A new report by Rick Folbaum of CBS’s Miami affiliate shines light upon a pressing issue all too often ignored: women flocking to the U.S. in order to take advantage of the country’s notoriously generous birthright-citizenship policy. If a woman is here on vacation, or just passing through, and gives birth to a child on American soil: Boom! Automatic citizen! It may be that neither the child nor his parents have any ties whatsoever to the United States, yet the child is now an American citizen just as if his parents had worked, paid taxes, and been part of American society for years.
These children not only reap the incalculable advantages of U.S. citizenship but, when they turn 21, can sponsor their families’ U.S. residency — hence the term “anchor babies.”
We might better call this “unconditional citizenship.” All that is required is that the child be on American soil at the time of his birth — it generally matters not who the parents are, how they arrived here, why and how long they have been here, or whether they will even remain. Never paid a single dollar of tax in the United States or worked a day here? We will confer citizenship on your child nevertheless.
To be clear, there are two instances referred to as “birthright citizenship,” one of which is fair and one of which is ridiculous.The first is citizenship obtained at birth because at least one of the parents was a citizen at the time; this is referred to as jus sanguinis (Latin for “right of blood”), and it makes sense. The other is jus soli (Latin for “right of the soil”), citizenship granted simply by virtue of the child’s being born on that territory. For good reason, most nations, including every European nation, shun the soil-based “right” and instead grant citizenship only on the jus sanguinis principle. Out of the world’s advanced countries, only two grant automatic citizenship to those born on their soil: Canada and the United States.
So how did this happen? It’s thanks to the 14th Amendment, which reads: “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.” (The language was originally intended to rightly confer citizenship on freed slaves and their children.) However, the champions of jus soli conveniently ignore consideration of the phrase “subject to the jurisdiction thereof,” as a myriad of legal scholars have questioned whether this language does, in fact, support our jus soli approach. While a tourist or undocumented immigrant is technically subject to our laws while visiting (e.g., if he commits a crime, he will be arrested), is that the same type of “subject to American jurisdiction” the 14th Amendment’s authors had in mind? Is a tourist truly subjecting himself to American jurisdiction the same way an American is, simply by vacationing here? It is hard to argue that the amendment’s authors intended the automatic jus soli, if only because they could not and did not imagine the ramifications of their confusing wording as (a) illegal immigration was not a large concern in mid-19th-century America, during a time when the nation was looking to grow and particularly seeking additional hands to cultivate lands out West; and (b) American citizenship was not so coveted back then as to warrant a trip here specifically for one’s child to obtain it. At the time of its drafting, in fact, as explained by the Heritage Foundation’s Hans A. von Spakovsky, “subject to [American] jurisdiction” meant not owing allegiance to any other country. Tourists certainly do still owe allegiance to their home country.