Thursday, August 12, 2010

Birthright Citizenship I

There's been some talk, and a few politicians jumping on the bandwagon, concerning the issue of Birthright Citizenship and the concept of anchor babies.

The problem, if it is one,*(see edit,below) comes mostly from two sources. First, there is the obvious issue of children born to illegal aliens. The second, mostly unnoticed, is the trend among Asians, mostly Chinese and Korean, vacationers who time their trips to coincide with birthing their children in the United States.
These Asian babies then return to their parent's homeland to grow up, with the intent of using their American status to gain college admission later on.

The argument has been made that the original intent of the 14th Amendment was to clear up the status of former slaves. That may be. But, ever since it's ratification, it has been understood to apply to anybody born within our borders and jurisdictions.
To change what has always been understood by the people with a Supreme Court challenge is akin to what the left has done to property rights in Kelo, and most recently, is still attempting to do to the right to keep and bear arms.
You can't have it both ways, folks. Sorry.

* I should have stated this differently to read that I recognize that some folks see a problem and not to imply that I am saying that there is a problem.

18 comments:

my name is Amanda said...

Some Thoughts - And (this is directed to anyone) believe me, I am not in the mood for an argument - Just a discussion! If you respond to me, please be nice.

1. For people who are doing this (there are no numbers, because the gov doesn't track this separate from regular illegal resident births, but I assume that it happens much less than illegal resident births), they're paying $30k to have a baby here, and paying for something like a 2-month stay in food and accommodations at least, since pregnant women aren't allowed to fly w/o a doctor's note after 7 mos (that is an IATA standard).

2. Which leads me to think - is it so bad that our economy is financially benefitting from these people? Won't people who are affluent enough to do this in the first place send their grown child here later to be working, tax-paying citizens?

3. I don't think the "Asian babies then return to their homeland...with the intention of using their status" to return. Babies don't intend to do anything. They're still cognitively very simple, as babies go. :)

Yah yah, I know what you are saying. But just because a parent would do this, doesn't mean the child will for sure come back.

4. Finally, I don't understand what you are saying, Gino, about the 14th Amendment. Are you saying that it's wrong for us to apply it anchor babies, or that it's not wrong, when you compare it to the 2nd Amendment?

Which is a great comparison (I think, depending on your meaning), because the 2nd Amendment was certainly not created, to be used for the purpose that it is used today (blah blah blah, I am definitely not going to argue about that!). But I'm not even saying that as a reason to repeal it. I don't think the original reason needs to be the qualifier of legitimacy. Present times, the needs of a society should determine what is law and what is not law. Dontcha think?

So it seems like the issue would be determining whether anchor baby tourism is destructive, benefial, or benign.

RW said...

The argument should be about the 14th amendment itself. Which is a legitimate discussion. I don't see what your delusions of conspiracy about the 2nd amendment have to do with the issue of the 14th.

RW said...

Come to think of it, it's kinda funny to me that the folks who wave their snake flags and like to say we should be following the constitution seem to be wondering out loud if we should make a few alterations here and there. What happened? One of them actually read it?

Gino said...

RW: i'm saying that using the courts to change what has always been understood, to now mean something else...
like some are trying to redefine the 2A.

for me, both mean what they've always been understood to mean.

i'll get more into this. its a legitimate issue for discussion.

Brian said...

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States"

Yup. There's nothing remotely ambiguous about that.

It's worth mentioning that the concept of an "illegal alien" didn't really exist at the time the amendment was written, or even some years later when the first cases of children born to foreign citizens in the US were ruled upon. And of course, it was inconceivable that any appreciable number of people would have the means to travel to the US for the specific purpose of having a baby there.

One could certainly argue that given the greater mobility of people that exists today, the amendment ought to be amended to specifically exclude from citizenship children born to a mother illegally in the US--I wouldn't agree with it myself, but the argument could be made--but the point is that this absolutely requires a constitutional amendment.

I think the rhetoric about "anchor babies" is completely overheated relative to the actual magnitude of the "problem". If you are a Mexican with no other connection to the US than the baby you have here (i.e., no other path to permanent residency other than literally winning a lottery), you have to wait for your child to grow up, become old enough to sponsor you (21 years, and assuming at that point they can support you at 125% of the poverty line), then you begin the application process, during which time you would likely have to leave the United States while the application was being processed--or remain in the US without being able to leave or work--which could take another 10 years or so. Assuming that your application is successful, you would then become a permanent resident and be able to apply for naturalization in another 5 years.

So...people are coming across the border in hoards to have children to get a non-guaranteed shot at *applying* for US citizenship in about 36 years' time? Really?

As to the "trend" you mentioned...got any stats you can cite for that? Being in the business I am, I know a hell of a lot of Asian immigrants, children of Asian immigrants, and Asian immigrants with American children, and I have *never* heard of what you describe. I'm not saying it doesn't happen, but I have a hard time believing that it represents a significant phenomenon.

Gino said...

brian: i'll look for stats on that asian thing.
i've read about it in the past, but its a current trend, the last several yrs or so. anybody squeaking through on that wouldnt likely be far enough along to apply for a place where you do your thing.

i think its a couple thousand a yr. a spit in the ocean,really.
i'm not implying that its a problem, nor that the mexican thing is either.

Foxfier, formerly Sailorette said...

I'm not so sure it's "always" been understood-- as I understand it, the modern understanding is from the '80s, not from when the 14th was drafted.

This op-ed has the least unlinked claims of those I could find. (I'm no legal scholar, but I did remember reading something on five feet of fury that gave me a basis to search from.)

I don't like trusting Wiki, but using them as a spring board...they don't have any cases between 1898 and 1982; going to the case that was cited as justification for illegal children to be schooled makes it kind of troubling... it goes back to English common law:
The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "legality," "obedience," "faith" or "power," of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual — as expressed in the maxim, protectio trahit subjectionem, et subjectio protectionem — and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance; but were predicable of aliens in amity, so long as they were within the kingdom. Children, born in England, of such aliens, were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects, because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction of the King.

(side note: google scholar rocks. the US gov seriously needs to do this for their W$@##$@ bills-- you click on the referred decision, and it opens in a new window, at the relevant point)

江仁趙雲虹昆 said...

一棵樹除非在春天開了花,否則難望在秋天結果。..................................................

Bike Bubba said...

Regarding birth tourism; that $30,000 revenue can be eaten up very quickly by costs of welfare if noncitizens come here not knowing enough English to get work. So it's not an unmitigated economic good--or perhaps won't be in 20 years when these kids grow up.

Regarding anchor babies, the Mexican constitution gives citizenship to the children of all Mexican citizens, so really...well....there aren't that many anchor babies. Just parents who willingly leave their kids behind and complain about the fact that they didn't take 'em back to Mexico when they were deported--and people who cry with them without reading the Mexican Constitution.

And the 14th? You can make the argument that foreign nationals are not strictly speaking subject to our jurisdiction, but my take is that you can solve the problem far more easily by actually, say, enforcing border laws and building a decent border fence, including vehicle barriers 100 yards or so before the people barrier.

And, ahem, reforming visa laws to eliminate birth tourism as a way of getting citizenship.

Brian said...

Can someone please give me a figure about how much "birth tourism" actually occurs? How are the visa laws to prevent it going to be reformed...make every woman entering the country undergo a sonogram at the border?

I realize I'm being a bit flip about this, but my points are serious: 1) is this really a problem, and 2) even if it is, are the means by which it could be practically addressed worth the costs?

Foxfier, formerly Sailorette said...

I don't know how much of it happens, but it would be a fairly simple fix:
put language in the visa agreement to the effect that those on the visa are unofficial reps of their government, and thus children born of them in the US have their parents' citizenship, rather than US citizenship.

Basically, go back to English common law and use their solutions. (This would result in resident aliens giving birth to citizens and visa-visitors not doing so; I would argue that illegal aliens are more like alien enemies than aliens in amity, given that they are willfully going counter the established process.)

Various work programs would probably fall under 'visa' rather than 'resident alien'.



TL;DR version:
Visa: foreign ambassadors
Resident alien: alien in amity
Illegal alien: alien enemy.

Citizenship by the intent of the person's admission to the country. Visas aren't for folks who want to settle, resident aliens are living in harmony with the law and illegals weren't admitted.
(Yes, I know some illegals got here by legal means and then split...that would be a division point where they went counter the law of the land.)

REALLY need the whole system fixed up, anyways.... Hm, maybe I can blog on that....

my name is Amanda said...

I noted above that there aren't any numbers; they are not tracked separetely from other babies born to nonresident women. (And I think I read that that yearly total was 7k-something.)

Foxfier, formerly Sailorette said...

I found out yesterday that California and several other states don't report birth statistics to the feds; I know that the hospital I gave birth at in WA couldn't ask citizenship/legal resident questions.

Gino said...

brian: i'm still digging, seriously.

the best i found was what amanda is refering to, but there;s gotta be more.

btw: i'll address that bit in a continuing post.

kr said...

I don't think the original reason needs to be the qualifier of legitimacy. Present times, the needs of a society should determine what is law and what is not law. Dontcha think?

well, now, I'd take issue with that. The whole modern (OK, probably it was Reformation or something, but it is essentially a pre-Modern ideal) theory of the "rule of law" (by which we escaped despotism etc etc) was based on everyone being bound by the same rules. "The needs of society" is an unfortunately flexible and highly subjective category, particularly as our society becomes less well-read and more mentally and morally dissolute on a forced diet of big-money-media. Most of what the Nazis accomplished was very much--and in most cases probably truly, deeply, honestly--considered part of the(ir) modern and enlightened 'needs of society.'

The USA has what is still a fairly unique political experiment, set up by people who, although I deeply disagree with some of their basic assumptions, overall did pretty well with a set of basic human rights and controls on the powers of government. Upon which others have modelled governments. I have heard that because of this structure we inherited, PJPII actually still saw America as the great political hope for the world (despite our many objectionable to the Church/him social trends).

I disagree with the basic idea that if a set of laws is inconveniencing society in the "now" it ought to be changed. I don't assert the opposite, that laws are sacrosanct and should *never* be changed (although changing the rules mid game is a recipe for extended court and legislative battles and heavy losses on both sides, witness land use issues across the nation) ... but I think heavy consideration should be given to keeping things as they are in a system that is generally a good one, and heavy reasons that can be reasonably expected to remain pertinent "permanently" should be provided for changes.

But then, I've helped to develop policies, and the idea of writing rules that will apply well and justly over time and in all circumstances, while in the end a practical impossibility, is at least an ideal I am comfortable aiming for. American society doesn't teach us to think that way (anymore?).

Here in Oregon I have voted against well-written laws because the petitioners were trying to ensconce them in our Constitution (thereby requiring Amendments to ever change them); I have voted against a great many immediacy-based attempted Amendments to our state Constitution. I have also been horrified how many times a "good idea" is made into a bad law (Constitutional or simple statute) ...

Anyhow, I've been aware of birth-tourism since maybe the late 80s, when it started hitting the women's magazines(?). Other than knowing it has grown into an organized rig, with host homes and all that noise, and that the numbers were significantly on the rise since about 2000, I have never found it too much of a concern. Families pulling this stunt are smart enough to play the rules and solvent enough (and determined enough) to be likely to make sure their child is well educated and as likely as any college age kid to be a productive member of society, here or there. I am frustrated by the social justice issues implicit in this extreme example of economic stratification (comparing this behavior to, say, the lives of the peoples of Asia suffering from tsunamis, earthquakes, flooding, and government-imposed starvation) ... but I like Foxfier's solution, just redefine what kind of status the non-citizen is carrying to be more consistent with their rule-abidingness (since Law is our King, here).

Once again ridiculously long. Sigh.

Brian said...

Of interest:

http://reason.com/archives/2010/08/16/giving-birth-to-immigration-fe

"There is one category of foreigners who do travel to this country just to give their babies the gift of American citizenship. "Birth tourists" reportedly are catered to by travel agencies, hospitals, and hotels offering deals for expectant mothers. One Turkish-owned hotel in Manhattan offers a package including month-long accommodations for $45,000, which doesn't cover hospital costs.

But it's hard to see why this phenomenon causes so much anger among anti-immigrant groups. They complain about poor Mexicans sneaking in illegally, taking jobs, getting government assistance, and staying forever. Shouldn't they be happy to hear about rich Turks getting visas, avoiding employment, paying their own costs, and leaving immediately?

At any rate, it's not exactly a raging epidemic. The National Center for Health statistics says only 7,670 babies were born in 2006 to women who said they don't live here, or a microscopic 0.17 percent of all live births."

my name is Amanda said...

well, now, I'd take issue with that. The whole modern (OK, probably it was Reformation or something, but it is essentially a pre-Modern ideal) theory of the "rule of law" (by which we escaped despotism etc etc) was based on everyone being bound by the same rules. "The needs of society" is an unfortunately flexible and highly subjective category, particularly as our society becomes less well-read and more mentally and morally dissolute on a forced diet of big-money-media. Most of what the Nazis accomplished was very much--and in most cases probably truly, deeply, honestly--considered part of the(ir) modern and enlightened 'needs of society.

...I disagree with the basic idea that if a set of laws is inconveniencing society in the "now" it ought to be changed. I don't assert the opposite, that laws are sacrosanct and should *never* be changed (although changing the rules mid game is a recipe for extended court and legislative battles and heavy losses on both sides, witness land use issues across the nation) ... but I think heavy consideration should be given to keeping things as they are in a system that is generally a good one, and heavy reasons that can be reasonably expected to remain pertinent "permanently" should be provided for changes.


kr, I'm not sure that my statement was detailed enough for disagreement, using the argument that you used, unless you believe that the law must never change or be amended, but you don't believe that. However, I do argue that "the needs of society" isn't subjective at all. Society does refer to a group of people, or "everyone who is bound" by our law. Subjectivity would refer to the needs of the individual. And the fact that we are a Democracy means that it doesn't matter whether some people think society is less well-read and more morally dissolute (based on what? - also, the moral thing is very problematic).

The big-business media thing - I completely agree with you about the problems with that. It's very frustrating.

Anyway, it's not about laws that are "incoveniencing" individuals; it's about laws that don't contribute anything positive to our government, our infrastructure, or our people anymore.

Foxfier, formerly Sailorette said...

I don't know about anti-immigrant groups-- I know one or two bloggers who think we should shut down immigration until the current group have integrated, but none that are anti-immigration.

The anti-illegals folks I know don't have a special animus against birth tourists (possibly because even counting the ones from China, there aren't a lot...and because a lot are from China, forced abortions are bad) but will oppose it on principal because they figure that if you want laws to change, they should actually be changed, not randomly ignored. That's the whole "Republic" part of the deal, even if we do have a democratic form.

Illegals break a lot more laws, and it's much more common to drop an anchor baby and then use them to stay, regardless. (yay, emotional appeal)

Also a crud-ton more to worry about, even considering that the data is missing a major state for decades and is inconsistently reported (different states have different requirements, and sanctuary cities wouldn't ask the mother anything if she doesn't want to ask....)

I know the hospital I gave birth in last year had a significant number of women who would give birth, take the baby and vanish. They started having folk do pre-visits if they were planning to deliver there, so they could have all the insurance and parental information ahead of time. (Spokane, Washington, Sacred Heart-- it also lets them manage their maternity beds, since the state only allowed them to add two this decade, when they asked for 15 or so.)