The current anchor baby debate is all about who has and maintains political, economic and social power in the United States

By Ruben Salazar / Raza Legal News

“Anchor baby” and automatic “birthright citizenship,” thanks to Donald Trump, are the debate topics de jure. Anchor baby is the pejorative term for a child born in the United States to a foreign national mother who was not lawfully admitted for permanent residence.

It first appeared in print around 1996. But the derogatory term has remained relatively obscure until about 2006. In fact, it became the American Dialect Society’s “2006 Word of the Year.”

Chicago Tribune columnist Eric Zorn apologized for using the term “anchor baby” in a column critical of a mother who had sought sanctuary in a Chicago church. On August 23, 2007, the San Diego, California-area North County Times came under criticism from one of its former columnist, Raoul Lowery Contreras, in a column he wrote titled “Anchor babies’ is hate speech,” for allowing the term to be printed in letters and opinion pieces.

In 2012, it was defined by the American Heritage Dictionary as an offensive noun, used as a disparaging term. In 2012, Professor of Law at the University of Florida, Pedro A. Malavet, agreed with the new dictionary definition, calling it offensive. Also in 2012, Utah Attorney General Mark Shurteleff denounced during a meeting on immigration the phrase “anchor baby” as offensive. And, CNN anchor Chris Cuomo apologized for using the term on November 14, 2014, while discussing President’s Obama’s proposed executive order on immigration. Cuomo called the term “ugly” and “offensive.’”

Thus, the consensus among most legal scholars, publishers, and journalists is that the term “anchor baby” is a racial slur. Yet, the disparaging remark continues to be used as racial code for the term “illegal aliens.”

For instance, on April 15, 2014, during a televised immigration debate between San Antonio, Texas Mayor Julian Castro and Texas Senator Dan Patrick, Patrick came under heavy criticism for using the derogatory term “anchor babies” while describing his view of the immigration issue in Texas.

And today in 2015, many Republican politicians, notably Donald Trump, Jeb Bush, Ted Cruz, Scott Walker, and Bobby Jindle, have aimed their presidential political campaigns squarely at the U.S. born citizen children they continue to call “anchor babies.”

The whole issue over anchor babies stems from the older debate over whether a child born in the U.S. of an alien mother deserves the title of U.S. citizenship; the so-called “birthright citizenship” law. Donald Trump and his nativist supporters contend that, despite being guaranteed explicitly in the 14th Amendment, there is some doubt among “legal scholars” that citizenship should be determined by the nationality of the mother at birth, not the place of birth.

In others words, citizenship is determined by maternal blood, not by country. They argue that citizenship should not be derived from being born on U.S. soil, a concept known legally as “jus sil.” Instead, they propose citizenship should be based on the country from where your mother is a citizen, a concept know as “jus sanguinis.” They are wrong.

Birthright citizenship actually predates the U.S. Constitution and was adopted by the 13 original colonial states through British Common Law, before the Constitution was ever drafted in 1787. That long established law of birthright citizenship was the unquestioned legal norm in American law during the first half of the 19th Century. It only began to be challenged legally when the slavery controversy drove pro-slavery jurists to construct an alternative model of citizenship that would exclude American-born blacks as citizens.

Chief Taney in the infamous U.S. Supreme Court case Scott v. Sanford (“Dred Scott“) 60 U.S. (19 How.) 393 (1856), held that persons of African descent were forever barred from citizenship because the framers of the 1787 Constitution had not “consented” to their acquisition of such citizenship by any means.

The Dred Scott case, thus, represents the now-discredited legal view that blacks born in America never were and could never be citizens of the U.S., and that they were a permanently inferior caste whose proper role was to serve the Constitution’s true beneficiaries – white men only.

Later, Congress passed the Naturalization Act of 1790, which limited naturalized citizenship to “free white person[s]” only. In 1866, the Thirty-Ninth Congress of the U.S. dealt with the 1856 Dred Scott case and with the issue of birth and citizenship in two different bills; the Civil Rights Act of 1866 and the 14th Amendment to the U.S. Constitution.

The anti-slavery framers of the amendment considered the 1787 Constitution as fundamentally flawed, because it allowed the Southern states to create quasi-sovereign dictatorships in which the states had control over the right to citizenship.

Accordingly, the framers intended the 14th Amendment as a wide-ranging and fundamental change in the Constitution itself, not a minor technical change leaving core concepts unchanged. The direct and immediate purpose of the Citizenship Clause of the 14th Amendment was to take the Dred Scott doctrine out of American law permanently.

In this historical context, the 14th Amendment and the Civil Rights Act of 1866 were passed by U.S. Congress during the Post-Civil War Reconstruction era. The Amendment explicitly guaranteed that “all persons born or naturalized in the United States. . . are citizens of the United States. . . .”

Thereafter, the issue “birthright citizenship” reared its ugly head again during the Depression of 1873, which took its economic toll on white working men who began to look for scapegoats. Mob violence, arson, and overt racist derision swept through California, fueled by the slogan, “the Chinese must go!” Congress quickly enacted the Chinese Exclusion Act of 1882, which was designed to put an end to the flow of Chinese into the U.S.

But in the end, the legal question of birthright citizenship was finally settled with the U.S. Supreme Court’s 1898 decision in United States v. Wong Kim Ark, 169 U.S. 649 (1989), when the highest court in the land affirmed the validly of the 14th Amendment and held that American-born children of Chinese immigrants are American citizens.

And, in 2006, Congress reaffirmed the maxim by codifying birthright citizenship in the United States. See, 8 U.S.C. Section 1401 (2006). Thus, the birthright citizenship to any child born of the U.S. by any foreign mother is legally unassailable.

Nonetheless, politicians like Donald Trump and Rand Paul seek to garner attention and votes by proposing the repeal or legal challenges to the “right of soil” provision of the 14th Amendment, and replace it with the “right of blood.” As in the antebellum days of Dred Scott, they continue to claim it was never the intent of Congress to include persons other than African-Americans.

The issue in the Civil War and Post-Reconstruction Era of the mid and latter 19th Century were blacks and Chinese taking jobs and competing economically with white Americans. The issue today in the 20th and 21st Centuries are Latinos, and Mexicans in particular since they make up more than half of the 10.3 million undocumented immigrants as of 2005.

Indeed, the issue of illegal immigration has been festering in the U.S. for over 60 years. In the 1950’s, the term “illegal alien” cropped up in the federal law reports. See, Waisboard v. United States, 183 F.2d 34, 35 (5th Cir. 1950). The similar phrase “illegal immigrant” first appears in U.S. case law in 1954, referring to Jewish refugees to Palestine. Derecktor v. United States, 127 F.Supp. 136, 139 (Ct.Cl. 1954). That term was first applied to Mexicans in Amaya v. United States, 247 F.2d 947, 948 (9th Cir. 1957).

Prior to these less offensive descriptions of undocumented immigrants coming into the American lexicon in the 1950’s, Mexicans were openly and publicly called by the dominant white society, overt racial slurs, such as “Wetbacks”, “Beaners,” “Spics,” “Greasers,” and “Taco Benders.” Those demeaning racial epitaphs are rarely heard today, but have been regrettably replaced with the denigrating terms,  “illegals” or – now – “anchor babies.”

While all Americans have, of course, the 1st Amendment right to call any other person any name they choose, all American-born citizens have the right to equal protections under the law, and to all privileges and immunities of any other citizen under the 14th Amendment.

Moreover, a U.S. citizen has the right to vote. And that, my friends, is what the debate over birthright citizenship, illegal aliens, and anchor babies is all about – the vote. And, power that comes from the vote.

At its core, then, the current anchor baby debate is all about who has and maintains political, economic and social power in the United States. If the white dominant society can control the vote, they can control the power.

For those reasons you heard TV commentator Lou Dobbs in August 2006 give a “poll” to the viewers of his cable news network using both the derogatory and offensive words, “illegal aliens” and “anchor babies” He asked the following question: “Do you believe illegal aliens who have anchor babies in the United States should be immune from deportation?”

And, that is why U.S. Senator Lindsey Graham recently denounced aliens and compared them to livestock, saying they “come here to drop a child. Its called ‘drop and leave.’” And, that is why you hear now Republican Party Presidential front-runner, Donald Trump, call Mexicans in particular “criminals,” “rapists.” “drug dealers.”

These are all metaphors for the former offensive terms used before the 1950’s, “Wetbacks”, “Beaners,” “Spics,” “Greasers,” and “Taco Benders.” But, even Trump would not dare use these older disparaging terms. Instead, given the current political climate and economic realities, he has shrewdly opted to use the more politically correct – but equally degrading terms – “illegals” and “anchor babies.”

Thus, it is no wonder during these trying economic times that Donald Trump has now boldly ratcheted up the right-wing, race-based “anchor baby” rhetoric with a vengeance, in order to tap into his base which are largely in the anti-immigrant camp.

Mexicans have gone from being called, “Wetbacks”, to “Illegal Aliens,” and now to “Anchor Babies.” Mexicans have replaced the enslaved blacks and the exploited Chinese. They are the new oppressed scapegoats of the economically sputtering American society. They have become the new social pariah, to be looked upon and treated as “criminals,” “rapists.” “drug dealers.”

However, the “anchor baby” proponents are woefully outnumbered, and they are clearly on the wrong side of American history and demographics. The Pew Hispanic Center report of March 7, 2006 titled “The Size and Characteristics of the Unauthorized Migrant Population in the U.S.” estimates that of the 14.6 million people in unauthorized families, about 4.9 million were children.

Of these, 3.1 million children (64%) were American children, i.e., “anchor babies.”A total of 3.8 million unauthorized immigrants had at least one child who is an American citizen. According to a Pew Hispanic Center report, an estimated 73% of children of illegal immigrants were citizens in 2008.

In addition, The U.S. government estimates that there were 7,462 births to foreign residents in 2008, while the Center of Immigration Studies estimates that 40,000 births are born to “birth tourists” annually.

And, how do you think these millions of so-called “anchor babies” of immigrant parents are going to vote in the 2016 presidential general election, when given the opportunity? Are they going to vote for the Trumps of the world who have called their families “Wetbacks,” “Illegal Aliens,” and who have called them “Anchor Babies”? You do the math.

That is why you are hearing calls for repealing the 14th Amendment and for ending the system disparagingly known as “anchor babies.”

What they don’t realize is that calling the children of illegal aliens “illegal” themselves, represents a giant step back to creating a second-class, slave-like system in all but name.

As one legal scholar put it, “If citizenship is the hereditary gift of the nation rather than the inheritance of its people, we are drifting back toward the discredited doctrine of Dred Scott.”

And that, my friends, would be un-American.

Ruben Salazar is an immigration attorney and activist in the Inland Empire city of Fontana. He writes a blog called Raza Legal News.