11/02/2010
From: J. Paige Straley
The Wong Kim Ark (1898!) decision is usually cited as the genesis of the anchor baby argument. Oddly enough, the court used "English Common Law" for background rather than commentary in the Congressional Record. Nevertheless, Wong Kim Ark established that " … a child born in the United States of parents of foreign descent who, at the time of the child’s birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States … "
You'll note that whether the parents are foreign citizens, or under foreign jurisdiction, is irrelevant.
Permanent domicile is quite relevant, as illegal aliens are rousted and deported fairly often. (Perhaps even more often in the future!) Since the possibility of deportation constantly hangs over their heads, the comfort of permanent domicile is not available to them. Thus, Wong Kim Ark fails in the case of illegal aliens' children born in the US.
In the case of Mexicans, the Mexican Constitution bestows citizenship on children of Mexican parents regardless of where the birth takes place. Today, a Mexican anchor baby is a dual citizen. If the bonds of citizenship mean anything, they establish a reciprocal relationship between state and individual. That is a form of jurisdiction. So we may ask, how shall we answer which citizenship is primary?
By J. Paige Straley is the author of "Jack’s Christmas", which you can buy here.
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