Immigration policy: By consent or geography?
Legal scholars on both sides of the current immigration debate agree that the original purpose of the 14th Amendment was to make sure the formerly enslaved African-Americans were accorded U.S. citizenship -- a policy based on ethnicity, not geography. But, as reported in two earlier columns, this writer met a well-dressed, well-spoken Latina whose business is based on geography. She picks up pregnant women who have crossed our southern border illegally and escorts them northward from U.S. hospital to U.S. hospital until they deliver a so-called, "anchor-baby" on U.S. soil.
Next, she arranges for the "chain migration" of parents and other blood relatives to support the newly minted U.S. citizen anchor baby inside the United States. Fortunately, for those who oppose the concept of anchor babies and chain migration, her business rests on a mere footnote appended by Associate Justice William Brennan to a Supreme Court decision in the 1982 case of Phyler vs. Doe and upon a very liberal interpretation of the 14th Amendment which says, "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..." [Emphasis mine.]
But what is the meaning of "subject to the jurisdiction thereof?" If a pregnant woman sneaks into the U.S., how can she be "subject to the jurisdiction" of a government that is unaware of her presence? Moreover, is she still "subject to the jurisdiction" of her native country? If so, can she be subject to the jurisdiction of her native country and the U.S., all at the same time?
While academia-nuts can debate how many of these questions can dance on the head of a pin, the remedies to the problems of anchor babies and chain migration are already present in Section V of the 14th Amendment which reads, ""The Congress shall have the power to enforce, by appropriate legislation, the provisions of this article."
Given a Republican Congress and White House, "appropriate legislation" could set aside Justice Brennan’s footnote and return immigration law to the 1884 Supreme Court ruling in Elk vs. Wilkins that no one can become a U.S. citizen without the "consent" of the United States.
Historically, consent to ethnicity, not geography, has been at the center of U.S. immigration policy. For example, in 1898, the case of United States vs. Wong Kim Ark gave the Supremes a chance to decide between birthright and Wong. Because Wong’s parents came here legally and were already legal U.S. citizens, the Supremes consented to birthright citizenship for Wong. Thus, a second ethnic group was in; however, Native Americans were still out. In fact, it was 56 years after the ratification of the 14th Amendment that that the U.S. government gave its consent for Native Americans to be U.S. citizens.
So, is "consent" or "geography" the better immigration policy? Citizenship by the conscious consent of the United States or citizenship as the result of slipping illegally over a geographical border? Viewed in that context, it is probably time for our nation to get its immigration act together and decide whether "consent" or "geography" should determine who is a U.S. citizen and who is not.
Nationally syndicated columnist, William Hamilton, is a laureate of the Oklahoma Journalism Hall of Fame, the Colorado Aviation Hall of Fame, the Oklahoma University Army ROTC Wall of Fame, and is a recipient of the University of Nebraska 2015 Alumni Achievement Award. He was educated at the University of Oklahoma, the George Washington University, the U.S Naval War College, the University of Nebraska, and Harvard University.
©2015. William Hamilton.
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