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
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.
However you ignore the issue of being a resident at the time of birth. By example, lets say a woman living in NH gives birth in VT and returns to NH. Was the child ever a citizen of VT with rights to their health care programs ? Answer:No. The child was never a resident of VT at the time of birth.
Questions regarding residence are common in tax law and the answers are not black and white. They lend themselves to being decided by the facts and circumstance in each case.
Lev19:33 " 'When an alien lives with you in your land, do not mistreat him. 34 The alien living with you must be treated as one of your native-born. Love him as yourself, for you were aliens in Egypt. I am the LORD your God.
Just about everyone.
Go to the Code of Federal Regulations and look up the definition of United States. The majority of the time, it's defined as Washington D.C., American Samoa, the Virgin Islands and Alaska and Hawaii before they became states.
Article 1, Section 8, Clause 17
To exercise exclusive Legislation in all Cases whatsoever, over such District (not exceeding ten Miles square) as may, by Cession of Particular States, and the Acceptance of Congress, become the Seat of the Government of the United States, and to exercise like Authority over all Places purchased by the Consent of the Legislature of the State in which the Same shall be, for the Erection of Forts, Magazines, Arsenals, dock-Yards, and other needful Buildings;--
Anything inside that geographic limitation and with the exception of property OWNED by the Federal government in other states is all the 'United States' consists of. Everything else is just a 'State' and should be populated with AMERICAN NATIONALS not 'United States Citizens'.
Legal immigrants in the process of acquiring citizenship clearly fall under the "subject to the jurisdiction thereof" clause (they are in the country under proper legal authorization and are answerable to American law). Thus, children born to such persons on US soil are immediately US citizens.
Of course, the problem isn't with legal immigrants.
I concur. I think the only way to prevent the misuse of the 14th would be to repeal it in toto or at least in part.
Citizenship shold depend upon blood--by which I mean: if one of your parents is a citizen, you are a citizen, regardless of locale; if neither is, then neither are you, regardless of locale. This interpretation or modification of the 14th has about as much chance of being implimented as porcine aviation.
--Boris
Exactly. Simply being born on US soil did not originally mean automatic citizenship if the parents came from a foreign country and were not residents. That is what Indian tribes are considered and what the Elk decision confirmed.
Congress properly remedied that for American Indians in 1924 which is their right under the jurisdiction clause to do.
Illegal aliens are claiming they are residents and are paying taxes, therefore they qualify. But that is a stretch since at best it's only sales tax they pay, and quite a few of them are coming across the border solely for the purpose of giving birth.
Granting automatic citizenship in those cases is a violation of the spirit of the 14th Amendment and not how it was intended to be applied.
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