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The United States currently grants automatic U.S. citizenship to almost all children born in the United States, regardless of whether the parents are U.S. citizens, legal residents, temporary visitors, or illegal aliens in the United States. Some 380,000 children are born in the United States each year to illegal-alien mothers, according to U.S. Census data. The only exceptions to this automatic granting of citizenship are the children of foreign diplomats stationed in the United States, whose citizenship at birth is governed by international treaty.

"Anchor Babies"

The children born in the United States to illegal-alien mothers are often referred to as "anchor babies." Under current practice, these children are U.S. citizens at birth, simply because they were born on U.S. soil. They are called anchor babies because, as U.S. citizens, they become eligible to sponsor for legal immigration most of their relatives, including their illegal-alien mothers, when they turn 21 years of age, thus becoming the U.S. "anchor" for an extended immigrant family.

While there is no formal policy that forbids DHS from deporting the illegal-alien parents of children born in the U.S., they rarely are actually deported. In some cases, immigration judges make exceptions for the parents on the basis of their U.S.-born children and grant the parents legal status. In many cases, though, immigration officials choose not to initiate removal proceedings against illegal aliens with U.S.-born children, so they simply remain here illegally.

Thus, the U.S.-born children of illegal aliens not only represent additional U.S. population growth, but act as 'anchors' to eventually pull a large number of extended family members into the country legally. In fact, an entire industry has built up around the U.S. system of birthright citizenship. Thousands of pregnant women who are about to deliver come to the United States each year from countries as far away as South Korea and as near as Mexico so that they can give birth on U.S. soil. Some come legally as temporary visitors; others enter illegally. Once the child is born, they get a U.S. birth certificate and passport for the child, and their future link to this country is established and irreversible.

Fourteenth Amendment Debate

Birthright citizenship is based on the Fourteenth Amendment to the U.S. Constitution, which was originally enacted to ensure civil rights for the newly freed slaves after the Civil War. Section 1 of the Fourteenth 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."

A serious and scholarly debate has been on-going for years about whether illegal aliens (and temporary visitors) are, in fact, "subject to the jurisdiction" of the United States. Some scholars insist that the phrase has no real meaning of its own, but rather is essentially another way of saying "born in the United States." They believe the Fourteenth Amendment requires that any child born on U.S. soil be granted U.S. citizenship. Other scholars look to the legal traditions observed by most courts, including the presumption that all words used in a legislation are intended to have meaning (i.e., not simply be restatements) and that, if the meaning of a word or phrase is unclear or ambiguous, the congressional debate over the legislation may indicate the authors' intent. These scholars therefore presume that "subject to the jurisdiction" means something different from "born in the United States," so they have looked to the original Senate debate over the Fourteenth Amendment to determine its meaning. They conclude that the authors of the Fourteenth Amendment did NOT want to grant citizenship to every person who happened to be born on U.S. soil.

The jurisdiction requirement was added to the original draft of the Fourteenth Amendment by the Senate after a lengthy and acrimonious debate. In fact, Senator Jacob Merritt Howard of Michigan proposed the addition of the phrase specifically because he wanted to make clear that the simple accident of birth in the United States was not sufficient to justify citizenship. Sen. Howard noted that the jurisdiction requirement is "simply declaratory of what I regard as the law of the land already." Sen. Howard said that "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 accredited to the Government of the United States, but will include every other class of persons."

Sen. Reverdy Johnson of Maryland, who was the only Democrat to participate in the Senate debate, was even more explicit about the meaning of the jurisdiction requirement: “[A]ll persons born in the United States and not subject to some foreign Power -- for that, no doubt, is the meaning of the committee who have brought the matter before -- shall be considered as citizens of the United States.” Sen. Johnson's reading of the jurisdiction requirement also is consistent with our naturalization requirements. Since at least 1795, federal laws governing naturalization have required aliens to renounce all allegiance to any foreign power and to support the U.S. Constitution. Such allegiance was never assumed simply because the alien was residing in the United States; instead an affirmative oath was required.

In light of these and other statements made during the Senate debate over the Fourteenth Amendment, it appears clear that the authors intended only to grant citizenship to persons born here who were also "subject to the jurisdiction" of the United States. They understood that phrase to have the same meaning as the phrase "and not subject to any foreign Power," included in the Civil Rights Act of 1866, which these same Senators had earlier drafted. And by "subject to the jurisdiction," they meant "subject to the jurisdiction of the United States in every sense," and "[n]ot owing allegiance to anybody else."

It would be difficult to argue that illegal aliens and temporary visitors are "not subject to [a] foreign [p]ower" or that they do not "ow[e] allegiance to anybody" but the United States. The Supreme Court, however, has never decided the issue. The closest it has come is a case involving the U.S.-born child of lawful permanent residents in which, of course, it held the child to be a U.S. citizen. In the absence of a ruling by the Supreme Court, it will remain up to Congress to clarify the meaning of the Fourteenth Amendment or to accept the status quo.

 Information gathered from Numbers USA



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