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Pull Up Our Anchors To Discourage Illegal Immigration

December 8, 2008
Herb Denenberg
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Contrary to popular opinion, current practice, and the conventional wisdom, children of illegal aliens born in the U.S. should not receive automatic citizenship. These children, sometimes called “anchor babies,” have been thought to deserve automatic or birthright citizenship in accordance with the Constitution.

However, Dr. Edward J. Erler, a political science professor at California State University, San Bernardino and a fellow at the Claremont Institute, makes a persuasive case against giving birthright citizenship to illegal-alien children born in the U.S.

This month’s issue of Hillsdale College’s journal Imprimis discusses his views. It is one of the most valuable publications on the market if you want to understand government and politics.

It is free upon request ( or write External Affairs, Hillsdale College, 33 E. College St., Hillsdale, MI 49242.)

Birthright citizenship is an important issue, one we should be resolved against. Giving automatic citizenship to “anchor babies” helps attract the illegal immigration that overwhelms our borders and creates all kinds of horrendous security and economic problems.

An estimated 12 to 20 million illegal aliens already are in the U.S., and an estimated 400,000 illegals have ordered deported but still on the loose somewhere in the U.S. Only 2,000 federal agents, employed by the Department of Homeland Security, are available to track down the 12 to 20 million illegals, some of whom commit crimes and possibly plot terrorist attacks.

Mr. Erler says the belief birthright citizenship is required by an explicit command of the constitution, consistent with the British common law system, is erroneous.

His first argument considers the concept of citizenship in English common law. The Framers of the Constitution were well versed in common law, through William Blackstone’s Commentaries on the Law of England.

The concept of citizenship was unknown in English common law. Blackstone speaks of “birthright subjectship” or “birthright allegiance” without even mentioning citizenship.

Mr. Erler explains “birthright subjectship” derives from feudal law. It is a master-and-servant relationship, which means all born within its protection owe him a perpetual debt of gratitude. Blackstone says this debt is “intrinsic” and cannot be “forfeited, cancelled or altered.” It is a doctrine of perpetual allegiance.

That notion of birthright subjectship was rejected by the Founders. Our Declaration of Independence solemnly proclaims that …”the good people of the colonies … are absolved from all allegiance to the British Crown, and that all those connection between them and the State of Great Britain, is and ought to be dissolved.” This proclamation according to Blackstone and the common law is treason, hence this common law doctrine of perpetual allegiance, with its feudal origins, could not possibly serve as the basis of American citizenship. Mr. Erler says thinking it could is “too preposterous to entertain!”

In fact, the great James Wilson, signer of the Declaration of Independence, member of the constitutional convention and Supreme Court Justice said, “Under the Constitution of the United States, there are citizens, but no subjects.” Our idea of citizenship thus on the consent of the governed and not the accident of birth.

So this brings us to the key question – what is citizenship? It is a matter of law. A new nation lacks citizens until its law creates them. The original Constitution of 1787 did not define citizenship although it did mention it. But in 1868, with the ratification of the 14th Amendment, we gained our first constitutional definition of citizenship: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and the state wherein they reside.”

Note, the amendment’s language has two components: first-born or naturalized and second subject to the jurisdiction. Those who believe having been born in the U.S. creates an automatic ticket for citizenship ignore the second component – subject to the jurisdiction of the United States. If being born were enough to confer citizenship that would mean the subject-to-jurisdiction language was superfluous. If the Framers of the 14th amendment had wanted birth alone to confer citizenship, they would have simply written all those born in the U.S. or naturalized are citizens. But they did not, instead they developed a double-barreled definition.

The debate makes the Framers’ intent clear. When the question was raised about whether the amendment would automatically make all Indians citizens, Sen. Jacob Howard of Ohio, the author of the citizenship clause, said Indians would not become citizens. That’s because even though they are born in the U.S. they owe allegiance to their tribes and not the U.S.

Sen. Lyman Trumbull, the then-Judiciary Committee chairman, agreed with Howard. He argued that being “subject to the jurisdiction of the U.S.” means “not owing allegiance to anybody else and being subject to the complete jurisdiction of the United States.”

Sen. Howard further clarified the significance of the “subject to the jurisdiction” clause, saying jurisdiction means allegiance, excluding not only Indians, but also “persons born in the United States who are foreigners, aliens [or] who belong to the families of ambassadors or foreign ministers.”

The bottom line mean being born in U.S. means more than mere geography, because citizenship requires undivided political allegiance to the U.S.

Further evidence rejecting the English common-law notion of perpetual allegiance and subjectship also exists. The same year Congress passed the 14th Amendment, it also passed the Expatriation Act, which permitted U.S. citizens to renounce their allegiance and alienate their citizenship. This law, supported by Sen. Howard and other leading advocates of the 14th amendment, makes it clear that perpetual allegiance or subjectship has no place in American law. This all means that the idea of birthright citizenship, birthright allegiance and birthright subjectship, hearkening back to feudal and common law, have no place in American law. Both were clearly rejected by the Framers of the 14th Amendment and the Expatriation Act of 1868.

Mr. Erler thus concludes it is absurd to conclude the intent of the 14th Amendment confers birthright citizenship, a rejected feudal- and common-law feature. He writes, “Nor does the denial of birthright citizenship visit the sins of the parents on the children, as is often claimed, since the children of illegal aliens born in the U.S. are not being denied anything to which they have a right. Their allegiance should follow that of their parents during their minority. Furthermore, it is difficult to fathom how those who defy American law can derive benefits for their children by their defiance – or that any sovereign nation would allow such a thing.”

One U.S. Supreme Court decision holds that children of legal, resident aliens are entitled to citizenship. But the justice writing the majority opinion (in a 5-4 decision) used subject and citizen interchangeably, and failed to recognize the distinction between feudal law and monarchy on the one hand and constitutional republicanism on the other. The dissent in a strong opinion said the American Revolution and the Declaration of Independence repealed the idea of birthright subjectship.

Consequently, Mr. Erler argues that overruling this case should be easy. Also, the case involved legal aliens, not illegals, thus limiting its precedential value.

Mr. Erler’s case against birthright citizenship importantly shows a constitutional amendment is not necessary to change the current practice.

Getting back to the case of the Indians, Congress started granting them citizenship on a tribe-by-tribe basis in individual enactments. Then, in 1923, all tribes were offered citizenship based on reciprocal agreements under the law: an offer of citizenship made by the government and accepted by the Indians. This means Congress used its legislative power to grant citizenship under the 14th Amendment and to determine eligibility. It can also do the same with children of illegal aliens. No amendment was necessary in 1923 and none is necessary now.

Congressional action to end birthright-citizenship should be a high priority, and with the interest in illegal immigration, it is remarkable that our Congress hasn’t considered this matter a priority.

While Congress considers eliminating birthright-citizenship, it ought to consider another interpretation of citizenship closely related to birthright-citizenship – dual citizenship.

We have tolerated dual citizenship, but that is outrageous when the views of the Framers of the 14th Amendment are accounted for. As already indicated, the Framers said “subject to the jurisdiction of the United States” means exclusive allegiance to the U.S.

This issue gains further importance, because 85 percent of all immigrants arriving in the U.S. come from nations allowing dual citizenship. Consequently, we become vulnerable to foreign pressures on our citizens who have divided allegiances. Mr. Erler writes, “Thus we have created a situation where a newly naturalized citizen can swear exclusive allegiance to the U.S. while retaining allegiance to a vicious despotism or a theocratic tyranny.”

Don’t be lulled into thinking that these concepts are just technicalities when it comes to defining citizenship. Should we lose our concept of citizenship and not legally implement it, we endanger our nationhood and our constitutional democracy.

Mr. Erler notes elite liberal opinion has long considered “the sovereign nation-state as an historical anachronism in an increasingly globalized world. We are assured that human dignity adheres to the individual and does not require the mediation of the nation-state. In this new universe of international norms, demands on the part of the nation-state to exclusive allegiance or for assimilation ‘violate universal personhood.’ In such a universe, citizenship will become superfluous or even dangerous.”

This concept, if adopted, then leads to open borders. Mr. Erler explains this view claims illegal immigrants are merely trying to support family values – universal values that should not be denied because of b orders. To this open-border mentality, borders, exclusive allegiance and political exclusivity are opposed to universal values if not human decency. This open-borders mentality has been adopted by the Mexican government and Leftists in the U.S.

In the face of this liberal thinking, we should remember history tells us constitutional democracy has only survived in the nation-state. Should we abandon the nation state to those who prefer being global citizens, we may abandon constitutional democracy in the end. Europe has headed that way, and Mr. Erler considers the EU (European Union) an administrative tyranny, not a constitutional democracy. A world-state is likely to be an EU-type administrative tyranny on a larger stage.

Mr. Erler concludes, “The continued vitality of the nation-state and of constitutional government depends on the continued vitality of citizenship, which carries with it exclusive allegiance to what the Declaration calls a ‘separate-and-equal’ nation. Unless we recover an understanding of the foundations of citizenship, we will find ourselves in a world where there are subjects but no citizens.

So beware of politicians who are more interested in being citizens of the world than of being citizens of the United States. And beware of politicians who campaign in Berlin, Germany, rather than Berlin, N.J. And beware of politicians who have greater interest in being loved in Europe than in doing right for America.

Herb Denenberg is a former Pennsylvania Insurance Commissioner, Pennsylvania Public Utility Commissioner and professor at the Wharton School. He is a longtime Philadelphia journalist and consumer advocate. He is also a member of the Institute of Medicine of the National Academy of Sciences. His column appears daily in The Bulletin. You can reach him at

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