Supreme Court Justice Brennan’s Footnote Gave Us Anchor Babies (Ann Coulter) (2010)

humanevents ^ | Wednesday Aug 4, 2010 | Ann Coulter

[dennisw]

Democrats act as if the right to run across the border when you’re 8 1/2 months pregnant, give birth in a U.S. hospital and then immediately start collecting welfare was exactly what our forebears had in mind, a sacred constitutional right, as old as the 14th Amendment itself.

The louder liberals talk about some ancient constitutional right, the surer you should be that it was invented in the last few decades.

In fact, this alleged right derives only from a footnote slyly slipped into a Supreme Court opinion by Justice Brennan in 1982. You might say it snuck in when no one was looking, and now we have to let it stay.

The 14th Amendment was added after the Civil War in order to overrule the Supreme Court’s Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves — many of whom had roots in this country longer than a lot of white people.

The amendment guaranteed that freed slaves would have all the privileges of citizenship by providing: “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 drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. (For my younger readers, back in those days, people cleaned their own houses and raised their own kids.)

Inasmuch as America was not the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it’s amazing the drafters even considered the amendment’s effect on the children of aliens.

But they did.

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: “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.”

In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians — because they were subject to tribal jurisdiction, not U.S. jurisdiction.

For a hundred years, that was how it stood, with only one case adding the caveat that children born to LEGAL permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)

And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that “no plausible distinction with respect to Fourteenth Amendment ‘jurisdiction’ can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.” (Other than the part about one being lawful and the other not.)

Brennan’s authority for this lunatic statement was that it appeared in a 1912 book written by Clement L. Bouve. (Yes, THE Clement L. Bouve — the one you’ve heard so much about over the years.) Bouve was not a senator, not an elected official, certainly not a judge — just some guy who wrote a book.

So on one hand we have the history, the objective, the author’s intent and 100 years of history of the 14th Amendment, which says that the 14th Amendment does not confer citizenship on children born to illegal immigrants.

On the other hand, we have a random outburst by some guy named Clement — who, I’m guessing, was too cheap to hire an American housekeeper.

Any half-wit, including Clement L. Bouve, could conjure up a raft of such “plausible distinction(s)” before breakfast. Among them: Legal immigrants have been checked for subversive ties, contagious diseases, and have some qualification to be here other than “lives within walking distance.”

But most important, Americans have a right to decide, as the people of other countries do, who becomes a citizen.

Combine Justice Brennan’s footnote with America’s ludicrously generous welfare policies, and you end up with a bankrupt country.

Consider the story of one family of illegal immigrants described in the Spring 2005 Journal of American Physicians and Surgeons:

“Cristobal Silverio came illegally from Oxtotilan, Mexico, in 1997 and brought his wife Felipa, plus three children aged 19, 12 and 8. Felipa … gave birth to a new daughter, her anchor baby, named Flor. Flor was premature, spent three months in the neonatal incubator, and cost San Joaquin Hospital more than $300,000. Meanwhile, (Felipa’s 19-year-old daughter) Lourdes plus her illegal alien husband produced their own anchor baby, Esmeralda. Grandma Felipa created a second anchor baby, Cristian. … The two Silverio anchor babies generate $1,000 per month in public welfare funding. Flor gets $600 per month for asthma. Healthy Cristian gets $400. Cristobal and Felipa last year earned $18,000 picking fruit. Flor and Cristian were paid $12,000 for being anchor babies.”

In the Silverios’ munificent new hometown of Stockton, Calif., 70 percent of the 2,300 babies born in 2003 in the San Joaquin General Hospital were anchor babies. As of this month, Stockton is $23 million in the hole.

It’s bad enough to be governed by 5-4 decisions written by liberal judicial activists. In the case of “anchor babies,” America is being governed by Brennan’s 1982 footnote.

[Theodore R.]

“Justice” Brennan: A Democrat gift of “Republican” Dwight D. Eisenhower!

[Tennessee Nana]

PING

[taildragger]

WTH, is the 14th a role of Duct-Tape and the Supreme’s Red Green? They used it for Anchor Babies, Roe v Wade and now Gay Marriage when it was supposed to be a bridge out of Slavery. Tell me where I am wrong here....

[EternalVigilance]

"I do not forget the position assumed by some that constitutional questions are to be decided by the Supreme Court, nor do I deny that such decisions must be binding in any case upon the parties to a suit as to the object of that suit, while they are also entitled to very high respect and consideration in all parallel cases by all other departments of the Government. And while it is obviously possible that such decision may be erroneous in any given case, still the evil effect following it, being limited to that particular case, with the chance that it may be overruled and never become a precedent for other cases, can better be borne than could the evils of a different practice. At the same time, the candid citizen must confess that if the policy of the Government upon vital questions affecting the whole people is to be irrevocably fixed by decisions of the Supreme Court, the instant they are made in ordinary litigation between parties in personal actions the people will have ceased to be their own rulers, having to that extent practically resigned their Government into the hands of that eminent tribunal."

-- Abraham Lincoln, First Inaugural

[BenLurkin]

Footnote?

Are holdings ever in footnotes?

It is mere dicta isn’t it?

[SatinDoll]

I wouldn’t bet it is even dicta, much less a holding.

[pgyanke]

I pointed out on another thread that the jus soli argument makes for schizophrenic international law.

The 14th Amendment describes parents of citizens as "subject to the jurisdiction thereof". Those who celebrate birthright citizenship read that as anyone who can be arrested for transgressing local laws. Since that applies to all persons in all places, that argument effectively erases all borders. That argument's logical conclusion is that the drafters of the amendment wrote this clause as a superfluous statement since it applies universally. They did not. This clause has a very important purpose. "Subject to the jurisdiction" has more meaning than "able to be arrested." It's a test of citizenship. Citizens are subject to the jurisdiction in that they are full members of the governing body... they vote, serve, et al. You wouldn't be subject to taxes or jury duty in the neighboring county but you would be subject to arrest for transgressing the laws. "Subject to the jurisdiction" is larger than just the penal code.

If we take the birthright citizenship crowd at their word, then international law makes no sense. What purpose do passports serve? Embassies? Obviously, embassies and passports exist to identify sovereign loyalties and to service citizens of foreign nations. Why is an embassy necessary on foreign soil? Because foreigners are not subject to the jurisdiction of a foreign government.

“Every Person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States. 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 accredited to the Government of the United States, but will include every other class of persons.”

--Senator Jacob Howard, co-author of the citizenship clause of the 14th Amendment, 1866.

[elpadre]

So, bring another case to the Supreme Court and reverse that obscene clause.

[Will88]

I bet if we could get to the clear intent of the 14th amendment, it was intended to only apply to Americans alive at the time of passage, to clarify the status of freed slaves and their children, not to establish some right to carried forward forever to people not yet born. Birthright citizenship of those born of US citizens was well established in the constitution and in law.

Congress has the constitutional power to regulate immigration and naturalization and foreigners entering illegally for any reason fall under those laws passed by Congress.

[BuckeyeTexan]

Chief Justice Marshall wrote the following in The Exchange v. McFadden. Many citizenship cases have cited it or cases that rely on it, including Wong Kim Ark, Elk v. Wilkins, and Minor v. Happersett.

When private individuals of one nation spread themselves through another as business or caprice may direct, mingling indiscriminately with the inhabitants of that other, or when merchant vessels enter for the purposes of trade, it would be obviously inconvenient and dangerous to society, and would subject the laws to continual infraction and the government to degradation, if such individuals or merchants did not owe temporary and local allegiance and were not amenable to the jurisdiction of the country. Nor can the foreign sovereign have any motive for wishing such exemption. His subjects thus passing into foreign countries are not employed by him, nor are they engaged in national pursuits. Consequently there are powerful motives for not exempting persons of this description from the jurisdiction of the country in which they are found, and no one motive for requiring it. The implied license, therefore, under which they enter can never be construed to grant such exemption.

[Gritty]

This entire article needs to be bumped over and over again...

[SharpRightTurn]

Nice treatment of this constitutional provision by Ann. No, a constitutional amendment is not necessary to stop recognizing anchor babies as U.S. citizens. Just a president who will faithfully execute the laws of the land.

[DB]

Try again. It meaning and intention was clear.

[Erik Latranyi]

The Supreme court was never to have these powers.

[Hetty_Fauxvert]

Bump!