In the United States we are under the assumption that if a person is born on American Soil, the child is automatically an American Citizen. This is called "Birthright Citizenship," and the assumption is wrong. "Anchor babies," as they are often referred to, are an unconstitutional phenomenon that goes way beyond the stereotype of a Mexican mother crossing the border to have her baby, in the hopes that the government won't send her back because her child is an American Citizen. The leftist argument that immigration laws being enforced break up families is anchored in the concept of birthright citizenship. The Citizenship Clause of the Constitution's 14th Amendment is considered the foundation of the concept.
What has emerged, out of all of this, is an industry catering to those that desire to have their babies in the United States, as a way of seeking to immigrate into our country.
The Chinese, in particular, have a growing community here in Southern California, and a part of that growth has been through Birth Tourism Hotels. As the Press Enterprise reports, one company, "You Win USA Vacation Resort," appeals to the wealthy Chinese, offering to house the visitor for a price so that they can have an "American baby." The offer is a good one to the Chinese. California weather is an irresistible perk, and for some, American citizenship for their child is an insurance policy for their kids against financial and lifestyle risks in the homeland. The fear of financial difficulties in China is a real one to have, considering China, with 1.39 billion people, is the most populous country in the world, and has an economy that has slowed recently. What goes up must come down, and China has been booming; its growth of 7.4 percent last year dwarfed the 2.4 percent growth in the U.S. That kind of growth, it is believed by many, can only last so long, and wealthy Chinese are willing to prepare for the worst. After all, their country is still one ruled over by communists. There is definitely anxiety that all of this could fall apart.
Thousands of wealthy families are paying tens of thousands of dollars to have an American-born baby. Federal agents have raided homes in San Bernardino, Orange and Los Angeles counties, taking with them boxes of documents they hope will help build criminal cases against the companies.
On the surface is the whole point of the existence of these Birth Tourism Hotels; the offer to their customers the opportunity to give their babies U.S. citizenship.
According to a Press Enterprise article, U.S. citizenship "is bequeathed to anyone born here regardless of their parents’ citizenship." That citizenship, according to the writer, "comes with its own perks, of course: free K-12 education, potential access to great universities, visa-free hassles for travel with many foreign countries, strong medical care and Social Security upon retirement. The birth tourism websites also tout benefits for the parents. When a child turns 21, he or she can sponsor parents to the United States. And if the baby is a boy from Taiwan, he doesn’t have to serve in that country’s military."
The root of all of this immigration activity comes from a false understanding of the language of the Citizenship Clause, which was carefully crafted because the writers wanted it to remain in line with the original intent of the Founding Fathers, especially when it came to the dangers of divided allegiance.
The Citizenship Clause is the first clause of the Fourteenth Amendment, and it was intended to ensure that the children of the emancipated slaves, as well as the newly freed slaves, would be considered citizens without any room for argument.
The clause reads: "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."
In today's thinking, we are taught that the clause means "all persons born in the United States are automatically citizens.” What people miss is that the defining term in the clause is not an automatic ticket to citizenship, and includes more than just being born on American Soil. The part of the clause in question reads: "and subject to the jurisdiction, thereof."
The word "and" comes after the part that says "All persons born or naturalized in the United States." The word "and" immediately disarms the argument that "and subject to the jurisdiction, thereof" is referencing people born on American territory, but outside the United States. If that was the case, the word would be "or." This is not to say that persons born outside the United States cannot be citizens. The Immigration and Naturalization Act of 1790 clarifies the intent in regards to citizenship by placing an emphasis on protecting the country from divided allegiance, of which the writers of the Citizenship Clause of the 14th Amendment recognized.
Another argument used by those that wish to rewrite the Constitution by redefining its terms is that the word "jurisdiction" in the 14th Amendment means, "the limits or territory within which authority may be exercised," which is indeed one of the definitions of "jurisdiction" in today's language. Using that definition, one can see the caller's argument, and Rush Limbaugh's failure to correct him, because that would make any baby born in the limits of American Territory an American citizen.
Constitutional definitions, however, are not based on the whims of an ever-changing lexicon, but the original definitions intended as agreed upon during the final ratification process. What this means is we must ask ourselves what was meant back in 1866.
To understand "and subject to the jurisdiction, thereof," one must go to the debates recorded in the Congressional Globe, which is the congressional record of the 14th Amendment Congressional debates. In those debates, and in articles of that time period written to explain the intent of the language of the amendment, one finds that "and subject to the jurisdiction, thereof" was meant to mean "full allegiance to America."
Remember, the Founding Fathers, faced with the danger of loyalists to the British Empire in their midst, were adamant about protecting the fledgling country against persons with divided loyalties.
The writers of the Fourteenth Amendment wished to follow the importance of "full loyalty" as portrayed by the Founding Fathers. As far as the founders were concerned, there could be no divided allegiances. They expected citizens to be fully American.
Despite the defeat of the Confederacy in the American Civil War, after hostilities ended the emancipated slaves were not receiving the rights and privileges of American citizens as they should have been. The former slaves were present in the United States "legally," and because they were here legally they were "subject to the jurisdiction, thereof," but they were still not receiving any assurance of equal protection under the law.
The Civil Rights Act of 1866 was created in the hopes of correcting the problem. Some of the language in the Civil Rights Act of 1866 states, "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. ... All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
The definition of "persons within the jurisdiction of the United States" in that act was all persons at the time of its passage, born in the United States, including all slaves and their offspring, but not having any allegiances to any foreign government.
Michigan Senator Jacob Howard, one of two principal authors of Section 1 of the 14th Amendment (the Citizenship Clause), noted that its provision, "subject to the jurisdiction thereof," excluded American Indians who had tribal nationalities, and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."
Exact quotes:
Mr. HOWARD: I now move to take up House joint resolution No. 127.
The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.
The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”
He even went out of his way to indicate that children born on American soil of foreign citizens are not included.
Clearly, the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil.
The second author of the Citizenship Clause, Illinois Senator Lyman Trumbull, added that "subject to the jurisdiction of the United States" meant "not owing allegiance to anybody else."
The full quote by Senator Trumbull reads:
"The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means."
Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens."
Senator Howard concurred with what Mr. Trumbull had to say:
"Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word 'jurisdiction,' as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."
Based on these explanations by the writers of the clause, then, it is understood that the intention was for those who are not born to American citizens to have no birthright to citizenship just because they simply were born inside the borders of this country.
The courts have interpreted the Citizenship Clause to mean other things, but we must remember that the Constitution cannot be changed by the courts. Changes to the Constitution can only be made by amendment (Article V.).
So, going back to the idea that the 14th Amendment, and more specifically the Citizenship Clause, is the cause of all of this Birth Tourism, we need to realize that the Constitution allows no such thing. The clause simply needs to be followed in accordance to its original intent. Anchor babies, and the children of folks giving birth in the United States as a result of Birth Tourism, are born to parents that do not have full allegiance to the United States, therefore, the child does not automatically become a citizen of America just because their birth occurred on American soil.
The Citizenship Clause is the first clause of the Fourteenth Amendment, and it was intended to ensure that the children of the emancipated slaves, as well as the newly freed slaves, would be considered citizens without any room for argument.
The clause reads: "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."
In today's thinking, we are taught that the clause means "all persons born in the United States are automatically citizens.” What people miss is that the defining term in the clause is not an automatic ticket to citizenship, and includes more than just being born on American Soil. The part of the clause in question reads: "and subject to the jurisdiction, thereof."
The word "and" comes after the part that says "All persons born or naturalized in the United States." The word "and" immediately disarms the argument that "and subject to the jurisdiction, thereof" is referencing people born on American territory, but outside the United States. If that was the case, the word would be "or." This is not to say that persons born outside the United States cannot be citizens. The Immigration and Naturalization Act of 1790 clarifies the intent in regards to citizenship by placing an emphasis on protecting the country from divided allegiance, of which the writers of the Citizenship Clause of the 14th Amendment recognized.
Another argument used by those that wish to rewrite the Constitution by redefining its terms is that the word "jurisdiction" in the 14th Amendment means, "the limits or territory within which authority may be exercised," which is indeed one of the definitions of "jurisdiction" in today's language. Using that definition, one can see the caller's argument, and Rush Limbaugh's failure to correct him, because that would make any baby born in the limits of American Territory an American citizen.
Constitutional definitions, however, are not based on the whims of an ever-changing lexicon, but the original definitions intended as agreed upon during the final ratification process. What this means is we must ask ourselves what was meant back in 1866.
To understand "and subject to the jurisdiction, thereof," one must go to the debates recorded in the Congressional Globe, which is the congressional record of the 14th Amendment Congressional debates. In those debates, and in articles of that time period written to explain the intent of the language of the amendment, one finds that "and subject to the jurisdiction, thereof" was meant to mean "full allegiance to America."
Remember, the Founding Fathers, faced with the danger of loyalists to the British Empire in their midst, were adamant about protecting the fledgling country against persons with divided loyalties.
The writers of the Fourteenth Amendment wished to follow the importance of "full loyalty" as portrayed by the Founding Fathers. As far as the founders were concerned, there could be no divided allegiances. They expected citizens to be fully American.
Despite the defeat of the Confederacy in the American Civil War, after hostilities ended the emancipated slaves were not receiving the rights and privileges of American citizens as they should have been. The former slaves were present in the United States "legally," and because they were here legally they were "subject to the jurisdiction, thereof," but they were still not receiving any assurance of equal protection under the law.
The Civil Rights Act of 1866 was created in the hopes of correcting the problem. Some of the language in the Civil Rights Act of 1866 states, "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States. ... All persons within the jurisdiction of the United States shall have the same right in every State and Territory to make and enforce contracts, to sue, be parties, give evidence, and to the full and equal benefit of all laws and proceedings for the security of persons and property as is enjoyed by white citizens, and shall be subject to like punishment, pains, penalties, taxes, licenses, and exactions of every kind, and to no other."
The definition of "persons within the jurisdiction of the United States" in that act was all persons at the time of its passage, born in the United States, including all slaves and their offspring, but not having any allegiances to any foreign government.
Michigan Senator Jacob Howard, one of two principal authors of Section 1 of the 14th Amendment (the Citizenship Clause), noted that its provision, "subject to the jurisdiction thereof," excluded American Indians who had tribal nationalities, and "persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers."
Exact quotes:
Mr. HOWARD: I now move to take up House joint resolution No. 127.
The motion was agreed to; and the Senate, as in Committee of the Whole, resumed the consideration of the joint resolution (H.R. No. 127) proposing an amendment to the Constitution of the United States.
The first amendment is to section one, declaring that all "persons born in the United States and Subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside. I do not propose to say anything on that subject except that the question of citizenship has been fully discussed in this body as not to need any further elucidation, in my opinion. 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. It settles the great question of citizenship and removes all doubt as to what persons are or are not citizens of the United States. This has long been a great desideratum in the jurisprudence and legislation of this country.”
He even went out of his way to indicate that children born on American soil of foreign citizens are not included.
Clearly, the framers of the Fourteenth Amendment had no intention of freely giving away American citizenship to just anyone simply because they may have been born on American soil.
The second author of the Citizenship Clause, Illinois Senator Lyman Trumbull, added that "subject to the jurisdiction of the United States" meant "not owing allegiance to anybody else."
The full quote by Senator Trumbull reads:
"The provision is, that 'all persons born in the United States, and subject to the jurisdiction thereof, are citizens.' That means 'subject to the complete jurisdiction thereof.' What do we mean by 'complete jurisdiction thereof?' Not owing allegiance to anybody else. That is what it means."
Trumbull continues, "Can you sue a Navajo Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we wouldn't make treaties with them...It is only those persons who come completely within our jurisdiction, who are subject to our laws, that we think of making citizens; and there can be no objection to the proposition that such persons should be citizens."
Senator Howard concurred with what Mr. Trumbull had to say:
"Mr. HOWARD: I concur entirely with the honorable Senator from Illinois [Trumbull], in holding that the word 'jurisdiction,' as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now."
Based on these explanations by the writers of the clause, then, it is understood that the intention was for those who are not born to American citizens to have no birthright to citizenship just because they simply were born inside the borders of this country.
The courts have interpreted the Citizenship Clause to mean other things, but we must remember that the Constitution cannot be changed by the courts. Changes to the Constitution can only be made by amendment (Article V.).
So, going back to the idea that the 14th Amendment, and more specifically the Citizenship Clause, is the cause of all of this Birth Tourism, we need to realize that the Constitution allows no such thing. The clause simply needs to be followed in accordance to its original intent. Anchor babies, and the children of folks giving birth in the United States as a result of Birth Tourism, are born to parents that do not have full allegiance to the United States, therefore, the child does not automatically become a citizen of America just because their birth occurred on American soil.
-- Political Pistachio Conservative News and Commentary
Birth Tourism: Safety, security draw Chinese Parents to Southern California - Press Enterprise
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