On Anchor Babies - Could the following law be declared unconstitutional?
Assume Congress & the Pres pass the following law:
The phrase, "All persons born or naturalized in the United States, and subject to the jurisdiction thereof," in the Fourteenth Amendment shall in all cases at law and concerning immigration, be defined as:
"All persons born or naturalized in the United States
to PARENTS who, at the time of this person's birth,
a) had officially been granted citizenship or legal permanent residency in and by the United States,
b) had sworn allegiance to the United States and affied allegiance to no other nation,
c) had proven themselves gainfully employed and financially fit to raise a child without assistance from any organization, affy
d) had provided verifiable proof that they were not guilty of any crime,
e) had registered and been accepted as a resident of the state and of the county in which the child was born and
f) by rigorous written and spoken examinations,had demonstrated a command of the English language at or above the...
f) by rigorous written and spoken examinations, had demonstrated a command of the English language at or above the average of all citizens.”
Could the Court find it unconstitutional?
NOTE: Our Notorious Justices on the Extreme Court are like the unpopular dweebs of Washington DC Jr. High. The other branches are elected by “popular” (read: I’m So Popular), but the poor impish judges are appointed. So they’re always interpreting laws as far from the stated intent as possible, obviously just to show that they can.
Still, I don’t know if the Executive and Legislative Branches are granted (or somehow denied) power to define terms and phrases in existing content of the Constitution and/or its amendments.
The 14th was a device to prevent the southern states from denying freed slaves their right to vote.
Debate continued for nearly 2 yrs in the 39th Congress, mostly because no Senators or Reps would vote "yes" till there was NO CHANCE aliens could use it to gain citizenship
(FYI: If a foreign diplomat cpl in the US has a baby, it is DENIED citizenship, yet illegal aliens' babies are, "by law" granted it? Oops!)
Also, the record of EVERY statement made 'on the floor' from 1866-'88 insisted that babies born to aliens would NOT be citizens.
The Scream Court flip-flopped the intentions of the people, as legislated by those they elected.
- Anonymous1 decade agoFavorite Answer
The actual fact is that the author of the citizenship clause of the 14th amendment , Senator Jacob Howard, argued to have the phrase "and subject to the jurisdiction of" because he wanted to make it perfectly CLEAR that the mere ACCIDENT OF BIRTH in the United States was NOT sufficient to grant citizenship.
During Reconstruction Howard participated in debate over the first clause of the Fourteenth Amendment to the United States Constitution, arguing for including the phrase and subject to the jurisdiction thereof specifically because he wanted to make CLEAR that the simple accident of birth in the United States was not sufficient to justify citizenship.
[The 14th amendment] 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 very other class of person
Despite his intention the amendment has since been interpreted to guarantee citizenship to every person born in the United States.
Citizenship and the children of tourists and illegal immigrants:
The provisions in Section 1 have been interpreted to the effect that children born on United States soil, with very few exceptions, are U.S. citizens. This type of guarantee—legally termed jus soli, or "right of the territory"— does not exist in most of Western Europe, Asia or the Middle East, although it is part of English common law and is common in the Americas. The phrase and subject to the jurisdiction thereof indicates that there are some exceptions to the universal rule that birth on U.S. soil automatically grants citizenship. Two Supreme Court precedents were set by the cases of Elk v. Wilkins and United States v. Wong Kim Ark. Elk v. Wilkins established that Native American tribes represented independent political powers with no allegiance to the United States, and that their peoples were under a special jurisidiction of the United States. Children born to these Native American tribes therefore did not qualify for automatic citizenship under the Fourteenth Amendment. Indian tribes that paid taxes were exempt from this ruling; their peoples were already citizens by an earlier Act of Congress.
In Wong Kim Ark the Supreme Court held that under the Fourteenth Amendment to the U.S. Constitution, a man born within the United States to foreigners (in that case, Chinese citizens) who were lawfully residing in the United States and who were not employed in a diplomatic or other official capacity by a foreign power, was a citizen of the United States.
Under these two rulings, the following persons born in the United States are not "subject to the jurisdiction of the United States, and thus do not qualify for automatic citizenship under the Fourteenth Amendment:
Children born to foreign diplomats;
Children born to enemy forces in hostile occupation of the United States;
Children born to Native Americans who are members of tribes not taxed (these were later given full citizenship by the Indian Citizenship Act of 1924).
The following persons born in the United States are explicitly citizens:
Children born to US citizens;
Children born to aliens who are lawfully inside the United States (resident or visitor), with the intention of amicably interacting with its people and obeying its laws.
The Court in Wong Kim Ark did NOT explicitly decide whether U.S.-born children of illegal immigrants are "subject to the jurisdiction of the United States" (it was not necessary to answer this question since Wong Kim Ark's parents were legally present in the United States at the time of his birth). However, the Supreme Court's later ruling in Plyler v. Doe  stated that illegal immigrants are "within the jurisdiction" of the states in which they reside, and added in a footnote that "no plausible distinction with respect to Fourteenth Amendment "jurisdiction" can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful."
Bottom line is the Author of the citizenship clause made it perfectly clear what his intent was.
The Supreme Court has NEVER ruled one way or the other. (how could they rule when the author made his intent clear? say Oh he really meant to say something different)
Note that the Court decided that American Indians were not granted automatic citizenship under the 14th amendment
So there you have it. My take is the 14th amendment DENIES citizenship to the offspring of illegal aliens for the reasons listed
- JBLv 41 decade ago
The law would definitely be ruled unconstitutional.
Section(1) of the 14th amendment guarantees citizenship to everyone who is born in the U.S. subject to U.S. jurisdiction (so ambassadors and their kids are not subject). Thus, b-f would be unconstitutional on their face.
However, there could be an argument for (a). If you expanded (a) to cover anyone that was in the U.S. in any legal status, instead of just those that were citizens/permanent residents, it might withstand Constitutional scrutiny since you could argue that people in the U.S. illegally are not subject to U.S. jurisdiction. I think its a weak argument since illegal immigrants are subject to U.S. laws if caught, but if the bill was passed by a wide margin in Congress, the court would be very hesitant to overturn it.Source(s): 14th amendment to the U.S. Constitution
- DARLv 71 decade ago
I don't think they have ever directly held that a child born here to illegals is a citizen. They held that a child born to legally here immigrants was a citizen, and I think there was some commentary but not a holding regarding children of those illegally here, in a different case.
However, the law should be changed if necessary, to make sure at least one parent is a citizen or legal permanent resident. Ireland was the last of the EU countries to close that loophole, and Canada has done so as well. We need to follow their common sense approach to this.
- MargaretLv 44 years ago
Arizona's banning of Anchor babies is in Time Magazine's June 11th issue. The other link talks about how many anchor babies are born in the US.
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- Anonymous1 decade ago
that was meant for the blacks back then. why do illegals do this? they have nothing to do with the law concerning black people.
- 1 decade ago
what the crap is a anchor baby if you have babies do you want someone to call your baby a anchor baby so shut up and stop complaining and get over it the law is staying so shut up you freak talking about Innocent babies .
- Anonymous1 decade ago
What do you mean by "crime"? Are you saying anyone who has a parking ticket or a DUI can't have their children be citizens of the U.S.?
- 1 decade ago
i don't know about unconstututional but it is too long
- Anonymous1 decade ago
wow, that's pretty complex.