"Anchor Babies" and Automatic Citizenship - Is it really Constitutional?

I have recently been drawn into a very interesting and informative discussion on the question of whether the "anchor baby" phenomenon is in fact a loophole in the U.S. Constitution, or a mistake created by a flawed or possibly artificially contrived understanding of the text of the 14th Amendment to the U.S. Constitution.

To be sure, the plain language of the Amendment seems to be pretty clear: that is, until one begins to read it carefully and to question one of the less-than-obvious phrases which is typically passed over in discussions of the applicability of the amendment to foreigners' children born here.

Here is a partial text of the Amendment:

"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. "

The first phrase would seem to be a slam dunk for the "anchor crowd" - "All person born" would seem to take in even illegals. But the catch is in the phrase "and subject to the jurisdiction thereof," The "subject to" phrase is an integral part of the sentence and cannot be parsed out as applying to another context. Therefore the phrase "all persons born" must be understood in the context of the modifying phrase "subject to the jurisdiction thereof." A foreigner (and his or her children born) is not "subject to the jurisdiction of "the United States" in the sense of the Fourteenth Amendment, and therefore is excluded from the application of this Amendment.

I would argue that the language of the Amendment is easy to misunderstand at this point because it is not obvious what the jurisdiction phrase refers to. After all, aren't all persons who are physically in the territory of the United States, "subject to the jurisdiction thereof" whether they are citizens or not? In one sense that is true. If they commit a crime, they will be tried because they violated the laws of the U.S. and will be tried under the jurisdiction of the government. However, taking the phrase in that way robs it of any meaningful application: it is then entirely unnecessary to the understanding of the sentence. However, its true meaning if found in understanding the context of the ratifying debate in the Senate, and specifically with reference to the words of the author of this phrase in the Amendment.

To quote a commentator in the posts following the article cited above from The East Valley Tribune: "who would know the meaning better than the person that wrote the amendment? Senator Jacob M. Howard.
During Reconstruction Howard participated in debate over the intent of the first clause of the Fourteenth Amendment to the United States Constitution, arguing for including the phrase "and subject to the jurisdiction thereof".

Howard said "[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 every other class of person." 1868

Clearly, in the historical context of the day, following the Civil War, the Amendment was crafted to correct the basic text of the US Constitution which gave blacks only partial representation and a questionable status as citizens. This Amendment sought to settle the issue of the citizenship of blacks once and for all. And it did so effectively.

But it created another issue due to the poor phrasing, or rather the later practice of ignoring the exact text of the Amendment and its originally stated intent. The author of that portion of the amendment makes that intent very clear. He says the meaning of the phrase "and subject to the jurisdiction thereof" means that only parents who are already citizens can give birth to children who automatically become citizens. He plainly meant to exclude all others.

Under the existing text and legislative intent of the 14th Amendment, foreigners were never intended to be able to travel here in order to have their babies automatically become citizens.

The present situation in which there is some judicial precedent establishing the opposite meaning and application to illegals is unfortunate, but like many things that have grown up in the interpretation of the Constitution which can be demonstrated to have turned the meaning and intent on its head, this is another instance that needs correction.

It is worth asking when did the present interpretation that illegal foreigners' babies automatically acquire citizenship begin? Was it from the very ratification of the Amendment? That clearly is not the case. I will hazard a guess that it was an outgrowth of the late twentieth century activist Judiciary. I have not researched it, and possibly I am wrong, but my instinct tells me that it wasn't always this way. Perhaps that is a question to be answered in a subsequent article.

Again, I reiterate: foreigners should not be allowed to camp out here to have their children so as to mooch off our country. If they want to become citizens, let them go through the front door, otherwise, go home, or register on a visitor visa and follow the rules. Breaking our laws is a criminal act, and no foreigner has a presumptive "right" to American citizenship - especially if they sneak into our country with larcenous intent to defraud our American political system.

I am now convinced that the 14th amendment was never intended to create the predicate for "anchor babies". The AZ political figure (Az Senator Russell Pierce) championing that cause is right on to challenge conventional "lawyer's opinion" on that matter. I appreciate him having the courage to bring up such a sensitive matter in a state over-populated with illegals. Read up on him. He is the kind of brave citizen-legislator we need in public office.