On The 14th Amendment

The news today is awash with the subject of "anchor babies". Are they automatically citizens of the US or not? "Pundits" on both sides of the aisle have opinions both pro and con.

Note: If you are not familiar with the term "anchor baby", it means simply that a child born in the US to those here illegally or those who are here legally but not US citizens becomes, by nature of the place of their birth, a US citizen. The term "anchor" refers to the belief that the non-citizen parents of said child should be granted citizenship as well. Thus, an entire family may be afforded all the benefits of US citizenship just because a child was born here.

As is many times the case when attempting to understand what the US Constitution actually means, it is read with the actual words as viewed from today's cultural context and mores. Not a good way to proceed with any document written in a past time or era.

A very simplistic example: Back in the 1940s and 1950s the word "gay" meant simply "happy" and/or "fun loving". It did not mean what the word conveys today. Therefore, if one reads a novel from that earlier time and the passage reads, "He was a truly gay person.", in today's context you would most likely believe the person was homosexual - and, that would be a wrong assumption.

It is the same with the US Constitution.

Specifically with relationship to "anchor babies" (referred to as the "Citizenship Clause" - underlined below), the 14th Amendment states:

"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."

It seems that the key point in question is the phrase "subject to the jurisdiction thereof". The Constitution does not include a section on "definition of terms". So, it is left to future generations to discern the actual meaning. With our Nation's government formed with a separation of powers among the Executive, Legislative, and Judiciary branches, it is the job of the Supreme Court to decide such. The Supreme Court renders "opinions" not Ex Cathedras. Unfortunately, as the membership of the Supreme Court changes over time, past "opinions" may be revisited with new "opinions" arising. Not the best of processes, this. But, it is what it is.

The Supreme Court has offered opinions on the 14th Amendment in the past. Click Here to view the summaries of many of these.

The main case used to argue that "anchor babies" are, by definition, US citizens is the case, "United States v. Wong Kim Ark" - summarized in the above link. In it the Court ruled that Wong Kim Ark who was born in the US to Chinese parents who were here "legally", was, in fact a US citizen. Even this ruling appears to go against the expressed actual meaning of the Amendment as offered below by its author.

However, the Court has never ruled on a child born here to parents here illegally. That is very important to today's controversies. There are companies here that offer what is called Birth Tourism. This, to me is a trifle unseemly! To some such tourism is felt to be perfectly legal; to others "not so much".

How do we determine what the 14th Amendment really and truly means?

A common sense method of determining the actual meanings of passages in the Constitution would be to seek what the original authors had to say. As all of these learned people are now dead, we can only go to their writings for guidance.

The primary author of the 14th Amendment was Sen. Jacob Howard.

From: thefederalist.com there is this:

When the House of Representatives first approved the measure that would eventually become the Fourteenth Amendment, it did not contain language guaranteeing citizenship. On May 29, 1866, six days after the Senate began its deliberations, Senator Jacob Howard (R-MI) proposed language pertaining to citizenship. Following extended debate the next day, the Senate adopted Howard’s language. Both chambers subsequently approved the constitutional amendment without further discussion of birthright citizenship, so the May 30, 1866 Senate debate offers the best insight into Congressional intent.

Senator Howard’s brief introduction of his amendment confirmed its plain meaning:

“This amendment which I have offered is simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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.”

Howard's explanation of what he meant seems very clear - independent of any court's ruling (again, subject to potential change by that same court at some later date).

There are those on both sides of the aisle who argue that Section 5 of the 14th Amendment grants to Congress the means to clarify the entire situation. Personally, I disagree.

The 14th Amendment, Section 5 states: The Congress shall have power to enforce, by appropriate legislation, the provisions of this article. Section 5 does grant to Congress the means to enforce the Amendment, but it does NOT state that Congress has the right to clarify or change the meaning of the Amendment.

Of course Congress can pass a new bill clarifying the meaning of "jurisdiction". However, this could (and probably would) be subject to a court case post passage - assuming the new bill became law.

A new Amendment, clarifying the original, seems to be the most viable, legal, and long lasting means of resolving the conflicts. And, as has been well stated by many, that is not an easy nor quick process.