the children of illegal aliens.  This one rule would stem the tide of illegal immigration.

It would allow for the deportation of entire families rather than tearing them apart.  It would reduce the strain on social welfare services.  It would be a key piece to lasting, rational immigration reform.  That's why the defenders of our current system are so adamant that the 14th guarantees citizenship to the children of illegals.

How does the 14th Amendment to the Constitution guide us with regard to our illegal immigration problem today?  Logic and reason would say that anchor babies are not citizens by any logic, right, or sensible rationale.

Unfortunately, political pressures keep it it from being that simple.  But politics can be changed and hopefully will be this November.

Fennoman is a guest writer for  Read other articles by Fennoman or other articles on Immigration.
Reader Comments

Fennonman, you've just blown my mind. I had not idea that the 14th was not in fact concretely defined for anchor babies. I always assumed that children born here are citizens because... that's what the amendment says.

October 7, 2010 12:19 PM

Such a law interpreting the amendment would of course be vetoed by the president (disrespect intended). But, I suspect a strategy of piling up a list of laws favored by the people that are vetoed by the prez would be a possible plan for 2012.

October 7, 2010 12:42 PM

"Logic and reason would say that anchor babies are not citizens by any logic, right, or sensible rationale"

Unfortunately, logic and reason are no longer relevant to how we govern. More like emotion and sensitivity.

October 7, 2010 2:53 PM

@ Ifon

You are absolutely right, as George Washington said "we are a nation of laws, not of men"

October 8, 2010 8:05 AM


George Washington was right in that in HIS day we were a nation of laws. Since Roosevelt threatened to pack the court and they caved, however, we've been a nation of men. We do whatever the Supremes want us to do.

October 8, 2010 7:45 PM
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