The anchor baby issue was anticipated by dissenting justice

The headline in USA Today today put an exclamation mark on the issue: “Births up for those in USA illegally; Study stirs debate on birthright citizenship.”

The story relates a Pew Hispanic Center analysis of Census data that found the total number of children in this country born to illegal immigrants was 4 million in 2009, up from 2.7 million in 2003.

All 4 million are U.S. citizens under an 1898 Supreme Court interpretation of the 14th Amendment. They were 8 percent of births this past year. Another 16 percent of all births were to immigrants legally in the United States.

This so-called anchor baby issue, which makes it more difficult to deport parents of citizens, has prompted Sen. Lindsey Graham, R-S.C., to call for a revision of the 14th Amendment, possibly by a constitutional amendment.

The 14th begins with the language, “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.”

The key phrase is “subject to the jurisdiction thereof,” since there were no immigration laws at the time of its passage.

The Supreme Court ruled in United States v. Wong Kim Ark that a Chinese child born in San Francisco was in fact a citizen.

Justice Horace Gray wrote, “The fact, therefore, that acts of Congress or treaties have not permitted Chinese persons born out of this country to become citizens by naturalization, cannot exclude Chinese persons born in this country from the operation of the broad and clear words of the Constitution, ‘All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States.’”

But in his dissent, Justice Melville Fuller was rather prescient as to the problems that might arise when he wrote:

“The Fourteenth Amendment was not designed to accord citizenship to persons so situated and to cut off the legislative power from dealing with the subject.

“The right of a nation to expel or deport foreigners who have not been naturalized or taken an steps toward becoming citizens of a country is as absolute and unqualified as the right to prohibit and prevent their entrance into the country.

“But can the persons expelled be subjected to ‘cruel and unusual punishments’ in the process of expulsion, as would be the case if children born to them in this country were separated from them on their departure, because citizens of the United States? Was it intended by this amendment to tear up parental relations by the roots?”