Original Republicans Were Cool With Anchor Babies

Birthright citizenship has bounded from fringe obsession to the prime-time news hour in the span of just a few weeks. Immigration opponents want to repeal the right, nestled in the Constitution since 1868, with a new amendment.

“I think it’s worth considering,” House Minority Leader John Boehner said on last week’s Meet the Press, cementing the idea’s sudden status as a straight-faced topic of debate in Washington.

His supporters say birthright citizenship invites immigrants to come here and rewards their illegal behavior once they’ve made it across the border.

Their logic also rests on a particular historical argument: The framers of the 14th Amendment (a different lot from the all-knowing Founding Fathers) meant to give citizenship to freed slaves, not the children of Mexican day laborers.

They never saw coming “anchor babies,” “birth tourism” or — in the latest and least likely concern — “terrorist babies.”

But as with many rapidly evolving political memes, this one could benefit from a little more historical context.

Section 1 of the 14th Amendment was in large part a response to the 1857 Dred Scott Supreme Court decision, which declared that free slaves and their descendants could not be citizens of the United States (or entitled to citizenship’s protections and privileges). Politicians in the 1860s did, however, foresee the other implications of Section 1.

“When we get this proposal that all people born in the country are going to be citizens, there are people who say, ‘Oh my god, if you do this, the gypsies will be citizens! If you do this, the Chinese immigrants who have babies here, they’ll be citizens!’” said Wake Forest law professor Michael Curtis, the author of a book on the 14th Amendment. “And the decision was made to stand up for birthright citizenship in spite of this.”

“Saying it only applied to blacks and has nothing to do with Mexicans, that’s ridiculous,” added Columbia University historian Eric Foner (who’s also written extensively on the topic). “They were very careful writing this amendment. If they had said that it was for blacks, they would have put ‘blacks’ in there. That was the primary purpose, but there was this other purpose of creating a national standard.”

The clause came up late in the process of crafting the 14th Amendment — not because the framers didn’t believe it was important, but because many of them felt birthright citizenship was, in the words of the senator who first introduced the amendment, “the law of the land already.”

“Republicans assumed that every person born in the country was a citizen, and that Dred Scott was wrong,” Curtis said. “It occurs to some wise people that we better fix this. That’s when the citizenship clause comes in.”

The framers made no distinction between the children of legal and illegal aliens because the latter group didn’t exist — the U.S. had not yet begun restricting immigration. Foner says the closest equivalent in the 19th century were the Chinese working largely in California, who weren’t eligible for naturalization. Politicians recognized, however, that the 14th Amendment would give citizenship to their children.

Championing the idea at the time was the Republican party of Abraham Lincoln. But given the ideological realignment of the parties over the last century, it’s probably unfair to say that modern-day Republicans like John Boehner and Lindsey Graham want to remove a right originally inserted into the Constitution by their political ancestors.

One irony, however, does stand out: The repeal advocates who argue that the intent of politicians in 1868 doesn’t hold up amid immigration problems of the 21st century are in many cases the same pundits and politicians who reject the concept of the U.S. Constitution as a “living document” — a set of laws and principles to be adapted to modern challenges.

The 14th Amendment also contains much more than birthright citizenship. It is the amendment that nationalizes the principles of the Bill of Rights, and that, in Foner’s words, “solidifies the consequences of the Civil War.”

This wasn’t just any old amendment — a fact worth appreciating in any debate about plucking out a clause within it for revision.

“The 14th Amendment is the most important amendment since the Bill of Rights; it really changed the Constitution,” Foner said. “Scholars talk about a ‘new Constitution’ because it put into the Constitution for first time this idea of equality for Americans, which had not been in there before. It made the Constitution what it has been for the last 150 years or so, a document that groups and individuals who feel aggrieved because they’re being denied equality can appeal to.”