New Attacks on Birthright Citizenship: “Anchor Babies” and the 14th Amendment

Recently, the somewhat repugnant term “anchor babies” has entered the immigration debate, as certain conservatives call for a reassessment of the 14th Amendment, claiming it wrongly protects the children of undocumented immigrants. Senator Lindsey Graham (R-SC), in a surprisingly radical move on his part, appeared on Fox News on July 28th explaining a new tactic dubbed “drop and leave,” in which undocumented mothers come to the U.S. explicitly to have a child. As a result of this process, the baby would be granted American citizenship, thus providing an “anchor” with which the parents could later use to gain legal residence themselves.

Sen. Graham, along with former presidential nominee Sen. John McCain (R-AZ), was once a staunch Republican promoter of comprehensive immigration reform who sought to provide undocumented residents with legal pathways towards citizenship. Now both, together with other prominent conservatives such as Sen. John Kyl (R-AZ) and Senate Minority Leader Mitch McConnell (R-KY), have taken a leap to the far right in attacking the citizenship clause of the Constitution.

Many anti-immigration activists have claimed that the United States is outdated in providing birthright citizenship. Glenn Beck of Fox News and Bob Dane of FAIR have claimed, respectively, that the U.S. is “the only country in the world” or at least the only “western country” where birthright guarantees citizenship. Neither is true: the U.S. is among 33 other countries—including Canada—that practice jus soli (grant birthright citizenship).

“Anchor babies” have been mentioned ominously in connection not only to illegal immigrants who cross the U.S.-Mexico border, but also to affluent “birth tourists” and supposed terrorist organizations. The suggestion that the U.S. revise the 14th amendment is merely a ploy by conservatives to further anger the American public regarding immigration that conveniently comes just in time for the midterm elections, and has little chance of being seriously considered. Although undocumented immigrants do have children in the U.S.—which now account for 8% of all births in the U.S.—this idea of “drop and leave” is overt fear-mongering. Furthermore, the U.S. Supreme Court has repeatedly dealt with the wording of the 14th Amendment that conservatives are questioning, meaning that in order for the U.S. to effect a change in birthright citizenship policy, the amendment must be changed or past Supreme Court decisions must be overturned; both are extremely unlikely. However, this new discussion about “anchor babies” illustrates, as Julia Preston of The New York Times states, a “rightward shift in the immigration debate.”

The 14th Amendment

The 14th Amendment was promulgated in 1868 to ensure the rights of minority groups, specifically those of the thousands of African-Americans that had been freed from slavery during and after the Civil War. The Amendment includes multiple clauses such as the right to equal protection, due process, and the now-debated citizenship clause. This provision states that “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.” The clause was created shortly after the 1866 Civil Rights Act to ensure that birthright citizenship was constitutionally protected.

Since 1868, the Amendment has been questioned in multiple Supreme Court cases that have clarified doubts regarding the wording of the clause. In the late 1800s, xenophobia toward immigrants of Chinese descent swept through the United States, resulting in the Chinese Exclusion Act of 1882. This law prohibited any Chinese immigrants from entering the country. Wong Kim Ark, a child of Chinese immigrants, was born in California in 1873. He traveled to China, but upon return to the United States was barred from entering. Ark objected, and the case was taken to the Supreme Court in 1898. In a 6-2 decision, Ark was declared a U.S. citizen by the 14th Amendment, and thus exempt from the Chinese Exclusion Act.

Similar cases such as Perkins v. Elg in 1939, and Afroyim v. Rusk in 1967 have dealt with the specific rights of the citizenship clause, and the Court has consistently declared that any child born within the precincts of the U.S. is a legal citizen. In the recent debate, many conservatives have questioned the intent of the words “within the jurisdiction of,” arguing that this does not apply to the children of undocumented immigrants who have entered the country illegally. But 1982’s Plyer v. Doe stated that the undocumented immigrants who reside in a specific state are “within the jurisdiction” of that state. In addition, the majority opinion stated, “no plausible distinction with respect to the Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.”

Some conservatives argue that the world today is vastly different from what it was in 1868. They contend that the framers could not have foretold the unprecedented immigration seen in the 21st century, and thus the 14th Amendment is not suited to adequately address contemporary issues. While it is true the United States has greatly changed since the end of the 19th century, at the time the Amendment was passed there was certainly substantial immigration, and the clause was not solely aimed at freed slaves. In “Citizenship Matters,” an article by J.M. Mancini and Graham Finlay that compares the Irish Citizenship Referendum to American birthright citizenship, the authors refer to the work of Gerald Neuman and point out that “before Reconstruction, the U.S. did not have ‘open borders’: state and federal law restricted the immigration of paupers, the physically infirm, convicts, and, after 1808, illegally imported slaves. Nonetheless, the framers of the 14th Amendment did not seek to exclude from citizenship anyone who descended from these ‘illegal’ entrants.”

“Anchor Babies”

Recently, conservatives have criticized the 14th Amendment, claiming that it has been interpreted to give unearned citizenship to the children of undocumented residents, providing an “anchor” for the parents to also earn legal status. But many other scholars have remarked on the difficulty of attaining legal residency for the parents in these situations. Not only does the child have to be over 21 before he or she can pursue citizenship for the parents, but the parents also must return to their home country for at least 10 years before their papers can be processed. Thus, as Roberto Suro, a communications and journalism professor at University of Southern California, has stated, “It is a hell of a lot of deferred gratification at best.” The only short term benefits of giving birth to a child in the U.S. are that in some cases, legal children can help the parents avoid deportation, the children can enroll in Medicaid, and there are some programs that will aid pregnant or nursing mothers regardless of status.

The statistics show that the frequency of immigration is largely a function of the job market, and not contingent upon any ulterior motive of reaping birthright citizenship benefits. Roberto Suro explains, “All the data suggests that people come here to work…especially Mexicans, and especially illegal Mexicans. If people came here because they were looking for work, you would expect to see the flow fluctuate with employment opportunities—and that’s what the data shows. If people came here to have babies, the flows would be pretty constant, and they are not.” As he notes, undocumented immigrants are much more likely to be men. If there were, in fact, this supposed trend of “drop and leave,” statistics would show a higher percentage of women immigrants.

Douglas Massey of the Mexican Migration Project draws the same conclusions. On May 20th, 2009, in a testimony before the Senate Judiciary Committee, Douglas stated, “data clearly indicate[s] that Mexican immigration is not and has never been out of control. It rises and falls with labor demand and if legitimate avenues for entry are available, migrants enter legally.”

On April 14th, 2010, an ABC article raised the issue of “birth tourism,” a trend in which wealthy foreigners come to have children in special American-based resorts so that their children will gain American citizenship. The article questions the legitimacy of the 14th Amendment in light of these trends, but has received criticism due to its misrepresentation of certain facts. Birth tourism made up about two-tenths of 1% of all births in 2006. Furthermore, these affluent non-natives have little in common with the undocumented immigrants primarily targeted by attacks on the 14th Amendment. As a Washington Post article stated in July, “most [parents who come to the U.S. through ‘birth tourism’] say they do not intend to live in the United States themselves.” Rather, they pay vast amounts of money to give their children the opportunity of a future in the United States later in life.

According to some commentators, another threat raised by the 14th Amendment is the potential for terrorism. On June 24th, 2010, Representative Louie Gohmert (R-TX) stated on the House floor that terrorist cells overseas have “figured out how stupid we are being in this country to allow our enemies to get into our system, hurt our economy, get set up in a position to destroy our way of life, and we won’t do anything about it…[and] we’ll sue a state that tries to do anything about it.” He claims that terrorist organizations will send pregnant women to the United States to reap the benefits of birthright citizenship, then train these children as militant extremists who will return to the country thanks to their legal status. No data has been made public to support these claims. When Gohmert said, “we’ll sue a state that tries to do anything about it,” he was referring to the Obama Administration’s recent decision to take the state of Arizona to court over immigration bill SB1070. However, the idea that SB1070 would be able to “do anything about” terrorism is extremely doubtful. As Douglas Massey of the Mexican Migration Project stated in a testimony in front of the Senate Judiciary Committee, “the 1990s War on Immigrants was followed by the post-9/11 War on Terror, which was quickly conflated with immigration and identified with the Mexico-US border, despite the fact that none of the 9/11 hijackers entered from Mexico, that [Mexico] has no Islamic terrorist cells, has no significant Muslim population, and by that point had a declining rate of undocumented migration.”

Therefore, Gohmert’s connection of terrorism with the border and “anchor babies” could be seen as largely a political ploy. Sam Fulwood III of the Center for American Progress stated in an interview with COHA, “In effect, those who advocate for changing the Constitution are throwing the kitchen sink into their arguments, conflating every possible combination of birthright citizenship to raise the ire of American voters to their cause…The facts of the matter in birthright citizenship isn’t what conservatives are using, rather they’re making highly charged emotional cases—with questionable facts and logic—to garner support among the public.”

What This Means for the Immigration Debate

This country needs immigration reform. However, changing the Constitution to reflect the racial tensions of the day is an inappropriate solution and demeans the values that this country was founded on. As Elizabeth Wydra from the Constitutional Accountability Center has stated, the 14th Amendment was meant to “place the conditions of citizenship above the politics and prejudice of the day.” This year, the immigration debate has adopted a racially oriented tone, and this new attack on the Constitution is an example of this trend. The chances of passing any constitutional changes are slim to none. Amendments must be approved by two-thirds of the House and Senate and ratified by three-fourths of the states, an incredibly long and difficult process, especially for something that has so little Republican, much less bipartisan, support. But certain conservatives claim that the issue of birthright citizenship—when applied to the children of undocumented residents—does not need an amendment, simply a clarification. Unfortunately for these conservatives, this has been clarified multiple times through various Supreme Court cases.

The question is how this new debate will affect the coming midterm elections. Republicans are gambling on gaining enough conservative votes over immigration concerns to support them in November. Often, emotions draw voters to the polls, and this new attack on the 14th Amendment may either gather support from upset conservatives or cause victimized Latinos to shun the Republican Party.

What This Means for the Future

Ultimately, this new push is an attempt to garner Republican support in a changing America, as Sam Fulwood III of the Center for American Progress notes:

“Taken at their word, [Conservative Republicans are] concerned that America’s way of life is being threatened as immigrants overwhelm the ability of native citizens to govern and pay for social services. I don’t believe that. I think it’s a fear of the browning of America and a threat to the Republican Party to project itself as a political retreat for conservative, white and male authority over national events. Demographers estimate that by 2050, the nation will no longer have a majority white population with roughly 25 percent of the population Latino, 13 percent African American and another 13-15 percent Asian American. That would leave generously some 45-48 percent of the population defined as non-Hispanic white. Such dramatic demographic change means that politics must change to accommodate the newly emerging voices from people of color. Conservative Republicans seem, as things are going now, likely to lose out on garnering support among these new Americans. My supposition is that by limiting the number of immigrants, the conservative Republicans hope to forestall the browning of America.”

Thus as the demographics of this country change rapidly, political actions become more and more drastic. Politicians aim at catering to those most likely to vote, which helps explain this new strategy based on attacking the 14th Amendment. Immigration is a heated issue, and surprisingly, in a June 2010 poll by Rasmussen Reports, 58% of Americans surveyed stated that a child born to an illegal immigrant should not automatically become a U.S. citizen. Thus, while any follow-up action regarding birthright citizenship is unlikely, conservatives may be able to ride through the polls by eliciting an emotional response from the American public regarding immigration. Julia Preston explains this new trend in right-wing politics by citing Sen. Lindsey Graham’s radical change in agenda, stating, “Graham [is a] conservative from a conservative state.” Thus it seems that as politicians cater to party aims, bipartisanship, especially on issues such as immigration, has a dismal future.

What this country needs is comprehensive immigration reform, not an attack on the Constitution. Furthermore, taking away birthright citizenship will only increase the undocumented population within the United States, not decrease it. The United States was founded upon the principles of equal opportunity, and revoking, amending or reshaping the 14th Amendment will produce even larger schisms within an already fractioned American society.

8 thoughts on “New Attacks on Birthright Citizenship: “Anchor Babies” and the 14th Amendment

  • August 24, 2010 at 4:52 pm

    If the economic growth Mexico had sustained during the 1960-1980 period had continued, it would now have roughly European living standards – and the US would have far fewer immigrants from Mexico. The economic growth was derailed by neoliberal policies the US and the Mexican elite forced on the country. These were made even worse with the passage of so called "free trate" agreement – NAFTA – which is obvioulsy not about "free trade" since that would involve the free flow of workers across borders in search of job opportunites.

    If the US had a real opposition party it would be saying that the way to reduce illegal immigration is to, among other things, tear up NAFTA . They would also bash the Republicans for seeking to drive down wages in the US by increasing the coercive power of those who employ illegal immigrants – the only realistic outcome of the repugnant polices they propose.

  • August 24, 2010 at 7:10 pm

    what is so "repugnant" about an agreement with which MEXICO wins?
    Prior to 1994 the US had a trade surpluswith Mexico. Since Clinton signed NAFTA, we have had ever-increasing deficits – we are up to about $80Billion in hock to MEXICO… what is repugnant about Mexico enjoy a terrific trade surplus?…on top of the $20B in remittances which is money NOT earned by Americans and money NOT spent in the US economy…
    Individual companies certainly are winners, but the US economy is driven deeper and deeper into debt…. 30 years of unrelenting DEFICITS with virtually every trade agreement!!!

    YES I AGREE – cancel NAFTA, but MEXICO would not like that…

  • August 24, 2010 at 7:36 pm

    Americans like most nations hae a sovereign right to stay as they are. There is no law in nature that says nations MUST accept people of a different color. America may in the end NEED immigrants from non-white parts of the world, but America must not be forced to commit cultural suicide…..

    The US immigration system may be broken, but so is the whole of Mexico….who will fix Mexico if not Mexicans?

  • August 24, 2010 at 8:17 pm

    I'll ignore you bigotted remarks about "cultural suicide" etc..and stick to the facts about NAFTA.

    Increased trade has not led to increased economic growth (i.e. NAFTA has failed to deliver benefits to the economcy as a whole outside of elite sectors – the ones who pushed hard for NAFTA.).

    Accoding to the Economist, most Mexicans have already figured this out. As of 2003 only 29% of Mexicans interviewed said that NAFTA has benefited Mexico; 33% thought that it had hurt the country and 33% said that it had made no difference

    As of 2006, according the IMF's World Economic Outlook, Mexico's GDP since NAFTA grew by an average annual rate of 2.9 percent. This translates into per capita GDP growth of 1.3 percent a year. This is weak growth for any country, but it is especially weak for a poor country. (Mexico had per capita GDP growth of almost 4.0 percent annually from 1960-80.)

    These numbers are reflected in the increasing numbers of Mexicans whoi have fled to the US in desperation. When NAFTA was signed, there were 2.4 million undocumented Mexicans in the U.S. More recent data shows that number at 4.8 million

  • August 24, 2010 at 8:18 pm

    And no one should need an explanation why targetting infants – as the Republicans woudl like to do – is repugnant.

  • August 26, 2010 at 11:07 am

    I sympathize with the intentions expressed in this article and the comments that attend it. However, for those of us who live on the border, some of the outcomes of what is discussed here are more complicated that what appears in this article. I live in Laredo, Texas along the border. Ours is a poor community. About 30% of us live below the poverty line. Income per capita here is 57% of the U.S. average. Our Laredo Independent School system reflects the economics of this area. We are inseparable from Mexico here. We do have people coming across the Rio Grande to attend our public schools, which are already heavy on students and light on tax revenues. I understand and applaud the motives of these students' parents. But this is a financial problem, and not one of mean-spiritedness. Mexico stretches us thin. It is not for me to say that it is a bad thing to have what some refer to as anchor babies. I applaud the motives and I cannot tell you what your values ought to be. But the dismissive remarks that Professor Suro makes do not square with our experiences here. ,

  • August 26, 2010 at 1:26 pm

    Mr. Gruben:
    If you want living standards to improve in the US – especially in border communities – then they will have to improve in Mexico. Agreements like NAFTA were implemented to stunt wage growth in ALL THREE participating countries. And the data clearly shows that they have worked in undermining workers' bargaining power in all three countries on behalf of the business interests who wrote and pushed these agreements.

    I agree that the US, like any country, has the right to restrict how many new workers it is willing to accept. However, making scapegoats out of illegal workers will undermine legal US workers even further, by making illegal workers even more vulnerable – and therefore exploitable – than they already are.

  • August 27, 2010 at 8:59 pm

    Maybe we should make a deal with Mexico. … We take the illegals and they forgive the debt. maybe that;s why Obama is bowing….


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