“Sneak in for anchor baby privilege that doesn’t really exist,”

14th Amendment:

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.

This is pretty clear to me: A child born in the United States is a Citizen of the United States and cannot be deported with their parents, because CITIZENS cannot be deported to another country. Nor can a minor child who is a citizen of the United States be denied equal protection of the law or the b enefits of living in the United States.

The question becomes, if a natural born citizen of the United States is a minopr child, and is DEPRIVED of the companionship of his/her parents who have been deported because they are illegal aliens, has that child’s rights been violated?

The “anchor baby privilege” is not a “privilege” — it is a Constitutional right, unfortunately.

Of course, since the Abortion Party is now in power, they COULD mandate forcible abortion of non-born children of illegal aliens, which would solve the problem. Except that they’d lose a future voter. Oops. Never mind.

georgej on May 20, 2007 at 4:54 PM

No, you just don’t know basic hermeneutics. Illegals who have kids here have children who still are not subject to the jurisdiction of the State, because their parents are breaking the law.

And

As an original matter, mere birth on U.S. soil alone was insufficient to confer citizenship as a matter of constitutional right. Rather, birth, together with being a person subject to the complete and exclusive jurisdiction of the United States (i.e., not owing allegiance to another sovereign) was the constitutional mandate, a floor for
citizenship below which Congress cannot go in the exercise of its Article I power over naturalization.

The presumption is that a person born in the United States IS subject to it’s jurisdiction, absent either renunciation, voluntary service in making war upon the United States, relocating outside of the country to avoid capture or evade prosecution, and other clear indications that the individual does not recognize or accept jurisdiction of the United States.

In other words, it is presumed that a person born in the United States or is naturalized accepts jurisdiction unless it be proven otherwise.

The citation of Scalia’s dissent from the testimony of Dr. John C. Eastman, Professor of Law, Chapman University School of Law deals with the Yaser Hamdi, an enemy combatant fighting against the United States in Afghanistan, who, after capture, claimed (via his lawyers) American citizenship due to being born in the USA, and the protection of the Bill of Rights. The USSC affirmed his rights. While I personally believe that Hamdi de facto renounced his citizenship by fighting against the United States on behalf of the Taliban and Al Qaeda, and that he actually never accepted jurisdiction of the United States after his parents moved back to Saudi Arabia, and that while I agree with Scalia that Hamdi cannot avail himself of the 14th Amendment, it appears that the Supreme Court saw it differently. By definition, a dissent comes from the LOSING side in a court case and has no force of law.

But in the case of “anchor babies” the burden of proof that the child is NOT subject to the jurisdiction of the United States falls upon the government. The government has to prove that the child, himself, has NOT ONLY NOT ACCEPTED jurisdiction, but has accepted foreign jurisdiction, because he is the putative citizen involved, not the parents.

The status of the parents who are, indeed, law breakers, is really not relevant. In America, we do not visit the sins of the parents upon their children. That’s called “corruption of blood” and runs directly up against the concept of “innocent until proven guilty.”

Given the current state of things, I cannot see how a so-called “anchor baby” can be denied citizenship. I don’t know how the government can prove that a child born here has refused jurisdiction of the United States or accepted foreign jurisdiction. Being born of illegal aliens inside the United States, but not being subject to the jurisdiction of the United States absent ANY objective evidence to support it, is a “theory” that is debunked by case law. Unfortunately.

In fact, if I were an illegal alien whose child was born in the United States, the very first “nursery rhyme” I’d teach the kid is the Pledge of Allegience. And I’d have him recite it infront of witnesses. THAT would cement the citizenship of the child because it would be proof that he accepts jurisdiction of the United States.

I don’t really like it either, but absent an amendment to the Constitution, I think we’re stuck with it.

It’s best to intercept incoming illegal aliens at the border and not give them a chance to drop their “anchors” here in the first place.

georgej on May 21, 2007 at 4:14 AM

csdeven asks: “Why does a person who commits the act of enter this country illegally get to benefit from that crime just because they happened to give birth within it’s borders?”

Did the child commit a crime by being born in the USA? I think not. How could an infant commit a crime by being born? Maybe in some other country, but not in America — not yet at least.

The 14th Amendment says that the child is a US citizen. There is no question about accepting the jurisdiction of the United States because it is assumed unless the individual renounces it.

Now, your point is that the parents should be able to benefit from having a child born in the USA when they themselves violated the law to enter the United States illegally.

I agree that criminals should not be allowed to profit from their crime. But this isn’t selling prison paintings (John Wayne Gacy), or writing a book in prison. The child has committed no crime, and the 14th Amendment says that he is a citizen of the United States.

Now, we could, in theory, deport the parents, and put the child up for adoption. We can’t deport the child. He’s a citizen after all.

But depriving the child of his parents is a clear violation of HIS civil rights. We don’t put the children of other criminals up for adoption. In fact, it’s rather rare to terminate parental rights when the parent involved refuses his or her consent. Usually, the court fight lasts for years.

So, if you forcibly adopt a child of illegal aliens who get deported, you’ve violated the equal protection of the law provision in the 14th Amendment by treating the children of illegal aliens DIFFERENTLY from the children of other criminals.

So, how about sending the kid back with the parents?

The last time, as far as I can find out, that a NATURAL BORN AMERICAN CITIZEN WAS KICKED OUT of the United States was during the Civil War, and that man was openly a confederate sympathizer who (according to Lincoln) was engaging in sedition.

So, it is very rare for a natural born citizen to be deported from the United States. To even try to deport a natural born citizen who has not committed a crime is a violation of equal protection.

Naturalized citizens can and do have their citizenship revoked. Usually it requires that the person commits perjury on their application for citizenship as a number of former SS guards did and who were caught. This is clearly not the case of so-called “anchor babies.”

So, what to do?

If the illegal alien parents VOLUNTEER to take their American citizen child back to their home country, the child loses the PROTECTION of the United States government and loses the civil rights that are his by birthright. In addition, the child is NOT a citizen (usually) of the country his parents are citizen of, and has no rights there.

True, the child can legally renter the USA at age 18. But he has been deprived of an education at American schools, of American health care services, and any/all of the privileges of being an American citizen while he was outside the United States.

So, kicking out the parents while letting the kid stay in the USA is unconstitutional (as far as the kid is concerned, his parents have been forcibly taken away from him).

Deporting the kid with the parents is unconstitutional.

Allowing the parents to take the kid with them when the are deported is Constitutional, but why would a parent voluntarily give up the chance for their child to grow up as an American?

I’ve heard a lot about how the 14th Amendment has been misconstrued with respect to the children of illegal aliens; that it doesn’t mean what it actually says.

The meaning is quite clear to me. Once their baby is born here, absent a major reversal in case law or amendment of the Constitution, they kid is an American citizen and the parents are home free.

I’ll say it again. Catch them at the border and kick them out BEFORE they have their child upon American soil.

georgej on May 21, 2007 at 9:24 AM

csdeven: “Does anyone really think the founding fathers wanted this wording in the constitution to be applied as it is to a huge group of people that are a threat to this nation?”

Not to pick a nit or anything, but the 14th Amendment wasn’t an artifact of the Founders, but the post-Civil War era. The only thing the founders cared about, with respect to being native-born, was that you had to be a native born citizen to become either President or Vice President.

Romeo13 writes: “BUT, you do realize that this will lead to a National ID card…”

Yep. Or implanted chips or tattoos, or something like this. It’s another reason to despise this legislation. I think employers are caught between the rock and the hard place on this legislation. They are expected to not hire illegals (and will be punished if they do), but currently, they have no way to determine if a person REALLY is legal or not. They can check with the Social Security administration and all the SSA will say is that the SSN is valid or not. But as the false ID industry is STEALING valid SSNs when they forge SSN cards, this is useless. So, expect the lobbying to begin in earnest to create a “tamper-proof” national ID card, issued by the federal government. The attempt to force the states to issue such identity cards using drivers licenses or state ID cards has already failed: At least one state has told the feds to stuff it.

Can you say: “Your paperz, pleeze?” God forbid that coming to pass. What would come next, internal passports?

Freelancer: You are correct in describing the origin of the 14th Amendment and how it applied to former slaves. However, at the time, there were no “illegal immigrants” in the USA, as that concept didn’t emerge until the 20th Century. The 14th Amendment itself was enacted to overturn Dred Scott v. Sanford where the US Supreme Court ruled that former slaves (even those manumitted or freed) could never be citizens of the United States.

You are entitled to your opinion as to what you think the phrase “subject to the jurisdiction thereof” means. I think your opinion (which I would like to see prevail) is a minority one.

The current intrepretation of that phrase is limited to the children of foreign diplomats that are born in the United States. These citizenship of those births are governed by treaty.

At the time of enactment of the 14th Amendment, the meaning of the phrase “subject to the jurisdiction thereof” really meant “not owing allegience to any to any other foreign power.” Which is where the diplomatic exception originates, I believe.

Since 1795, naturalized citizens had to openly renounce their prior citizenship of their birth country. But we do not require “native born” citizens to do so, because it is presumed that any person born in America is automatically “subject to the jurisdiction thereof.” It pretty hard to live in the United States and not be “subject to the jurisdiction thereof” in the process.

Think of the ramifications if this were not the case.

For one thing, one could intrepret it as meaning that the laws of the United States do no apply to such individuals. That would be a litteral intrepretation of not “subject to the jurisdiction thereof.”

I don’t think that would fly.

But let’s presume that your intrepretation of “illegal births” not “subject to the jurisdiction thereof” takes root.

Why stop with the children of illegal aliens? Why not require the children of NATURALIZED citizens to apply for naturalization, too. Then we’d have TWO CLASSES of citizens: Natural and naturalized. That opens the door for discrimination and guts the entire concept of “equal protection of the law,” because some citizens would be “more equal than others.” Shades of Animal Farm! I’d rather not go there, thank you.

I know, it’s not likely, but it opens the door.

If children, regardless of their parentage, can be assumed to be “illegal births” (as you suggest for the children of illegal aliens), i.e., not “subject to the jurisdiction thereof,” then the “pro-choice” people have the opportunity to extend the so-called “right” of “choice” to living babies. Right now, if an aborted baby survives the experience (and it does happen), it cannot be snuffed out like a candle. If we allow the concept of “illegal births,” than no-doubt, some ACLU lawyer will attempt to apply it to such “mistakes.” I call that infanticide. I don’t want to go there, either.

As the treaty provisions concerning the citizenship of children born in America to diplomats applies ONLY to diplomats, what would be the citizenship of such children born from illegal aliens? While some countries assume that the children of their citizens, regardless of birthplace, are also citizens, many do not. Do we create a class of stateless persons? People who are citizens of NOWHERE, because they cannot be citizens of the United States where they were born? Would they be denied the freedom to travel because they’d have no passports? Would they be allowed to own property?

Up until about a year ago, the US Supreme Court was silent about what “subject to the jurisdiction thereof” meant. They have since voted to apply the Constitution to Yaser Hamdi, a person born in the USA, but who was raised outside of the USA by his Saudi parents and who was caught fighting American troops in Afghanistan. I personally think that a person actively engaged fighting America has renounced “the jurisdiction thereof” part but that’s just my opinion, and my opinion doesn’t count.

Congress could pass a bill denying citizenship to “anchor babies” tomorrow. I’d bet money that the USSC would overturn it in short order.

I believe that the 14th Amendment needs clarification by AMENDMENT to exclude the children of illegal aliens. Absent that, the best way to avoid the problem is to ENFORCE THE BORDER and prevent them from dropping “anchor” here in the first place.

georgej on May 21, 2007 at 5:18 PM