One upside of presidential election seasons is that important issues that have been swept under the rug make it into the public discussion – if only as political footballs. The illegal immigration problem is one. You can argue—and many have argued impressively—that the man now occupying the White House offered a form of amnesty to the children of illegal immigrants as a political ploy. Anchor babies, and the DREAM Act, are worth discussing, no matter what made anyone start discussing them.

The first DREAM Act (Development, Relief and Education of Alien Minors) came from Senators Dick Durbin (D-IL) and Orrin Hatch (R-UT). In the 112^th Congress, Durbin and Rep. Howard Berman (D-CA) introduced another version. Senator Marco Rubio was working on a third version when Barack Obama signed his most recent Executive Order.

The Fourteenth Amendment

The US Constitution. Photo: National Archives of the United States

Before intelligent discussions and possible solutions can happen, all aspects of the problem should be on the table. For instance, illegal aliens have abused the 14^th Amendment to bestow American citizenship on their offspring who they birthed here. Congress proposed the Amendment after the Civil War to protect the children of slaves and to make them citizens. It reads:

All persons born or naturalized in the United States and subject to the jurisdiction thereof [emphasis added], 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.

Like it or not, the clear reading of the Amendment seems to allow anchor babies – or does it? The phrase subject to the jurisdiction thereof is key – especially in the context of the Civil Rights Act of 1866, which preceded it by two years. Of course you can argue that anyone living here is subject to our jurisdiction – and that would be a valid argument. But it would not be a winning argument. There may be a little bit more to the argument against anchor babies than appears on the surface.

Anchor babies in early history

To understand some of the finer nuances of this Amendment, we need to go back to the precursor of the 14 Amendment, the Civil Rights Act of 1866:

An Act to protect all Persons in the United States in their Civil Rights, and furnish the Means of their Vindication.

It reads:

Be it enacted by the Senate and House of Representatives of the United States of America in Congress assembled, That all persons born in the United States and not subject to any foreign power [emphasis added], excluding Indians not taxed, are hereby declared to be citizens of the United States; and such citizens, of every race and color, without regard to any previous condition of slavery or involuntary servitude, except as a punishment for crime whereof the party shall have been duly convicted, shall have the same right, in every State and Territory in the United States…

The point is that to qualify for citizenship on the basis of being born here, you cannot be under the jurisdiction of or subject to any foreign power.

For instance, the 30^th article in the Mexican Constitution attributes Mexican nationality to a person who was born abroad if one or both parents were Mexican nationals or naturalized. There are ways to alter this by positive act, and change allegiance. But simply being born in another country is not one of them. The Mexican Constitution goes further: such a person of Mexican nationality born abroad cannot claim protection from a foreign country. The latter is meant to describe the person’s relationship to the State. That State considers them Mexicans and subject to Mexican law. This subjection to Mexican law clearly negates the conditions emphasized in the Civil Rights Act of 1866.

Summary

Therefore, in both the 14^th Amendment and the Civil Rights Act of 1866 it is clear that anchor babies who are born to Mexican nationals are not American citizens by virtue of being born here.

A solution to this problem exists, but not in the 14^th Amendment. Not only is that not possible but it is an insult to the heritage of the descendants of slaves. They did not break our laws to come here. Someone brought them here, forcibly and diabolically. Giving them citizenship was the right thing to do after they endured so many wrong things. By contrast, illegal immigrants come here willingly, and break our laws to do it. One situation cannot justify the other. The illegal immigration problem will continue as long as we lack real leadership in this country. And it will continue until our elected officials realize that they are playing with people’s lives and not political footballs.

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