I was recently linked to an article by Ann Coulter which offers her take on the legal history of the citizenship of illegal alien born babies under the 14th Amendment.  Her article is interesting, and quite possibly the most reasonably presented argument I’ve seen from her.  The essence of her article is to point out that anchor babies — children born of illegal aliens on US soil which illegal aliens can use as an “anchor” to tie themselves to the US — are the product of a misunderstanding about the meaning of the 14th Amendment.  As she points out, the question whether the Citizenship Clause would apply to the children of aliens came up at the time the Clause was drafted, and rejected by its author.  Unfortunately, the history on this point is not so clear as she would cause us to believe, and is, in any case, irrelevant to the text of what the 14th Amendment actually says.

The Citizenship Clause of the 14th Amendment states:

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

This clause has two essential parts.  In the first, it identifies a group of people (“All persons born or naturalized in the United States, and subject to the jurisdiction thereof”) and then grants that group citizenship.  The essential question is whether or not the children of illegal immigrants are part of the identified group of people.  Based on the text and structure of the Clause, it is apparent that they are.

The part of the Clause that identifies the group is a conjunction of two separate conditions.  To qualify, you must be a person “born or naturalized in the United States.”  Anchor babies, by their very definition, are “born … in the United States,” so they pass this first test.  Having been born in the United States, you then must be “subject to the jurisdiction [of the United States].”  If there is a reason to believe that illegal aliens are not subject to US jurisdiction, it is difficult to imagine what that reason might be.  Illegal aliens are generally expected to obey US law, are subject to arrest, and can be imprisoned — all classic indicators that illegal aliens, while in the country, are subject to US jurisdiction.

However, as Ann Coulter points out:

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: “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.”

She takes that statement as evidence that, when it comes to conferring citizenship on aliens, illegals’ babies need not apply, because the author of the Clause himself was sure that it would not be so.  Her basic argument has two flaws.  First, it is entirely possible that the Clause’s author wrote something that he did not intend; if so, that’s unfortunate, but it is the text, not the author’s intent that controls.  Second, and more importantly, his words do not say what Ms. Coulter takes them to mean.  Senator Howard is not talking about illegal alien babies; he’s talking about “aliens, who belong to the families of ambassadors or foreign ministers.”

In the constitutional analysis, the difference between illegal alien babies and foreign ambassador babies is important.  Foreign ambassadors, by diplomatic tradition and legal history, do not normally become subject to the jurisdictions wherein they perform their official duties.  This fact is the basis of diplomatic immunity, which ambassadors enjoy along with their families who join them during their travels.  For Senator Howard to say that the Citizenship Clause does not apply to “the families of ambassadors or foreign ministers,” he is not saying anything that isn’t clear from the Clause’s text.  Because they are not “subject to the jurisdiction [of the United States],” they are not part of the group that enjoys automatic citizenship.  Illegal aliens, however, have no diplomatic immunity, or any foreign immunity of any kind.  That fact leaves them in the automatic citizenship group and leaves us with anchor babies.

Ms. Coulter’s other examples of who falls into the group and who doesn’t break down along similar lines.  Native Americans are out because they are under tribal rather than US jurisdiction.  Legal immigrants are in because they have crossed into and, thus, subjected themselves to US jurisdiction.  And she finishes with a tale of welfare state horribles that have nothing to do with the constitutional question at hand.

Although it would be nice if the existence of anchor babies rested entirely on a misunderstanding of the 14th Amendment, that is, unfortunately, not the case.  By its plain terms, if you are born in the US and subject to US jurisdiction, you’re automatically a citizen.  Because babies born to illegal aliens on US soil meet both criteria, their citizenship is constitutionally guaranteed.

Tags: 14th Amendment, constitution, immigration