Supreme Court To Hear Birthright Citizenship Case

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.

Why Yaser Hamdi is not a U.S. Citizen: FILE's motion to intervene in the Hamdi case (FILE)

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)

"[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.)

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.

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.

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.

Any person physically on US territory is subject to US jurisdiction, unless that person has diplomatic immunity, or is an American Indian on his tribal land, where such land is recognized by treaty as the sovereign territory of the tribe. Persons who can rightfully argue in Federal court that the court has no authority over them are the only persons not "under the jurisdiction" of the US.

I guess I'm seeing this from a different perspective.

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.

"Subject to jurisdiction" means more than than just physical presence on the soil, it entails sworn allegiance to the country as well as being a citizen. That was confirmed by the fact a tribal woman could give birth in a city hospital but not have her kid granted automatic citizenship. Why not if he or she was born within the territory of the country and subject to the jurisdiction of the US?

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.

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?

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.

"Subject to jurisdiction" means more than than just physical presence on the soil, it entails sworn allegiance to the country as well as being a citizen.

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:

Law. The right and power to interpret and apply the law: courts having jurisdiction in this district.
- Authority or control: islands under U.S. jurisdiction; a bureau with jurisdiction over Native American affairs.
- The extent of authority or control: a family matter beyond the school's jurisdiction.
The territorial range of authority or control.

Even accepting your definition of "subject to jurisdiction" at its face value without the sworn allegiance and citizenship requirements how do you explain the fact that prior to 1924 American tribal Indians could give birth in a public hospital and their kid be denied automatic citizenship? You haven't answered me on that.

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.

A child who has just been born is neither physically nor legally capable of swearing allegiance to anything. Most adults, born in this country to parents who were US citizens at the time of the child's birth, have never taken any oath of citizenship. But are they nevertheless citizens, under the 14th Ammendment?

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.

A child who has just been born is neither physically nor legally capable of swearing allegiance to anything.

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.

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.

"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.

"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."

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.

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.

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.

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