Posted on 02/17/2004 7:39:20 PM PST by CIBvet
+== TIME-OUT PROJECT ==+
Friends of Immigration Law Enforcement filed a motion in the case of Saudi Arabian Taliban fighter, Yaser Esam Hamdi. Hamdi is considered by the government to be an American citizen because he was born in Louisiana to Saudis who were here on a temporary work visa. While still a tot, Hamdi's parents returned to Saudi Arabia with him, where he lived until he went off to join a terrorist group trying to kill Americans in Afghanistan. This man is not American in any real sense, of course, and the Supreme Court now has a historic opportunity to end the absurd custom of "birthright citizenship."
The Supreme Court has agreed to hear the case of Yaser Esam Hamdi, the captured Taliban fighter who was originally incarcerated with other captured enemy fighters at Guantanamo Bay, Cuba, but who was moved to the naval brig at Norfolk when, after it was discovered he has an American birth certificate, he was declared an American citizen.
Since the discovery of his birth in Louisiana (to Saudi nationals in the United States on temporary work permits), Hamdi has been at the center of a major legal battle.
On one side, Hamdi's public defender argues that, as an American citizen, Hamdi has certain civil rights.
On the other side, the government argues that, as an American "enemy combatant," Hamdi loses some of those rights.
Both sides, however, are essentially arguing an imaginary point, since Hamdi is not an American citizen in spite of his birth in Louisiana. There is nothing in the Constitution, in Federal law, or in case law anywhere that mandates U.S. citizenship by virtue of being born on U.S. soil.
The custom of granting of automatic birthright citizenship to the U.S.-born offspring of temporary workers, tourists, and illegal aliens is nothing more than that: a custom, and the pervasive myth that the U.S. Constitution grants birthright citizenship to anyone born on U.S. soil is simply that: a myth.
In the Hamdi case, the Supreme Court will be wrestling with some important questions concerning the civil liberties guaranteed to the citizens of a free republic. Such questions should not be decided in a case in which the plaintiff is not even a citizen a case in which the premises are founded in myth and habit.
Since Yaser Esam Hamdi is not an American either by virtue of the law or by virtue of common sense a prior question of fact in his case is fundamentally flawed, and deciding weighty citizenship issues based on this case is like deciding important international trade issues based on a case involving the toys Santa Claus brings.
Unfortunately, the baseless American habit of granting birthright citizenship to anyone whose mother happens to be in the United States at the time of his or her birth is not just some harmless and quaint American tradition like singing the national anthem before baseball games. The birthright citizenship custom, which accounts for an estimated 250,000 new "anchor baby" citizens every year, is one of the primary magnets luring to our shores foreigners who want to increase their consumption levels.
This custom is responsible for the spectacle of women in labor dragging themselves through the Arizona desert in order to give birth to their very own tickets into the American social services network. It also accounts for the burgeoning industry in Asia known as "birth tourism," which arranges U.S. tourist visas for pregnant Asian women to coincide with their delivery dates so that they may give birth to their and their extended families' very own American "anchors" in the United States.
However, birthright citizenship is not a law of nature, it is not a commandment from God, and it is not a cultural imperative. It is nothing more than a destructive and unsustainable custom, and it is time we put a stop to this assault on the very meaning of citizenship.
In the Hamdi case, the Supreme Court has a historic opportunity to do away with this wrong-headed practice and make explicit, after nearly a century and a half, the very limited intentions of the authors of the Citizenship Clause of the Fourteenth Amendment. Let's hope the Justices rise to the occasion.
+== RELATED LINKS ==+
Group argues U.S.-born detainee is not an American citizen ( Associated Press on FILE's 2002 motion in Hamdi case)
Closing the Loopholes to Easy U.S. Citizenship (St Petersburg Tribune on FILE's 2002 motion in Hamdi case)
Rescuing U.S. Citizenship (VDARE on FILE's 2002 motion in Hamdi case)
The Basic Right of Citizenship (CIS)
Why Yaser Hamdi is not a U.S. Citizen: FILE's motion to intervene in the Hamdi case (FILE)
Wrong Question in Hamdi (Ashbrook Center)
+== TAKE POSITIVE ACTION ==+
In August 2002, while the Hamdi case was still bouncing around the Fourth Circuit, Friends of Immigration Law Enforcement (FILE) recognized both the legal dangers involved in the Hamdi case, as well as the historic legal opportunity the case provides to dispose of the absurd and destructive custom of birthright citizenship.
FILE filed a motion to intervene asking the Fourth Circuit to dismiss the Hamdi case on the grounds Hamdi is not a citizen.
The court never ruled on FILE's motion, but within the next few weeks, the group will again attempt to have the question of Hamdi's citizenship adjudicated this time as an amici on a brief filed with several other respected organizations, and backed by members of Congress.
FILE welcomes the opportunity to join The Center for American Unity and others in filing the amicus brief before the Supreme Court. We will have more news about this important event as the filing date draws near.
In the meantime, to add weight to the brief, we need to begin to generate some support in the U.S. Congress for ending legislatively the abuse of the Citizenship Clause.
We already have some Congressional backing, but we need to reinforce it. The best way to do that is by going to the NumbersUSA fax center and sending a free fax to your representative in Congress asking him or her to co-sponsor H.R.1567, the Citizenship Reform Act of 2003, which would amend the Immigration and Nationality Act to deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens.
Just go to http://www.numbersusa.com/fax and click on "anchor babies." (If you haven't registered for NumbersUSA's excellent and very effective "fax Congress free" system, yet, what are you waiting for?)
(Special note to all of you who responded last week to our appeal for donations: I want to personally say thank you for a really great response, and remind you that when you support ProjectUSA, you are also supporting our sister organization, Friends of Immigration Law Enforcement (FILE). In other words, donating $50 to us is really like donating $100 since you are helping two very effective organizations at the same time! Craig)
+== QUOTE OF THE WEEK ==+
"[The Fourteenth Amendment] 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 accredited to the Government of the United States, but will include every other class of persons."
Senator Jacob Merritt Howard of Michigan Introducing what would later become the Fourteenth Amendment in 1868
(The Fourteenth Amendment to the Constitution, often wrongly cited as the Constitutional requirement for birthright citizenship, was enacted in order to guarantee recently freed slaves the rights of citizenship. It was never intended, as the quote above by one of the Amendment's authors makes clear, to grant birthright citizenship to the offspring of tourists, illegal aliens, and temporary workers.)
+== EMAIL OF THE WEEK ==+
To start with, I am not an American citizen, but I think all of you Americans should exercise your constitutional right to keep your country free of outside influences that affect your individual freedom and your distinctive identity.
We cannot deny the fact that you are still considered as the "land of opportunity", but you have to carefully choose your fortune hunters.
Therefore, I added my name to your list to be presented to Mr. Ashcroft only to emphasize the fact, that as an outsider, I am more enthusiastic about your cause than so many Americans who are still asleep, and to Mr. Ashcroft himself, who is still blinded by his "generous and/or naive" personality. I still highly value the brief time that I have spent in your country, when I was an undergraduate student in Fresno, CA. Thank you for this memorable experience, and I mean those Americans whom I had encountered.
I hope that the Americans will rise to the challenge of keeping America great as it always was, for the years to come.
Ihsan Omet
Amman, Jordan
Slaughterhouse Cases, 83 U.S. 36 (1872) (USSC+)
Opinions
MILLER, J., Opinion of the Court
"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 first observation we have to make on this clause is that it puts at rest both the questions which we stated to have been the subject of differences of opinion. It declares that persons may be citizens of the United States without regard to their citizenship of a particular State, and it overturns the Dred Scott decision by making all persons born within the United States and subject to its jurisdiction citizens of the United States. That its main purpose was to establish the citizenship of the negro can admit of no doubt. The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.
and...
the pervasive myth that the U.S. Constitution grants birthright citizenship to anyone born on U.S. soil is simply that: a myth.
The US Constitution says:
Amendment XIV
(1868)
Section 1. 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. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.
You argument rests upon the clause "and subject to the jurisdiction thereof". The customary interpretation rests upon a simple reading of the entire sentence.
To claim there is NO BASIS and it is a MYTH is a big over statement, in my opinion.
In the case in question the fellow from Saudi Arabia is certainly "subject to the jurisdiction thereof" by virtue of the fact that he is being tried by the US government.
I support the Constitution, even when it is inconvennient. I also would support repealing parts of the 14th Ammendment.
Yup. This is definitely a part of the Constitution that was originally conceived to guarantee liberty, but is now being used as a crutch and loophole for every shiftless parasite that doesn't want to take responsibility for the mess their own country is in. So, they come here, make babies, and pick our pockets for sustinence. Well, I, for one, am tired of being the feeding teat for the sick, lame, lazy, and dangerous, when my own family is left wanting.
Even under the original intent of the 14th, "under the control of", this case probably meets that threshold since the defendant's parents were legally residing in the US and therefore were "under US control".
As with the Second Amendment and the right of individuals to bear arms the authors of the 14th Amendment made their intentions clear in their writings. Automatic citizenship was never meant to include children of illegals. Let's see if this Supreme Court gets it.
Where do you draw the line? It looks like it should allow denial of U.S. citizenship to the children of illegal aliens or Asian tourists, but what about legal immigrants who are intending to become citizens but haven't been in the U.S. long enough to complete the process?
During the heyday of European immigration to the U.S. in the decades before 1921, there were a lot of children born to immigrants who grew up as Americans. Many of them gave their lives for the United States in WWI or WWII, or served honorably before producing hordes of monolingual third-generation Americans. Is the citizenship status of people born in the U.S. to legal immigrants to be questioned?
What matters is not what the authors said elsewhere that they meant, but what they actually wrote in the Constitution. Though in the case of illegal immigrants a case could be made that if they were subject to the jurisdiction of the U.S., they'd have already been deported.
Yes but there is no legislative or Court mandate to recognize the children of illegals as automatic citizens, the Supreme Court has so far only ruled on those born to legal immigrants.
The "subject to jurisdiction" clause left it up to Congress to determine who would qualify, since illegals are not US citizens they can be excluded. If that wasn't the case why in 1924 did Congress write special legislation to make Native Americans subject to inclusion of the 14th Amendment? Prior to that their kids were not automatic citizens.
I think the point is that he is not being tried by the US government.
someone who renounces citizenship and resides elsewhere. For me the issue is not jurisdiction because I think unlike the place of birth, jurisdiction is changeable. I think the issue is at then end of the sentence which requires "residence". Its clear that a child born here while its parents are visiting isn't in any sense a resident.
They had in mind the following: members of American Indian Tribes, while on tribal land, provided the Tribe had status as an independent, sovereign nation; persons in the US under diplomatic immunity. Those are the only persons within the country's borders who were not (at the time the Ammendment was written) legally obligated to subject themselves to Federal sovereignty over their persons. Such persons, if brought before a Federal magistrate, could rightfully argue that the court had no jurisdiction over them.
So prior to 1924 when Congress recognized American Indians as being included in the 14th Amendment what would have been the case if a woman who was a resident of a tribe went to a city hospital to give birth? Even though the hospital would have been within the boundaries of the US automatic citizenship was denied to her kid because she was not technically a citizen of the US. That's my understanding of how the law worked.
The same can be said of illegal aliens... they are not residents of this country and can be excluded unless Congress, as they did with American Indians chooses to include them.
Our rights are inalienable, God-given, and a component of our humanity. People possess the exact same rights whether they were born in America or Saudi Arabia. Whether the country oppresses these rights, or allows the free exercise of them, matters not - the individual, every individual in fact - still has them.
The Constitution does not grant us rights; it merely enumerates the ones we already possess by virtue of our humanity. A person cannot "receive" rights from the government or have them "taken away." The government can only prevent their exercise under certain circumstances.
This is very different from the "entitlement" programs, social "perks" and "programs," and other benefits associated with being an American citizen. However, these are NOT rights and ARE subject to withholding for non-citizens.
I wish, sometimes, that folks would be clearer on this. It would make these debates a lot easier.
Just my two cents.
The fact is there were exceptions to the 14th Amendment, even when those kids were born in a city hospital on US soil. Children of illegal aliens are granted automatic citizenship not because of any court or legislative mandate, but out of tradition and only that.
Not quite. See post #5.
Not at all. It's very simple. According to the Constitution they are not citizens. When their parents are naturalized so are their minor children. If the children reach the age of majority before that time and qualify for naturalization by fighting for America or other appropriate means, I see no reason why Congress would not pass laws defining and securing such means. That is how it was intended and should be.
Your definition is circular. Your statement reduces to "you're a citizen if you've agreed to be a citizen."
The 14th Ammendment is does not establish a protocol for determining, moment by moment, whether or not someone is a citizen. One does not become a citizen by virtue of coming under US jurisdiction, and then lose citizenship upon exiting--perhaps several times in an afternoon, if one lives very near a national border. From the language, the context of the times, and the preceding logic, it is clear that the question of jurisdiction clearly was meant to be of import at precisely one moment, and only at that moment: the moment of birth.
And the meaning of jurisdiction is also perfectly clear. It's dictionary definition:
The Supreme Court ruled in 1884 against an American Indian named John Elk, who despite being born in Nebraska territory and outside his tribe was not considered a citizen.
The majority opinion of the Court read:
The evident meaning of [the jurisdiction phrase] is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. Indians born within the territorial limits of the United States … although in a geographical sense born in the United States, are no more ‘born in the United States and subject to the jurisdiction thereof’ within the meaning of the [Citizenship Clause], than the children of subjects of any foreign government born within the domain of that government…
That Court's decision has never been overturned and explained why in 1924 Congress provided legislative relief to American Indians. The Court ruled btw children of illegal aliens are not citizens of this country.
And what of the children of illegal aliens, born in this country, who swear an oath of citizenship? Does swearing that oath, in Spanish, in front of their parish priest, make them citizens? If not, then you must admit that it is circular reasoning to require that a person must be a citizen (i.e., "owe direct and immediate allegiance" to the US) in order to become a citizen.
To "owe direct and immediate allegiance" to a country, is to be a citizen of that country. To argue, as the majority SC opinion that you cite does, that John Elk is not a citizen because he does not "owe direct and immediate allegiance" to the US, is to circularly argue that Mr. Elk is not a citizen because he is not a citizen.
But the real acid test is this: the 14th Ammendment's primary purpose, the fundamental reason it was adopted, was to make citizens out of those who had been slaves, who had not legally been citizens before the adoption of the Ammendment. Which interpretation of the Ammendment has the desired effect, and which does not?
If we interpret the Ammendment to mean that only the children of citizens become citizens, then the Ammendment cannot have the intended effect, because the slaves were not the children of citizens. This shows the interpretation you prefer, and which the Supreme Court long ago sanctioned, to be seriously at odds with the original intent of those who wrote and adopted the 14th Ammendment.
That is very true, which is why the Court in 1884 ruled the status of the parents of a child born within the territory of the United States determines whether or not the child is eligible for U.S. citizenship. It is their allegiance to the country that matters, not their kid's.
But the real acid test is this: the 14th Ammendment's primary purpose, the fundamental reason it was adopted, was to make citizens out of those who had been slaves, who had not legally been citizens before the adoption of the Ammendment.
Absolutely, that was what the 14th Amendment's original intent was, to give legal status to the former slaves and their offspring. Foreigners were not part of the deal, the framers of the Amendment said as much and the Court of 1884, which has yet to be overturned correctly interpreted it.
If we interpret the Ammendment to mean that only the children of citizens become citizens, then the Ammendment cannot have the intended effect, because the slaves were not the children of citizens.
Not really because with the ratification of the 14th Amendment former slaves were granted citizenship, which means their kids would fall under the automatic citizenship clause. Legal immigrants who swear an oath of allegiance to the country and become citizens are also included. The Supreme Court ruled that way in United States v Wong Kim Ark of 1898 and it still stands to this day.
That's absolutely not correct. Wong's parents specifically did not owe the US allegiance, but were here temporarily. At the time, Chinese immigrants were forbidden from ever applying for citizenship, under the Chinese Exclusion Act. The Wong decision was based not on the allegiance of the parents but the simple fact that they were resident, not diplomats, not "Indians not subject to taxation," and not part of an invading army.
The bottom line is that SCOTUS isn't going to give you the answer you want. Wong makes the citizenship aspect Hamdi's case open-and-shut: Wong's parents were here every bit as temporarily as Hamdi's, so Hamdi is a US citizen. (He may still lose his case, but it will be due to the government's argument, not FILE's.) And there's no chance at all SCOTUS will overturn Wong.
The very best you can hope for is that Rehnquist can steer the majority away from the issue of illegal aliens altogether. At worst, Wong will be confirmed and extended to cover illegal aliens. Anyone who thinks a majority of this Court is eager to revoke the citizsenship of a million Hispanic children is a fool.
Elk wasn't a citizen because he was born not on US land but on land belonging to a tribe not subject to taxation and thus not under the jurisdiction of the US. Elk could no more claim citizenship than the child of a diplomat or a child born in a foreign nation could, and the majority in Elk v. Wilkins stated it exactly that way. If anything, Elk v. Wilkins can be twisted to support birthright citizenship: Unlike foreign diplomats and Elk's Indian tribe, illegal aliens are subject to taxation and to the rule of US law.
How does the language of the 14th Ammendment bestow citizenship upon the former slaves? It nowhere says "all those who used to be slaves are hereby granted citizenship." All it says is the following:
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.
No interpretation of those words that does not obviously bestow citizenship on the former slaves can possibly be valid. The interpretation that requires that only the children of citizens become automatic citizens by birth fails to do that, and is therefore provably incorrect.
In reading over the various quotes and comments on this thread, it appears to me that the most reasonable interpretation of that clause is that it was intended to specifically exclude persons born within the physical boundaries of the US but in areas not under its jurisdiction. For example, persons born within foreign embassies (which are considered extraterritorial and under the jurisdictions of other nations) and persons born within Indian tribal reservations (which were not considered within the formal jurisdiction of the US).
That would explain the 1868 quote by Senator Howard referring to "families of ambassadors or foreign ministers", and it would explain the Supreme Court's actions with regard to John Elk. It is not the only possible explanation, but it is certainly a plausible explanation -- one which remains consistent with the long-standing historical interpretation that any baby born in the US is automatically a citizen.
have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution".
The issue of granting children of illegal aliens automatic citizenship has never been addressed directly.
The bottom line is that SCOTUS isn't going to give you the answer you want. Wong makes the citizenship aspect Hamdi's case open-and-shut: Wong's parents were here every bit as temporarily as Hamdi's, so Hamdi is a US citizen.
Supreme Courts have overturned themselves many times. Plessy v Ferguson and Brown v Board of Education is one example. That's what the Hamdi case is about, that this Supreme Court interprets the 14th Amendment as it was written, which did not include temporary or illegal foreigners in the mix.
The Fourteenth Amendment was originally ratified to protect the freedman from the abrogation of his rights by the Southern states. Looking to protect the African American, the amendment made him a citizen and forced the federal government to be responsible for him. The Fourteenth Amendment prohibited the States from denying or abridging the fundamental rights of every citizen and required them to grant all persons equal protection and due process."
After the Civil War former slaves were made citizens, so their kids would fall under the automatic citizenship clause.
Even if this Court finds that children of illegal aliens are not protected by the 14th Amendment I do not believe most already born here will be booted out, they'll likely be grandfathered in somehow. But it will apply to future births. The US is only one of a handful of countries that grants such privileges, it's outdated and high time it was reformed.
But that was not the sense of the phrase in 1868. It meant that someone was to be regarded as a "subject" or "national" of a political entity - a kingdom or republic, what ever the situation. Therefore, that person would be "subject to the jurisdiction" - of their specific sovereign.
It didn't mean that they could not be tried for a crime in the United States - but it could mean that their status in such a trial might be different from someone "subject to the jurisdiction" of the United States. Note that this operates even today, where a certain group of people are now being denied the right of jury trial, based on their lack of nationality, and status as "enemy combatants" or "terrorists".
So the phrase "not loyal to" or "not subjects of" could be construed as being congruent with the notion of not being "subject to the jurisdiction of". The United States was, in 1868, unique in that the sovereign was the people themselves, with the state being their elected surrogate. Perhaps for that reason, and an aversion to using the old monarchial term of "subject", the Radical Republicans who wrote the 14th used the more obtuse phrasing.
But, as Carry_Okie points out with the Slaughterhouse case, that was what the judges of the time easily recognized as being the intent.
The actual outcome of FILE's argument may be less obvious. In the 1898 Wong Kim Ark case, the court referred to the concept of "Sojourners" to legitimize the citizenship of Ark, who was born in San Francisco to Chinese parents who were not citizens, and who subsequently left the U.S. to return to China. Even though the parents were admitted to be "subjects of the Emperor of China", i.e., subject to his jurisdiction, they were considered to be Sojourners temporarily subjects of the American state. This concept is based on English Common Law, which essentially made anyone in England subjects of the King. Kings tend to like the concept that everyone is beholden to them, so even if you were a foreigner in Merrye Olde England, he owned you. Your offspring during such sojourns were also considered the King's subjects.
Based on this interpretation, I think Hamdi might have an argument for his citizenship. But I don't accept Ark as legitimate; I think it was bad law then, and worse law now.
We'll see what the court thinks. Considering the recent decisions of this 'court', I'm not optimistic. In fact, it may be an opportunity for a really BAD precedent to be set.
Reaganwuzthebest is correct. See my previous post for some similar commentary with regard to the difference between geographic jurisdiction and nationality/allegiance.
For me its easy. The child was not a resident of the US which is expressly required by the last part of the sentence in the constitution.
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