‘Anchor Babies’, Donald Trump, and Changing the Constitution

Donald Trump has taken the position in his presidential campaign “that the 14th Amendment does not require automatic citizen citizenship for babies born in the U.S. of illegal immigrant parents.”

A mother should not be allowed to gain citizenship for her child (together with the benefits that accrue therefrom) by coming into the U.S. to give birth -- especially illegally.

The U.S. Supreme Court case of U.S. v Wong Kim Ark (1898) says otherwise.

In 1869, one year after the 14th Amendment was added to our Constitution, in an English case, Lord Chief Justice Cockburn wrote:

“By the common law of England, every person born within the dominions of the Crown, no matter whether of English or of foreign parents, and, in the latter case, whether the parents were settled or merely temporarily sojourning, in the country, was an English subject, save only the children of foreign ambassadors (who were excepted because their fathers carried their own nationality with them), or a child born to a foreigner during the hostile occupation of any part of the territories of England. No effect appears to have been given to descent as a source of nationality.”

Speaking for our Supreme Court, Justice Horace Gray, in Wong Kim Ark, held that the U.S. had always followed the English rule. As such, today’s “anchor babies” would automatically be U.S. Citizens.

Mr. Trump’s position, however, finds strong support in the the dissenting opinion written by then-Chief Justice Meville Fuller. That opinion was joined in by the first Justice John Marshall Harlan -- who is generally considered America’s greatest post-Civil War 19th century judge.

Chief Justice Fuller wrote the Civil Rights Act of 1866 provided: “That all persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.”

“The words ‘not subject to any foreign power’ do not, in themselves, refer to mere territorial jurisdiction, for the persons referred to are persons born in the United States. All such persons are undoubtedly subject to the  territorial jurisdiction of the United States, and yet the act concedes that nevertheless they may be subject to the political jurisdiction of a foreign government. In other words, by the terms of the act, all persons born in the United States, and not owing allegiance to any foreign power, are citizens.

“It is argued [in the majority opinion] that the words ‘and not subject to any foreign power’ should be construed as excepting from the operation of the statute only the children of public ministers and of aliens born during  hostile occupation.

“Was there any necessity of excepting them? And if there were others described by the words, why should the language be construed to exclude them?

“If the act of 1866 had not contained the words, ‘and not subject to any foreign power,’ the children neither of public ministers nor of aliens in  territory in hostile occupation would have been included within its terms on any proper construction, for their birth would not have subjected them to ties of allegiance, whether local and temporary or general and permanent.

“There was no necessity as to them for the insertion of the words, although they were embraced by them.

“But there were others in respect of whom the exception was needed, namely, the children of aliens, whose parents owed local and temporary allegiance merely, remaining subject to a foreign power by virtue of the tie of permanent allegiance, which they had not severed ....

“It was to prevent the acquisition of citizenship by the children of such aliens merely by birth within the geographical limits of the United States that the words were inserted.”

Two months after the Civil Rights Act was enacted, on June 16, 1866, the 14th Amendment was proposed, and declared ratified July 28, 1868. The first clause of the first section reads:

“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 dissenters then noted that, “The act was passed and the amendment proposed by the same Congress, and it is not open to reasonable doubt that the words ‘subject to the jurisdiction thereof’ in the amendment were used as synonymous with the words ‘and not subject to any foreign power’ of the act.”

Then-Sens. Trumbull and Reverdy Johnson explained the meaning of the words.

Sen.Trumbull said, “What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else; that is what it means.”

Sen. Johnson agreed. “Now, all that this amendment provides is that all persons born within the United States and not subject to some foreign power ... shall be considered as citizens of the United States.”

The main object of the opening sentence of the 14h Amendment was to settle the question, upon which there had been a difference of opinion throughout the country and in this court, as to the citizenship of free blacks, Scott v. Sandford, and to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States, and of the State in which they reside.

“This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof.’ The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not this subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired. To be ‘completely subject’ to the political jurisdiction of the United States is to be in no respect or degree subject to the political jurisdiction of any other government.”

Candidate Trump’s position is not presently the law. Does the Supreme Court ever overrule its prior precedents? Sometimes. It might only take one or two new justices

And “President Trump” might well be in position to appoint them. And that’s the easy way to amend the U.S. Constitution.



Posted: Saturday, September 5, 2015 11:00 pm, QCOnline.com
By John Donald O'Shea

Copyright 2015
John Donald O'Shea