Drafters of constitutional texts, be they members of the constitutional convention in 1787 or members of Congress who craft a constitutional amendment, cannot always foresee all of the nuances of governmental mismanagement and malfeasance that may follow their creations. Examples abound, especially with the 14th Amendment. It was ratified in 1868 as a post-Civil War remedy, to secure rights and protections for American citizens freed by the 13th Amendment from the scourge of slavery.

The purpose of the 13th and 14th Amendments was limited to securing these rights. Nothing appears from the events surrounding their drafting and ratification to suggest any general intent to extend citizenship to someone born in America to parents who are here illegally. Nevertheless, that is exactly what has happened at the hands of an over-zealous Supreme Court, which has promoted its own skewed social agenda over a period of decades. Consequently, in defiance of common sense and original intent, any of the between 10 and 20 million illegal immigrants in this country can have a baby who is then deemed an American citizen. These babies are called "anchor babies" because the babies' family members are not liable to be deported based on the premise that deporting family members would impose an undue hardship on the infant-citizens. Many are taking advantage of this legal loophole, and in the process, are doing much to run up our national debt. The Center for Immigration Studies says that just between the years 1997 and 2001 "immigration … increased the number of uninsured children in the United States by 700,000." The children born in these years alone cost the U.S. about $4 billion a year in Medicaid payments. And those payments are only the tip of the social welfare iceberg. This situation needs to stop.

Ignoring the Intent

The 14th Amendment provides, in part:

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.

* * *

Section 5. The Congress shall have power to enforce, by appropriate legislation, the provisions of this article.

In the recent past, judicial decisions have ignored the intent of the 14th Amendment and have subverted Section 1 of it to give citizenship to the children of illegal immigrants, encouraging mass violation of our borders and leading to subsequent huge outlays of money not only for welfare but for healthcare and tax subsidies. Also, policies of both Democrat and Republican administrations have not only ignored enforcement of immigration laws, they have actually encouraged their violation. NAFTA and CAFTA treaties, regional "free trade" agreements, have been drafted to further undermine our borders and to promote free entry into the United States by illegal aliens without any regulation or tracking. President Bush has repeatedly nurtured the promise of more amnesty, and eventual citizenship, for those who flaunt our laws and enter illegally.

In the face of these abuses of power, Rep. Nathan Deal (R-Ga.) and 45 cosponsors have introduced bill H.R. 698, entitled the "Citizenship Reform Act of 2005." It declares: "It is the purpose of this Act to deny automatic citizenship at birth to children born in the United States to parents who are not citizens or permanent resident aliens." The bill undertakes to define "subject to the jurisdiction of the United States" as that term was first used in the 14th Amendment. And clearly a bill that clarifies the meaning of the 14th Amendment is justified under the law.

First, Section 5 of the 14th Amendment specifically authorized Congress to enforce the provisions of the amendment using "appropriate legislation." Second, the Supreme Court has ruled that the 14th Amendment's broad-sounding language, which seems to make any newborn who is subject to the jurisdiction of U.S. laws a citizen, was actually limited in scope. "The phrase 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls and citizens or subjects of foreign states born within the United States," stated the Court in the Slaughter House Cases (1873). The Court's declaration was not essential to resolution of the case before it, and the statement is characterized in the law as obiter dicta, and therefore not of a binding nature on later decisions to the same degree as a holding squarely affecting the merits of the case at bar; nevertheless, it did create a cloud on the meaning of Section 1 of the 14th Amendment, as to whether children born here to illegal aliens are "subject to the jurisdiction" of the United States and therefore entitled to citizenship status. Third, later decisions of the Court lost sight of the intent behind the 14th Amendment, treated the clause differently from the Slaughter House Cases, and gave the amendment its now broad interpretation. The later holdings are characterized in a publication which states well-settled principles of law in an encyclopedic fashion. Volume 3A of American Jurisprudence Second, under the topic "Aliens and Citizens," Section 1413, states:

The Fourteenth Amendment provides that 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.

This language is sensible and gives the words their ordinary and everyday meaning, but the historic purpose of the 14th Amendment is ignored — extending citizenship to former slaves — as is the amendment's intended limited scope. The language in the earlier Slaughter House Cases is a narrower construction of the amendment, but it limits its applicability to the recovery from slavery. Neither produces a realistic meaning of the amendment. Moreover, the ruling in the Slaughter House Cases does not adequately limit which children will be granted citizenship. The Slaughter House Cases point out that citizenship is not automatically granted to children born in the United States — such as children of foreign dignitaries or ambassadors. But unlike children of ambassadors, consuls, or other foreign dignitaries, the children of illegal aliens are subject to prosecution for criminal behavior; they are liable on their contracts; and they are liable for their torts. In short, they are subject to the jurisdiction of the United States, which could, technically speaking, be used as justification to make them citizens. Hence, there is a need for H.R. 698 to define "subject to the jurisdiction" in such a way as to exclude mere birth in this country to parents who are illegal aliens as a qualification for citizenship.

Congress Has the Power

It is noteworthy that the Supreme Court affirmed the power of Congress to define terms used in the 14th Amendment in the case of Rogers v. Bellei (1971):

The place of birth governs citizenship, except as modified by statute.

… the first sentence of the Fourteenth Amendment was declaratory of existing law, so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. [Emphasis added.]

H.R. 698 extends citizenship to children born in the United States of alien parents only if born in wedlock when either parent is a citizen or permanent resident alien who maintains a residence here, or to children born out of wedlock if the mother is a citizen or permanent resident alien who maintains a residence here. It also declares that it applies only to children born after the effective date of the act.

Could and should Congress make it apply retroactively to include all children ever born to illegal aliens? There is a danger to be weighed in a retroactive application of the redefinition of "subject to the jurisdiction": an overzealous, leftist federal judiciary could be inclined to find the provision in violation of some mystical "penumbral constitutional right."

Curiously, the law preserves citizenship for children born to resident aliens, those immigrants legally in the country but who are not yet citizens, though logically their children should have the same status as their parents. H.R. 698 also does nothing to rid our country of the illegal immigrants who are already here. A policy of deporting of all who enter this country illegally would do a great deal to discourage future illegal entry into America.

Unless Congress shows the courage to address the issue of the illegal alien influx and the automatic citizenship of their children who are born here, the social problem caused by uncontrolled invasion from abroad will continue to erode the social fabric of America. The Bush administration shows hostility to such a remedy, as do the socialists in both major political parties. The remedy must be demanded by the American people so ardently that politicians will find it to their disadvantage to ignore the cry for help.

Readers are encouraged to ask their congressional representative to support H.R. 698. Go to www.thenewamerican.com/congress/contact.htm for congressional contact information.