Anchors Aweigh!

I don’t much care for the term ‘anchor baby’. I find it offensive and pejorative. It means a child born in the United States to a couple who are not U.S. citizens who receives U.S. citizenship as a birthright. Many in the immigration scaremonger faction consider ‘anchor babies’ to be a problem that we need to fix by passing legislation, or, if that doesn’t pass judicial review (which it wouldn’t), by passing an amendment modifying the terms of the 14th Amendment that currently make all persons born subject to U.S. jurisdiction American citizens by birthright.

Undoubtedly, undocumented immigrants as well as immigrants on temporary visas do have children while in the United States, and those children are natural born citizens of the United States, entitled to all the same rights, benefits, and protections afforded any other American child. That really pisses off the immigration scaremongers: they complain about the cost of social services that are the right of these children, and about the supposed use of these children to ‘anchor’ the child’s family in the U.S.

Undoubtedly, some of the facts and figures that the immigration scaremongers cite are true and valid. Even if one assumes that the scaremonger are right, arguendo, it does not prove their case. The question we need to be asking is whether the solution they propose – preventing some children born in the U.S. of non-American citizens from becoming citizens by birth-right – is a proper and proportionate response to the issue. I submit that the answer to that is an emphatic, "No way!"

The Fourteenth Amendment was passed to ensure that former slaves could not be denied U.S. citizenship. The immigration scaremongers are right that the Amendment was not intended to to give the children of undocumented immigrants citizenship, but it was intended to ensure that there was no class of people living in the United States who were permanently barred from full participation in American society. Indeed, our constitution forbids any taint of blood (a legal disability based on the legal status of one’s parents) to prevent just such a class of people. Every person born in America is intended to have the same chances in life; that was the original intent of the 14th Amendment. Besides, unintended applications of constitutional principles is the rule, not the exception, in our constitutional jurisprudence. Original intent is a useful interpretive tool, but it is not dispositive.

Originalism and the current foment around the issue immigration are not a sufficient basis for changing our constitution. Our constitution should reflect our history and our deepest societal values – in short, any changes must be conservative ones; the change proposed by immigration scaremongers do neither and are not in any sense conservative.

First, lets look briefly at history. The Fourteenth Amendment did not inaugurate the practice of birthright citizenship (jus soli, or law of the soil) in the United States. Jus soli is the common law tradition we inherited from England, and applied from the very birth of this nation. The use of jus soli was not an unthinking application of received tradition, either; it defined who we are as a nation – a nation of immigrants from around the world. For most of our history the United States of America has had no immigration policy to speak of. People came here, lived here, worked here, raised their families here and those families and their descendants were unquestioningly, by right of birth in the United States, full citizens of this nation. Nobody gave leave for people to become Americans, it was something one claimed by the choices you made with your life.

Unlike many nations of the Old World, where citizenship was a matter of blood, or jus sanguinis, American citizenship was never membership in a ethnicity. Born of French parents? You are French. You were born into an extended family that owed allegiance ultimately to the monarch and later the nation state. You were given a language, a history, and an identity that would be yours for the rest of your life. And outsiders need not apply. You can’t become French just by moving to France, or being born in France; you might achieve the prize of French citizenship, but you would still likely not be truly French.

Being American was never like that. Such a system is anathema to the feral, synchretic, robust mongrel hybrid that is the American character. It didn’t matter where you came from, what language you spoke, or what god you worshipped, the intentional act of coming to America and living as an American made you American. And it sure as hell made your children American. You were not French or Italian or Polish or Irish just because your parents were if you were born in the United States, and it sure as hell didn’t make your children anything but American. America claimed everyone who came, and everyone born American on American soil, for itself. The pluralism that this history has engendered has always been unwelcome, uncomfortable, and deplored by the status quo ante, but it made America a great world nation. It made us the universal nation, to which anyone could aspire to belong, and all could emulate. It gave us a hybrid strength and adaptability none could match. It made us what we are. And that’s what the immigration scaremongers reject. They reject America and Americans.

Being American is a state of mind, an idea, a dream, a promise – one of the most powerful in the history of mankind. The idea of America is universal. It doesn’t belong to a chosen race, a select few that speak the right language, worship the right god, or who have the right documentation. America has always been too big for that. America is a prize to be claimed by the lucky and the bold. American is a new thing in the world: an intentional community bound together solely by a collective will to live free and to become our best selves.

To change this bedrock principle – that being American is universal idea with universal appeal – would be to destroy the soul of the American nation.

But even the soul of our national identity is not enough to dispose of the ‘anchor baby’ ‘reforms’ offered by the immigration scaremongers, who clearly think American citizenship to be a much cruder thing than the rock and roll dream it is meant to be. For that, one must examine the practical effects of the ‘reforms’ they propose.

Instead of children of immigrants becoming citizens by right of birth, let’s assume that the immigration scarecrows get what they presumably want and these children are not given American citizenship. What would be the result? Would it be easier to deport them? Of course. Would it be easier to deport their parents? Maybe, but not as much as the scaremongers would like you to believe. ‘Anchor babies’ can’t sponsor family members for immigration until they are 21. Nor are the rights of a minor child who is a U.S. citizen violated by deporting his non-citizen parents (Coleman v. U.S.), and parents get no special treatment by the INS as a result of having a citizen child.

What would certainly happen is that access to health care, including maternity care, nutritional support and other benefits that inhere in the child as a result of its citizenship would be withdrawn. However, many other rights, such as the right to an education, the cost of which the scarecrows begrudge, could not be withdrawn based on national origin or immigration status (Plyler v. Doe). So the financial impact of withdrawing these children’s right to citizenship would be much less than you would be led to believe. Given that the cost of many of the benefits that could be withdrawn from the child may be more than exceeded by deferred costs down the line, such as emergency medical care or incarceration, total costs to the taxpayer could actually increase.

Now, we could posit a perfectly brutal and nasty political environment in which the 12-15 million undocumented aliens are rounded up, uprooted from their communities, their jobs, and their lives, to be herded into camps and deported. I’m sure the scaremongers lay awake at night, fevered with imagining such a monstrosity. Personally, I don’t think Americans would or even could stand for such a program. If you believe that such a thing could happen and that Americans would stand still for it, so be it – but you have a much different view of the American character than I.

So, I would posit instead that most undocumented immigrants will probably remain in some way, either continuing underground or perhaps as guest workers. If not provided with a path to earned citizenship, with their children having been stripped of theirs, and, presumably, those children’s children likewise not eligible for citizenship, what stake in our society do they have? The prospect of their children and grandchildren living in an alien land as perpetual second-class citizens? Maybe returning home would be more attractive; that’s certainly what the scaremongers hope.

But, better perhaps an underclass in America than returning home to penury. So let’s imagine most stay, though with much reduced prospects, and no chance to create their own American dreams. Suddenly America has a new caste of people who, solely by reason of the circumstances of their birth, are permanently unable to participate fully in the nation they will call home. Is that what we want for America?

The French have tried this bit of social engineering. Guest workers having no chance to integrate, and no incentive to try, perpetually the economic losers, unable to have a say in the politics of their home nation. The French call them pied noirs, or black feet – their version of the hateful ‘wet-back’; they are the permanent underclass of France comprised mainly of north African immigrant guest workers. This the bold and hopeful vision for the future of immigration in America the immigration scaremongers recommend: the failed and discredited policies of the French.

Rather than examining the likely long-term effects of their proposed policies on real human beings, real institutions, and the character and values of our nation, the scaremongers instead simply attack any legal right or tradition that they think could conceivably advance their cause. In this frenzy to reshape the traditions and laws of our nation, conceived at our birth and fostered over generations, the scarecrows seek a revolution in our relationship to world and to our nationhood. They haven’t any concept of what they seek to destroy, except that it is identified with the hated ‘other’, which they fear more than anything because they foolishly believe that they own the American dream, and that only they – the ‘real’ Americans – get to say who can claim it. Nothing could be more obnoxious to the time-honored and far-sighted traditions of this nation. Nothing could more effectively denigrate the American dream. Nothing could be less conservative of everything we love about this nation than the future they are slapping together out of hatred, fear, and ignorance.

America must not have a caste system. That is corrosive to our national character and obnoxious to the foundational principles of our constitution. America is a community of free and legally equal people, regardless of their origin. Despite our many differences we grant every member of our community the same rights under the law and the opportunity to participate in the life of the nation as a citizen. If any member of our society is forced to engage in civic life as less than an equal solely by reason of her birth, that coarsens the nature of our politics with the envy of the outsider and the cruelty and condescension of the favored. This is the same reason I oppose in principle what many liberals embrace as a panacea for undocumented immigration: a guest worker program. A system of seasonal and temporary work visas is sensible and would help align our immigration policy with the needs of our economy, but I don’t think that guest workers are a permanent part of a solution to immigration. Certainly, the children of those here on guest worker visa must continue to enjoy U.S. citizenship so that they may be full members of the greatest experiment on earth.

If you enjoyed this post, you might also find the following articles of interest: The Real American Immigration Consensus,  The Economics of Mexican Immigration by Karl Reiner, Reconsidering a Guest Worker Program, Immigration’s Neglected Roots, Open Doors Don’t Invite Criminals, and The Immigration Issue in Arizona by Karl Reiner.