Ann Coulter Letter

Justice Brennan’s Footnote Gave Us Anchor Babies

Democrats act as if the right to run across the border when you’re 8 1/2 months pregnant, give birth in a U.S. hospital and then immediately start collecting welfare was exactly what our forebears had in mind, a sacred constitutional right, as old as the 14th Amendment itself.

The louder liberals talk about some ancient constitutional right, the surer you should be that it was invented in the last few decades.

In fact, this alleged right 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.

The 14th Amendment was added after the Civil War in order to overrule the Supreme Court’s Dred Scott decision, which had held that black slaves were not citizens of the United States. The precise purpose of the amendment was to stop sleazy Southern states from denying citizenship rights to newly freed slaves — many of whom had roots in this country longer than a lot of white people.

The amendment guaranteed that freed slaves would have all the privileges of citizenship by providing: “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 drafters of the 14th amendment had no intention of conferring citizenship on the children of aliens who happened to be born in the U.S. (For my younger readers, back in those days, people cleaned their own houses and raised their own kids.)

Inasmuch as America was not the massive welfare state operating as a magnet for malingerers, frauds and cheats that it is today, it’s amazing the drafters even considered the amendment’s effect on the children of aliens.

But they did.

The very author of the citizenship clause, Sen. Jacob Howard of Michigan, expressly said: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers.”

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.)

Brennan’s authority for this lunatic statement was that it appeared in a 1912 book written by Clement L. Bouve. (Yes, THE Clement L. Bouve — the one you’ve heard so much about over the years.) Bouve was not a senator, not an elected official, certainly not a judge — just some guy who wrote a book.

So on one hand we have the history, the objective, the author’s intent and 100 years of history of the 14th Amendment, which says that the 14th Amendment does not confer citizenship on children born to illegal immigrants.

On the other hand, we have a random outburst by some guy named Clement — who, I’m guessing, was too cheap to hire an American housekeeper.

Any half-wit, including Clement L. Bouve, could conjure up a raft of such “plausible distinction(s)” before breakfast. Among them: Legal immigrants have been checked for subversive ties, contagious diseases, and have some qualification to be here other than “lives within walking distance.”

But most important, Americans have a right to decide, as the people of other countries do, who becomes a citizen.

Combine Justice Brennan’s footnote with America’s ludicrously generous welfare policies, and you end up with a bankrupt country.

Consider the story of one family of illegal immigrants described in the Spring 2005 Journal of American Physicians and Surgeons:

“Cristobal Silverio came illegally from Oxtotilan, Mexico, in 1997 and brought his wife Felipa, plus three children aged 19, 12 and 8. Felipa … gave birth to a new daughter, her anchor baby, named Flor. Flor was premature, spent three months in the neonatal incubator, and cost San Joaquin Hospital more than $300,000. Meanwhile, (Felipa’s 19-year-old daughter) Lourdes plus her illegal alien husband produced their own anchor baby, Esmeralda. Grandma Felipa created a second anchor baby, Cristian. … The two Silverio anchor babies generate $1,000 per month in public welfare funding. Flor gets $600 per month for asthma. Healthy Cristian gets $400. Cristobal and Felipa last year earned $18,000 picking fruit. Flor and Cristian were paid $12,000 for being anchor babies.”

In the Silverios’ munificent new hometown of Stockton, Calif., 70 percent of the 2,300 babies born in 2003 in the San Joaquin General Hospital were anchor babies. As of this month, Stockton is $23 million in the hole.

It’s bad enough to be governed by 5-4 decisions written by liberal judicial activists. In the case of “anchor babies,” America is being governed by Brennan’s 1982 footnote.

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  • Pam Pinson Bates

    We should not give legal status to a baby born in America to illegal immigrants… The parents should be jailed for a short time and the baby deported to the country of the illegals and placed in foster care there until the parents are released and return to their country to find their baby! This would cut down on that crap in no time!

  • Mrs. Ming

    Usually I don’t agree with Ann on anything except my choice of lipstick. But I agree with her on this one wholeheartedly. The current immigration system is willful ignorance.

  • Mark

    All the TV pundits, lawyers, and Democrats are on the air slamming the Trump proposal as a violation of the 14 amendment. Ann needs to get out and make her case.

  • skepticR

    It doesn’t matter what the author intended. What matters is what the author actually wrote. Anybody who has ever had to sign a contract knows that. So constitutional literalists have no grounds for claiming this was somehow snuck in by liberals. If they didn’t intend to include children of illegal immigrants they could have easily said so in the amendment. But they didn’t. I don’t agree with it but from a strict reading of the wording of the amendment Brennans interpretation is correct. If you don’t like it stop whining and change the constitution

  • TexasGranny

    I too acknowledge the intent, however, “the footnote was not part of holding in the case. The holding did not depend o the citizenship clause, jurisdiction clause and for all these reasons Brannon’s polymer statement on this issue are neither binding or convincing.” Not whining but have a tad bit hope.

  • Michael Galleher

    Here’s a small piece of advice. If you have literally no clue what you are talking about and zero qualifications to speak on the issue? Don’t. Your post was flawed in it premises, factually and legally incorrect.

  • spintreebob

    Ann’s knowledge of history is not as good as her ability to be outrageous.
    1) Literal reading of the Constitution is what many of us support. The words say what they mean and mean what they say (except ACA). The 14th grammar is very clear and cannot be interpreted anyway except literally.

    2) When the 14th was written and passed and debated in court, there was no such thing as an illegal immigrant. It wasn’t until the 1920s that there was such a thing as an illegal immigrant.

    3) Pre 1920s immigration law specified undesireables and then listed prostitutes, vagrants, Chinese, felons, etc. Local law enforcement was extremely diligent in enforcing immigration law from 1790 to 1920 and even to ted1970. I facilitated the Chicago Police deporting immigrants in the ’60s. This was all pre-Brennan.

    4) Immigrants DID come to this country precisely to have anchor babies that would be citizens precisely because they wanted a better life for their children…or at least the possibility of a better life as some intentionally came here, had their baby, then went back to the old country knowing their children always had the opportunity to return. And, of course, many did not go back to the old country.

    5) Problems and challenges exist. Outrage by the professionally outraged like Ann with no facts or logic (relevant facts or logic) is not the way to deal with this topic.

  • OsborneInk

    Elided from Ann’s history: United States v. Wong Kim Ark, 1898, in which the court rejected the argument that Congress could disinclude any nationality of immigrants from naturalization. Ann has in fact raised the case which started the anti-birthright citizenship *movement* within nativist circles as if it was the creation-date of birthright citizenship, but to get there she ignores a century of precedent. It’s typical nonsense from someone who has long since crossed over the line into professional bigotry.

  • Okeydoker

    Douglas was truly one of the more vile and loathsome dirtbags to be appointed. A disgrace to the legal profession.

  • davidfarrar

    Donald Trump is more anti-immigration than I am; he’s my huckleberry

  • davidfarrar

    The Congressional record is crystal clear on this point: the original intent of the 14th Amendment was to “constitutionalize” the Civil Right Act of 1866, nothing more. The CRA called for only “stateless” persons born on American soil to be U.S. citizens at birth, such as former slaves and Indians not taxed.

    Illegal aliens are not stateless people, nor are their offspring born here. For persons born under the sovereignty of another foreign power, there is no magic soil of citizenship, or, at least, there shouldn’t be. Only a transfer of allegiance to support and abide by the U.S. Constitution can transfer U.S. citizenship at birth from at least one U.S. citizen parent. Art. II §I Cl. 5 natural born Citizens are those born under exclusive U.S. sovereignty.

  • Scott825

    Ann Coulter said: “Democrats act as if the right to run across the border when you’re 8 1/2
    months pregnant, give birth in a U.S. hospital and then immediately
    start collecting welfare was exactly what our forebears had in mind, a
    sacred constitutional right, as old as the 14th Amendment itself.”


    Not just Democrats, that’s about what Charles Krauthammer said on Brett Baier’s show this evening.


  • rickg62

    I’m sorry but the wording of the law specifically mentions the exclusion of foreigners and aliens. The only wiggle room that I see in the liberal interpretation would be with the punctuation used in the amendment. My guess would be that they interpret the mention of ambassadors and such as defining the terms foreigners and aliens rather than just two more examples of exclusions. I would favor the second interpretation and see the commas after foreigner and alien as a normal listing of groups with the “or” between the final two terms as a choice between using or and “and”.

  • Tomasa Rodriguez

    News host Bill O’Reilly, should give an apology, for not knowing the meaning of
    the 14th Amendment.

  • Frederic Freeload

    Rubio … “Plan can’t work” He is the problem not the solution… This plan has to work or we will be buried in non productive drains on our social services while Mexico prospers by exporting their poor…

  • TiredOfMorons

    ummm… Brennan?

  • TiredOfMorons

    He’s wrong too.

    He used to be smarter.

  • TiredOfMorons

    They could hardly have said so in the amendment, as there were no illegal immigrants at that time.

    Senators Turnbull and Howard are very much to blame for insisting on using the phrase “subject to the jurisdiction thereof” when it has both a usual and esoteric meaning, the latter of which they had to immediately explain was the intended meaning. But given that they both wrote it and explained it before the vote amending the citizenship clause into what became the 14th amendment it’s rather retarded to insist that the meaning not intended is either more “literal” or “strict” than the intended meaning.

    Replacing the 14th Amendment with one better worded is fine, but hard. But, pending that, there is no need to continue to punish the American people by enforcing an error.

  • TiredOfMorons

    That’s not the amendment, it’s Howard’s explanation of the meaning of an amendment to the proposed Amendment. It was verbal. The punctuation was supplied by the transcriber. Birthers like to read it as “This will not, of course, include persons born in the United States who are foreigners/aliens belong[ing] to the families of ambassadors or foreign ministers.” The problem with that is that the end of the sentence reads, “, but will include every other class of persons.” And we know that tribal Indians were to be excluded, presumably as aliens, so that Howard’s words must be specifying three categories and not one.

  • TiredOfMorons

    Whom might you be addressing? If you know any facts or law it’s not evident in this note. Perhaps you should do better or take your own advice.

  • TiredOfMorons

    “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.)”

    That’s what she wrote. You can’t read?

    It’s slightly wrong. The holding applied to offspring of legal immigrants “domiciled” in the US with no reference to their gainful employment except in the syllabus (summary header) which is not part of the decision. But that’s not nearly as much a howler as your thinking the case had anything to do with naturalization.

  • James Crooke

    Time to take it back to the supreme court and let them make another decision or have congress clarify the issue.

  • Fedup Veteran

    Why is it “sleazy Southern states”? There were just as many, if not more, slaves in the North, including those owned by Anthony Johnson (a black man) and Ulysses S. Grant! So get over yourselves and quit bashing the South. Not all Southerners are dumbocrats!

  • Fedup Veteran

    No, there is no need to jail them and feed them. Deport them ALL back to the Mexican side of the Southern border and let them find their own way back to their native country. We didn’t provide them transport to the Southern border from that country!

  • Josh

    … While I definitely agree the “sleazy Southern states” comment was out of line, can you tell me where you get your numbers, that there were equal, if not more slaves in the North (assuming by “the North” you mean Union states)?