We Have Met the Other and He Is Us (Law Professors)

In the latest development in what is starting to feel like a trip  “through the looking glass” to some bizarre version of the legal world as I understood it in law school, actual, important politicians have raised the spectre of  repealing or amending or re-interpreting the Fourteenth Amendment, specifically, its provision that “[a]ll 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.”  It seems especially sad that those who want to abolish or change the long-standing, post-Civil-War principle of birthright citizenship in the United States are, mainly, Republicans: one might call the Fourteenth Amendment “one of the [Republican] party’s greatest feats,” as did the Economist in the article linked above.  In any event, the Economist article does a pretty fair job, I think, of discussing the various perspectives on the issue (including pointing out that the so-called “anchor baby” idea is almost completely a fallacy, since a child cannot petition to make his parent a citizen until after the child is 21).

If you read this blog regularly, you will not be surprised to learn that abolishing birthright American citizenship seems like a terrible idea to me.   One more sally in the current  assault against immigrants, against the “other,” along with the police checkpoints for schoolchildren walking to school near the border, the Arizona law, the “deportation madness,” and the opposition to building mosques.  What’s more, it would be a terrible development for our society, a recipe to increase crime and instability, by enlarging and making permanent the underground world of people who reside here, even were born here, but are afraid to interact with the legitimate authorities and institutions of our society.

One of the more interesting blog posts about the Fourteenth Amendment controversy was posted by three law professors (Paul Finkelman, James Anaya, and Gabriel Chin) at the Huffington Post a couple of days ago.   They offer strong, well-supported historical, legal, and political arguments against the proposal.  But what’s most striking is their personal appeal–each of these professors is himself the grandchild of undocumented immigrants.  They write,

We are struck by what the absence of birth citizenship might have meant for our parents and us, and what it might mean for others in the future. Looming is the caste problem — if the children of undocumented immigrants are not citizens, then perhaps their grandchildren and great-grandchildren are not citizens either.

This admission is a rather dramatic rhetorical move, coming from law professors in the United States.  We lawyers are trained to do just the opposite, for the most part — to craft powerful legal arguments that give the audience an image of the worst consequences of the law we oppose, while avoiding any personal or individual connection to those consequences.   So the post is interesting from a rhetorical point of view.  The historical and legal argument is strong too, though:

In the past, America has come to regret policies denying citizenship to particular groups, policies like Dred Scott, and the racial tests for naturalized citizenship in force from 1790 to 1952. These policies always rested on the idea that some immigrants — almost always non-white — would not make good citizens. Doubt about the ability of the United States to take in and benefit from every branch of the human family has always been proved wrong, and, we have no doubt, will be here as well.

I came upon another post in the same vein this week, a video on youtube, actually an 1947 U.S. War Department-produced video called “Don’t Be a Sucker” (you can see the original in the internet archive).  The youtube poster has tacked the image of a waving American flag and an admonition to “Never Forget We Are Nothing Without Equality” at the end of the War Department PSA, an addition that actually fits fairly well with the video’s heavy-handed tone.

*The terrific Deportation Madness art accompanying this post is used by permission of the artist Dmitri Jackson and the Texas Observer, where it accompanied an article with the same title, written by Melissa Delbosque.

This Post Has 9 Comments

  1. Jessica E. Slavin

    As a matter of fact, Vince, yes, I do think that anti-immigrant sentiment and activity has been on the increase in each of those places as well, at least in Australia and Western Europe. Until recently, I’d say it was much worse in those places than here. Did you see the articles this week on the expulsion of Roma from France, for instance? They are returning Roma to Romania and Bulgaria, even though they are EU citizens and will have the legal right to return immediately. The world is in the grip of this madness, certainly due to the global economic crisis.

  2. Jessica E. Slavin

    If it’s merely a desire to take care of their own, why target the Roma, specifically?

    Of course no country can absorb an unlimited flow of immigration. A big problem, though, from my point of view, is that there is virtually no legal way now for poor people to emigrate, unless they happen to qualify for refugee status. The parts of the world with better standards of living cannot, logically, block all legal means of emigration for the poor people in the parts of the world with much, much lower standards of living, and then expect respect for those laws. It’s bound to result in a black market in transporting, even trafficking, human beings; as well as people putting themselves in harm’s way out of desperation to improve the lives of their families. I always think of that song Louis Armstrong sang, “Hello Brother,” there’s a line about how everywhere in the world, every man wants a chance to give his kids a better life. That natural human drive cannot be legislated away.

  3. Tom Kamenick

    A couple thoughts

    1) “These policies always rested on the idea that some immigrants — almost always non-white — would not make good citizens.”

    I think generally the current idea of deporting -illegal- immigrants is that people willing to break and continue to break laws in order to remain here would not make good citizens.

    2) “[The Economist] point[s] out that the so-called ‘anchor baby’ idea is almost completely a fallacy, since a child cannot petition to make his parent a citizen until after the child is 21.”

    Their analysis on the issue is sparse and unconvincing. First, they call the idea of “anchor babies” “largely a fallacy” but admit 4,000 people every year avoid deportation by way of anchor babies. 4,000 people is hardly a fantasy.

    Furthermore, 4,000 people doesn’t mean very much by itself. If we tried to deport all 11 million (or however many there are) illegal immigrants one year and 4,000 of them got to stay because of citizen children, I’d agree that it wasn’t much of a problem. The real question is, of the number of people we attempt to deport, what percentage avoid deportation because of a citizen child?

    The article itself belies its own conclusion by earlier noting a study that found that 8% of all births in the country are to illegal immigrants. According to a quick check on cdc.gov, there were just over 4 million live births in the US in 2006. 8% of that number would be 320,000 citizens born to illegal immigrants every year. Every single one of those could serve as an anchor baby to protect 2 illegal immigrants from deportation. That “only” 4,000 illegal immigrants’ deportations are stopped every year because of anchor babies tells more about how frequently we attempt to deport illegal immigrants than how many illegal immigrants are using birthright citizenship.

    1. Jessica E. Slavin

      With regard to the anchor babies, the law states that the child cannot apply to be the anchor until her or she is an adult. So, I am just having trouble understanding your logic. It seems more likely that adults would want to have their child here to give it the direct benefits of citizenship, not as an “anchor.”

      With regard to the “illegal” label, and the charge that those being deported are lawbreakers, I think that I have written enough about my views on that before. You could also read the deportation madness article.

  4. Ben Reyes

    The “anchor baby” concept is a complete fallacy in my opinion. Despite the fact that the “child cannot apply to be the anchor” until the age of 21, as Professor Slavin points out, the number of those who “avoid deportation” because of an anchor baby is really a drop in the bucket compared to the number of actual deportations. Unfortunately, because deportation proceedings are shrouded in secrecy, the number of “attempted deportations” is not easily accessible.

    In FY 2009, ICE successfully deported 389,834 non-citizens from the United States. Of the 4,000 people who “avoided deportation by way of an anchor baby”, these people likely sought non-LPR cancellation of removal during their deportation proceedings. If the subject of the proceedings is not a LPR, they must show an “exceptional and extremely unusual hardship” to that US citizen child in order to remain here–a nearly impossible standard to meet. This assumes that the non-citizen is even aware of these avenues of legal recourse.

    Also, as the number of deportations continues to rise at a staggering rate (see attached link), that 4,000 cap will likely remain the same.


  5. Jessica E. Slavin


    I think that you are presenting a false dilemma. Also, I am afraid that you are more of a legal philosopher than I am. I don’t think questions like these can be answered or even usefully analyzed in the abstract. What are the circumstances that could prove it’s in “the best interest of the country” to deport poor immigrants? I’d have to understand those (and I can’t imagine them, as I haven’t seen anything convincing me it’s in our economic or political interest, and as I said I think that it is increasing instability in our society).

    And I think other countries should do the same; I don’t understand what you’re getting at about that.

  6. Jessica E. Slavin

    Again, I find the hypothetical abstraction difficult to respond to. Are they legal immigrants? If they did not have legal permission to enter, how did they enter, and how long have they been here?

    In any event, my answer is the same: a country shouldn’t deport immigrants (whatever their status) on the basis of the amount of money they have.

  7. Gordon Hylton

    Determining the original intent of the drafters of a constitutional amendment is an enormously difficult challenge for the historian.

    In law, the problem is further complicated by a lack of any consensus as to the significance of “intent” in the process of constitutional interpretation or as to whose “intent” matters most.

    It is, however, clear that at least some of the drafters and endorsers of the 14th Amendment’s Citizenship Clause did not understand it as automatically conveying citizenship upon literally anyone born in the United States.

    Based on his comments recorded in the Congressional Globe (the predecessor to the Cong. Record), Michigan Senator Jacob Howard, the author of the 14th Amendment’s Citizenship Clause, appears not to have believed that mere birth in the United States automatically carried a grant of U.S. citizenship.

    Howard proposed the Citizenship Clause as an Amendment to the previous version of the 14th Amendment on May 30, 1866. Not only were tribal Indians not covered by the provision, but it was not intended, in Howard’s view, to apply to foreign citizen who just happened to be in the United States on a non-permanent basis.

    As Howard put it, “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.” Senate Judiciary Committee Chair Lyman Trumbull of Illinois clearly supported Howard’s explanation of the provision.

    On the other hand, in the debate that followed, Republican Senators Edgar Cowan of Pennsylvania and James Rood Doolittle of Wisconsin expressed their concern that the amendment not be understood to confer citizenship on the children of gypsies or Chinese Workers in California or upon Native Americans still living in a tribal setting.

    Doolittle attempted to have the Amendment amended to specifically exclude tribal Indians from the Citizenship Clause. While Doolittle’s amendment failed, no senator spoke in favor of the proposition that the Clause would confer citizenship on Native Americans still living in tribal areas.

    Nine days after the introduction of Howard’s amendment, the Senate approved the 14th Amendment by a vote of 33-11. Howard and Trumbull, not surprisingly, supported the Amendment, but Cowan and Doolittle voted against it. The comments of Howard, Trumbull, Cowan, and Doolittle’s comments on the meaning of the Citizenship Clause can be found in the Congressional Globe for May 30, 1866 on pages 2890 through 2893.

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