Ann Coulter wants to end the long American tradition of granting citizenship to every child born in the United States, regardless of the immigration status of their parents. But to do so, she has to bend and twist the history to deny that this tradition is in fact American and claim instead that it was actually the invention of "lunatic" liberal activists.
In a recent column, Coulter claimed that the right to citizenship for children born in the U.S. to unauthorized immigrants, "derives only from a footnote slyly slipped into a Supreme Court opinion by Justice Brennan in 1982. You might say it snuck in when no one was looking, and now we have to let it stay."
She repeated this claim last night on Fox News, stating that the 14th amendment "was about free slaves. This multi-culti rainbow coalition is a brand-new invention" and that "[t]his whole baby anchor thing comes from a footnote that was not related to the opinion, in an opinion by Justice Brennan in 1982":
Here's Coulter's account of the history:
In the 1884 case Elk v. Wilkins, the Supreme Court ruled that the 14th Amendment did not even confer citizenship on Indians -- because they were subject to tribal jurisdiction, not U.S. jurisdiction.
For a hundred years, that was how it stood, with only one case adding the caveat that children born to LEGAL permanent residents of the U.S., gainfully employed, and who were not employed by a foreign government would also be deemed citizens under the 14th Amendment. (United States v. Wong Kim Ark, 1898.)
And then, out of the blue in 1982, Justice Brennan slipped a footnote into his 5-4 opinion in Plyler v. Doe, asserting that "no plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful." (Other than the part about one being lawful and the other not.)
Combine Justice Brennan's footnote with America's ludicrously generous welfare policies, and you end up with a bankrupt country.
Let's go back to the beginning. The Citizenship Clause of the 14th Amendment states:
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.
"Illegal immigrants" as we know them now did not exist when the 14th Amendment was written in 1866, since the Congress had not yet begun restricting entry into the country. There were, however, plenty of immigrants who were excluded from naturalization. The rule at the time, established in 1790, was that aliens who were "free white persons" could become citizens after two years of residency. A couple years after the 14th Amendment was adopted, Congress extended naturalization eligibility to include "persons of African descent." Asians remained excluded.
Contrary to the claim that Congress was only thinking of African-Americans when the 14th Amendment was drafted, the Senate debate from 1866 shows that they explicitly recognized that it would apply to the children of Chinese immigrants, who, again, were not allowed to naturalize. While debating the Citizenship Clause, Senator Edgar Cowan, who ended up voting against the 14th Amendment, worried that the people of California would "be immigrated out of house and home by Chinese." In response, Senator John Conness of California stated:
The proposition before us, I will say, Mr. President, relates simply in that respect to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the nation. I am in favor of doing so. I voted for the proposition to declare that the children of all parentage whatever, born in California, should be regarded and treated as citizens of the United States, entitled to equal civil rights with other citizens of the United States.
The Congressional Research Service has also concluded: "Although the primary aim was to secure citizenship for African-Americans, the debates on the citizenship provisions of the Civil Rights Act of 1866 and the Fourteenth Amendment indicate that they were intended to extend U.S. citizenship to all persons born in the United States and subject to its jurisdiction regardless of race, ethnicity or alienage of the parents."
In U.S. v. Wong Kim Ark, 30 years after the 14th Amendment was adopted, the Supreme Court ruled that "where birth in the United States was clear, a child of Chinese parents was, in the Court's opinion, definitely a citizen under the Fourteenth Amendment, even though Chinese aliens were ineligible to naturalize under then-existing law," in the words of CRS. The Court did "not make a distinction between illegal and legal presence in the United States," contrary to Coulter's suggestion.
Coulter then jumps to 1982, when she claims Justice Brennan "slipped a footnote" into an opinion, sticking us with birthright citizenship for the children of unauthorized immigrants. In fact, as James C. Ho -- who has worked for Justice Clarence Thomas, Sen. John Cornyn (R-TX) and President George W. Bush's Justice Department -- explains:
[Plyler v. Doe (1982)] construed the Fourteenth Amendment's Equal Protection Clause, which requires every State to afford equal protection of the laws "to any person within its jurisdiction." By a 5-4 vote, the Court held that Texas cannot deny free public school education to undocumented children, when it provides such education to others. But although the Court splintered over the specific question of public education, all nine justices agreed that the Equal Protection Clause protects legal and illegal aliens alike. And all nine reached that conclusion precisely because illegal aliens are "subject to the jurisdiction" of the U.S., no less than legal aliens and U.S. citizens.
Writing for the majority, Justice Brennan explicitly rejected the contention that "persons who have entered the United States illegally are not 'within the jurisdiction' of a State even if they are present within a State's boundaries and subject to its laws. Neither our cases nor the logic of the Fourteenth Amendment supports that constricting construction of the phrase 'within its jurisdiction.'" In reaching this conclusion, Brennan invoked the Citizenship Clause and the Court's analysis in Wong Kim Ark Ark, noting that
"[e]very citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States." ... [N]o plausible distinction with respect to Fourteenth Amendment 'jurisdiction' can be drawn between resident aliens whose entry into the United States was lawful, and resident aliens whose entry was unlawful.
The four dissenting justices - Chief Justice Burger, joined by Justices White, Rehnquist, and O'Connor - rejected Brennan's application of equal protection to the case at hand. But they pointedly expressed "no quarrel" with his threshold determination that "the Fourteenth Amendment applies to aliens who, after their illegal entry into this country, are indeed physically 'within the jurisdiction' of a state." [emphasis added]
Law professor Bill Ong Hing reportedly said in response to Coulter's claims: "She's basically making a straw argument and saying the footnote's the problem, not the Fourteenth Amendment. But it's the Fourteenth Amendment that's her problem, not Plyler."
Take it up with the Constitution, Coulter.