What's the Matter With Anchor Babies, Anyway?

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New America Media, Commentary, Ian Haney-López , Posted: Jan 08, 2011

Let the campaign against “anchor babies” begin! I, for one, want to embrace this latest disparaging term.

Next up from Arizona in the campaign to demonize undocumented immigrants: an effort to restrict “birthright citizenship.” Under U.S. constitutional law, children born here are citizens here, irrespective of their parents’ citizenship. Seeking to end this purported outrage, Arizona and other states have announced plans to challenge this right, hoping to eventually end up in a fight before the U.S. Supreme Court. The more immediate goal, however, seems to be to stir up controversy.

Key to whipping up populist fervor is the specter of the “anchor baby”: the child born here to noncitizen parents, ostensibly as part of a nefarious plot to establish roots in this country, thereby securing rights to live, work, and flourish in the United States for the child and eventually the whole family.

But wait: Why aren’t we encouraging anchor babies, rather than vilifying them? Don’t we want immigrants to commit to making the United States their home, a place of firm attachments that they help build through their labor and their values, their ambition and their energy?

Which brings us to the origins of birthright citizenship. The United States has always had two traditions regarding work and belonging. In the one we regularly celebrate, we welcome those with the gumption to start a new life, promising that in exchange for help building this country, we will embrace them, or at least their children, as full and respected members of our nation. “Give me your tired, your poor, your huddled masses yearning to breathe free,” we proudly proclaim, confident that in a society unbound by caste and class, everyone has the ability to contribute and merits repayment with the dignity of belonging.

But in another, ignoble tradition, we have often betrayed that promise; for despite our aspirations of equality, we, too, remained a society obsessed with caste—in our case, defined by race. Historically we said to our supposed inferiors, “Thanks for your land and your labor, but you do not belong; you cannot be one of us.”

In the years before the Civil War, the infamous Dred Scott decision sought to protect slavery by declaring that, free or not, African Americans could never be citizens. After the war, the country adopted the 14th Amendment to secure the rights of the newly emancipated. Its very first sentence ringingly declared: “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.” Birthright citizenship entered the Constitution.

Yet caste continued. In 1884, the Supreme Court in Elk v. Wilkins denied birthright citizenship to Native Americans by manipulating the phrase “subject to the jurisdiction thereof.” Intended to refer to the children of diplomats, Elk used that technical language to ostracize what the dissent lamented remained “a despised and rejected class of persons.”

Fourteen years later, the Court reconsidered. In Wong Kim Ark, it granted automatic citizenship to children born to Chinese immigrants—persons at the time barred from entering the country and prohibited from gaining naturalized citizenship. Though they were socially reviled, the Court stopped the excommunication of their U.S.-born children.

Should birthright citizenship end up before the Supreme Court again, lawyers will reargue the reasoning of Dred Scott, Elk, and Wong Kim Ark. The narrow issue will focus on the meaning of the words “and subject to the jurisdiction thereof.” But the real issue will be whether to resurrect racial distinctions in who belongs.

Today’s hysteria about birthright citizenship and anchor babies is really about the recent wave of Hispanic and Asian immigration and their—our—future.

Not so, we’re told— this is only about people who enter the country illegally. Yet honesty requires us to recognize that today’s swirling frenzy about illegal "aliens" focuses on persons long seen as racially threatening. And it also requires us to admit that even as we encourage immigrants to come here to work, we craft laws that close routes to full membership. With the latest assault, Arizona now seeks to slam the door even on their children.

Whether “anchor baby” frightens you depends on which immigration tradition you believe in. If you’re convinced that some people are so far inferior that they can never be one of “us,” then of course the anchor baby is a terrifying spook—the same spook as the tar baby, the savage Indian, and the yellow hordes. Or, for that matter, the many European groups once barred by immigration laws as “beaten men from beaten races.”

But I aspire to the other vision, in which those who commit to make a life here through courage and hard work deserve our welcome and embrace. My mother was not a citizen when my brother and I were born here. No one in this nation of immigrants can say different, if we just look a few generations back. In our proudest tradition, we are all anchor babies.

Ian Haney-López is the John H. Boalt Professor of Law at the University of California, Berkeley School of Law, and the author of a book on race and citizenship, White by Law: The Legal Construction of Race.

Comments

Anonymous

Posted Jan 9 2011

Eloquently put, professor Lopez.

Anonymous

Posted Jan 11 2011

So of all the countries of the world, America has to accept all those who wish to live and work here.
Everybody else gets to decide that for themselves.

What's wrong with this picture?

Make no mistake, that is what you are advocating with a no-punishment, open borders policy.

--jerseycityjoan, 1-11-2011

Anonymous

Posted Jan 11 2011

So of all the countries of the world, America has to accept all those who wish to live and work here. Everybody else gets to decide that for themselves.

What's wrong with this picture?

Make no mistake, that is what you are advocating with a no-punishment, open borders policy.

--jerseycityjoan, 1-11-2011

Anonymous

Posted Jan 12 2011

all mexicans are under the jurisdiction of mexico read their constitution

Anonymous

Posted Jan 13 2011

Eric Foner put it this way: the 14th Amendment is when we decided not to be a racist country. If you want to change that, own it and proclaim your racism.

Anonymous

Posted Feb 5 2011

janice sibug f 1631 el camino real #7 tustin ca 92780 was born to an illegal alien name ligaya fabian who jumpshipped her flight at lax from germany to canada.

Anonymous

Posted Feb 7 2011

Nicely put, I do so believe that we, and our ancestors at some point were all anchor babies. Why challenge the Constitution and take away the birth right's of unborn children? I say leave it alone! Attempting to adjust what the Constitution means, is just of way for the right wing, conservative, Repulican Party to justify their racism.

Anonymous

Posted Feb 7 2011

Anonymous

Posted Mar 26 2011

Berkeley... that explains it! The 14th amendment, was intended to correct part of the "wrong" of slavery. Allowing the Children, of SLAVES, who were brought here as CAPTIVES, and AGAINST their will, CITIZENSHIP! It's been PERVERTED, by Liberals such as yourself, to mean things that IT REALLY DOES NOT! And Illegal border jumpers (do not try to dignify their illegal actions with LEGAL Immigrants, Border jumpers are NOT IMMIGRANTS! Immigration, is a LEGAL process! I know, MY PARENTS DID IT !) Sorry, but Mexican Illegals in NO WAY measure up to the SLAVES this amendment was written to benefit! So you're WRONG Professor..... funny how that "sheepskin" you have on the wall, doesn't make you SMART! it's LEGAL Immigrants who built America... what is it with you Liberals, you seem to HATE having to "obey the law"! Why is that?

Anonymous

Posted Mar 26 2011

Anonymous

Posted Mar 26 2011

Oh and by the way "Professor"..... Quit hiding behind the RACE CARD.... it's YOU who are acting Racist, by excusing an entire race's breaking of American laws... simply for THAT "races" benefit! Ever try HONEST thinking?? Also, "“subject to the jurisdiction thereof.” How the HELL can you be ANY kind of "Law Professor" and not know exactly what this means?? Mexicans, who jump border, are SUBJECTS of MEXICO! even if they are here, since they are not here LEGALLY! And you KNOW this! A Mexican National a few years back, cam into the US, killed some folks, and ran back to Mexico. the Mexican Authorities, would NOT extradite him back to the US, because we had the Death penalty. SO WHAT?? OH, they didn't HAVE to since he was "under the Mexican Jurisdiction, being a Mexican citizen"... you can't have it BOTH ways pal. and no one else, has a law, that works the way YOU seem to want it to! So get real, and wake up! By the way, hows that "LIBERALISM working out for you, in Sunny, BANKRUPT Liberal California??? Not so well, huh?? You idiot! Maybe, you should move out of there, to , say, the Mid west?? So you can get a REAL education?? What you got at Berkeley isn't worth horse dung.

Anonymous

Posted Mar 26 2011

Anonymous

Posted Apr 11 2011

Professor Lopez,
I came to the US 10 years ago with a gumption to start a new life. US taxpayers and US donors have contributed over $300,000 towards my education expenses at Yale College and Boalt Hall. In exchange for for my amazing education, I am obliged and committed to (re)building this country with my ambition and my energy. I pay my taxes with my big law firm job but would rather run a startup to create jobs and value rather than shuffling paper.
Yet, despite my credentials and my knowledge of this nation and its laws, despite paying higher taxes and my indebtedness, and despite having most of my social relationship within the US, this country doesn't value me anywhere near any new born who has had no connection to this land other than the fact it happened to spend the first seconds of his or her life in this nation. I have about 15 days to leave the country if I quit my job. In order to apply for permanent residence, I must wait in line for 6 years with others who are born in a certain Asian country - even though I haven't been a Citizen of that country since i was 6 years old. As you know, it's perfectly fine for the US government to discriminate on the basis of race in realm of immigration despite whatever ideals the 14th amendment purports to uphold. My working visa may have expired by then which means my chances of succeeding are not great. Many people tell me to just get married to an American - I would love to but see citizenship and marriage as separate things. To mix them would undermine and corrupt the fundamental ideas of both.
The historical implication of birth right are not lost on me (I took Goodwin's class) and I know that given the very small number of children born to illegal immigrants the debate is ideological rather than practical. However, let me make some arguments:
1. Your ideals of racial equality would be better served if you focused attention on de jure discrimination based on race - those immigrants trying to gain green card through skill and education from individuals born the countries of India, China, Korea and the Philippines who may or may not have anything to do with their countries of birth.

2. Your ideals of the American work ethic and meritocracy would be better served if citizenship was based on actual merit rather than where someone was born. From the day the 14th Amendment was adopted until now, the children born in the US and thus were granted birth right have been OVERWHELMINGLY white. From here on out, the primary beneficiaries will be Latino by majority. Regardless of the basis immigration you use - birth right or merit - the result will be de facto racist.

My parents were immigrants too - they went to another Western nation, washed dishes and cut lawns. Unlike me however, they were easily able to obtain permanent residence as soon as my dad finished his PhD and started working as a chemist. Despite having terrible English, despite not understanding its cultures and laws, my parents and I were able to settle in that country and make it their home. In contrast, I am less wanted by this country than a baby that was born in some Texas desert or some tourist pregnancy hotel. Dred Scott aside, how can this be equal or fair?

- Boalt Hall 2010

Anonymous

Posted Apr 11 2011

Further arguments:
1. 14th Amendment was born because it was the easiest way to give former slaves equal rights. It was transitional solution and we no longer have that exactly same problem.
2. Birth right is under-inclusive in the people it should help: it doesn't help the children who were brought to this country at the age of 6 months and can't get into college or a job because their parents happened to be illegal; it doesn't help skilled immigrants who obtained a college degree here; and it doesn't help refugees.
3. Birth right is over-inclusive in the people it should help: children born to tourists who go back to their home nations after a few weeks in a tourist pregnancy hotel.

Given that birth right was born out of a transitional phase of the country, and given it's tendency to be over-inclusive and under-inclusive, why do we still need it.

Here's an alternative:
- Children get whatever their parents have, whether it be a green card, citizenship, tourist visa, etc.
- Children, regardless of where they are born and the status of their parents will have an opportunity to apply for citizenship at the age of 16 assuming they have been going to school, can have basic literacy skills, and have no criminal record.
- Everyone else can apply on the basis of merit, whatever that may be: refugee status, education, skill, investment, knowledge of US constitutional law, etc. There will be no de jure discrimination based on country of birth or citizenship.

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