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Guest opinion

Opinion: On anchor babies and nativist pretzel logic

CNN:

A proposed Arizona law would deny birth certificates to children born in the United States to illegal immigrant parents. 

KPHO.com:

Russell Pearce, the Arizona State Senator who plans to introduce this law, has stated,"I also intend to push for an Arizona bill that would refuse to accept or issue a birth certificate that recognizes citizenship to those born to illegal aliens, unless one parent is a citizen."

If you’re anything like me, this news was greeted by a classic jaw drop. WTF? Can they DO that? Also if you’re like me you immediately ran to your pocket edition of the U.S. Constitution to look it up. Of course, the language of Section 1 of the 14th Amendment is pretty clear:

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. 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.

Ok, phew, now we all know that this is a blatantly overt attack on the 14th Amendment and will probably not fly.

But imagine for a moment that for some bizarre reason this were to go through our very right-wing Arizona Legislature. Now stretch your mind a little further and imagine that our right-leaning SCOTUS were to uphold it in some nightmarish bad movie kind of way . . . then it becomes apparent that this proposed legislation has some very disturbing and bizarre consequences that nobody has discussed yet.

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I've listened to the arguments from the other side, and they maintain that the 14th Amendment was never meant to provide citizenship for illegal alien children; it was merely a tool to make citizens of freed slaves. They claim that since there was no such thing as an "illegal alien" when the amendment was ratified then it somehow doesn't apply to all people born on our soil, it only applies to children of people who are citizens already.

Per CNN:

John Kavanagh, a Republican state representative from Arizona who supports the proposed law aimed at so-called “anchor babies,” said that the concept does not conflict with the U.S. Constitution.

"If you go back to the original intent of the drafters . . . it was never intended to bestow citizenship upon (illegal) aliens," said Kavanagh, who also supported Senate Bill 1070 – the law that gave Arizona authorities expanded immigration enforcement powers.

Just for kicks, let’s just embrace this pretzel logic (and by “pretzel logic” I mean Kavanugh, and Pearce’s bizarre premise that our constitution was not intended to be an enduring document that covers our rights over time, despite subsequent laws that are passed) and run with this idea for a moment.

If you strip the part of the 14th Amendment out that states “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States” and somehow decide that this no longer applies to a certain “type” of person, i.e. the children born of anyone who is not already a citizen of this country as Pearce has stated, then this will also mean that not only illegal alien children are stripped of their citizenship, but any children of legal resident aliens as well, since their parents were not citizens at the time of birth. So how far back do we start stripping citizenship? Back to when the first immigration laws were enacted?

Per Wikipedia, the first U.S. immigration law was enacted back in 1790, which was called the Naturalization Act of 1790, "which restricted naturalization to 'free white persons' of 'good moral character' who had resided in the country for two years and had kept their current state of residence for a year ."

This was followed by the 14th Amendment to the Constitution that was enacted to allow all persons born on U.S. soil to become full citizens. There was a challenge to the citizenship clause of 14th Amendment as far back as 1898:

According to Wikipedia, the 14th Amendment "was interpreted by the Supreme Court in the 1898 case United States v. Wong Kim Ark as covering everyone born in the U.S. regardless of the parent’s citizenship, with the exception of the children of diplomats."

If we look at the case of United States v. Wong Kim Ark an interesting parallel emerges to Pearce and Kavanagh’s attempt to override the 14th Amendment.

Wong Kim Ark was born in the U.S. to Chinese immigrant parents who were not citizens. The Arks were not allowed citizenship because U.S. law at that time excluded all Chinese from being able to become naturalized. When Wong left the country to travel to China he was denied reentry on his return to the U.S. based on the immigration status of his parents and the Chinese Exclusion Act of 1882.

The argument that was used by the plaintiffs was that Ark was born to people who were subjects of the Emperor of China and therefore Ark too was subject to China and not the U.S. (which is another argument that the Anchor Baby law proponents try to use to back up their case). This was successfully challenged in the Supreme Court and Wong Kim Ark was recognized as the citizen that he was.

Because U.S. law specifically banned immigrant Chinese from becoming citizens at the time of Wong’s birth, yet the 14th Amendment was held up as allowing citizenship to a child born of non-citizen Chinese aliens, it appears that the assumptions that our current laws are not in keeping with the 14th Amendment fall flat.  It should also be pointed out that Wong Kim Ark's case was subsequently cited in two major Supreme Court decisions on citizenship, both of which were ruled in favor of the people claiming their right to citizenship under the 14th Amendment. 

But again, if we’re going with the pretzel logic of Russell Pearce, John Kavanagh and other nativist teachings, we will have to strip the citizenship of all first-generation Americans whose parents had not yet received their citizenship papers at the time of their birth, going back to 1790. Not only that, but if two first-generation people were to marry, their second-generation children would also not be citizens. And so on . . .

I’m thinking this covers an awful lot of people.

Amy is an Arizona resident whose passion about human rights has evolved into activism since the passage of SB 1070. She’s originally from Maine, where she was part of the tourism industry. She now restores homes in Southern Arizona, and she and her husband are living in her latest project in the foothills of the Superstition Mountains. She is working on a memoir of her early life on an isolated Maine island.


Amy is an Arizona resident whose passion about human rights has evolved into activism since the passage of SB 1070. She’s originally from Maine, where she was part of the tourism industry for over 20 years. Her writings have appeared in the Tucson Sentinel, Truthout, and Open Salon. Her full-time work is as a volunteer and clinic director at a nonprofit free clinic she co-founded in downtown Phoenix.

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Jun 16, 2010, 9:47 am
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Great explanation and argument Amy. The idea that “it was never intended to bestow citizenship upon (illegal) aliens” is a perfect example of the kind of fuzzy logic offered up by people who’s real intent is to create an election-year wedge issue.

—Jimmy

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Amy McMullen