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.

You are right and it is a big overstatement. Actually it is WRONG to say there is no case law on this. In 1890's in the Yee decision, the Supreme Court said that children born in the US to legal residents were automatically citizens. This has been treated as any children are automatically citizens ... this case is similar enough that it is a bad case to try to end the 'anchorbaby' problem. The real solution has to come from an ACT OF CONGRESS, that restricts the citizenship of those born by defining "under the jurisdiction" to mean long-term legal residents or citizens. But without EXPLICIT Conressional action, the USSC will follow precedent and decide for the terrorist, IMHO:

"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."

Since all other kids born to parents are given automatic citizenship, why not him? It's the current law. There is NO place for the Supreme Court to decide this any other way, because there is NO LAW DENYING SUCH CITIZENSHIP. If we want to stop this, we need to GET CONGRESS TO ACT.

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).

Correct!

But there is an additional aspect to "under the jurisdiction" which includes whether the parents are really a member owing allegiance to a foreign entity. If a barbarian horde invaded Montana, set up a foreign potentate on US land, would their kids be US citizens? Then what of other 'uninvited' persons like illegal aliens? How are they different? The answer is that it can be interpreted different ways, but clearly the 14th Amendment *allows* exceptions where the "jurisdiction" is unclear. Which is why, if we get the Congress to act, we can pass a Constitutionally valid law that defined 'the jurisdiction' to exclude those babies born to women here in the US on tourist visas and those here on now visas at all, ie, illegal aliens. In both cases they are not subject to the jurisdiction of the United States for the purposes of that clause, no more than diplomats are. But without Congressional action, the presumption of the courts will be the other way in favor of birthright interpretation. JMHO, based on cursory look at the case law. ... For more, go to Vdare.com's article on this subject.

...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.

You don't have to be a U.S. citizen to be tried by the U.S. Government for war crimes. (See: Nuremberg Trials)

"Jurisdiction thereof" refers to the legal status at the time of birth and not getting arrested for a crime later in life.

For example, was his father subject to be drafted by the U.S. Government at the time of his birth as was a similar U.S. citizen or legal resident alien? Or were both of his parents foreign citizens?

In the late 19th Century and early 20th Century, American Indians were considered members of "Indian nations". That is why they were not considered U.S. citizens simply by being born on U.S. soil inspite of the XIV Amendment.

That did not change until the passage of the 1924 Indian Citizenship Act

"Be it enacted . . ., That all non-citizen Indians born within the territorial limits of the United States be, and they are hereby, declared to be citizens of the United States: Provided, That the granting of such citizenship shall not in any manner impair or otherwise affect the right of any Indian to tribal or other property. Approved, June 2, I924. "

If your interpretation of the XIV Amendment were correct, there would have been no need to pass the 1924 Indian Citizenship Act.

You are a citizen of the United States, there is no other way to become a citizen.

True, but where does it say you have to be a citizen to reside here?

Hamdi is considered by the government to be an American citizen because he was born in Louisiana

There are U.S. Citizens and American Nationals...no such thing as 'American Citizen'.

Why does it seem so hard for folks to understand that America and the United States are two totally seperate things?

But without Congressional action, the presumption of the courts will be the other way in favor of birthright interpretation.

Thank you for your very good analysis. Some people on this thread apparently think that they can read their own interpretation into the 14th Amendment, conclude that it is the only possible correct interpretation, and that it should therefore only be a matter of getting the U.S. Supreme Court to hear a case for it to overturn its previous decisions and eliminate "anchor babies".

The fact is that the current historical usage is a very plausible one, albeit one which may be subject to modification by Congress if Congress were to specify what constitutes "subject to jurisdiction". But it will take at least an act of Congress, and possibly a Constitutional Amendment, to change the status quo. The courts are not going to change it on their own, nor is there any strong legal reason for them to do so.

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.

That is just a definition used in the CFR. That definition in no way limits the Constitutional jurisdiction of the United States.

Everything else is just a 'State' and should be populated with AMERICAN NATIONALS not 'United States Citizens'.

Utter nonsense. What is the difference between an American National and a United States Citizen? There is no such thing as a citizen of a State, only of the US.

Yes, we agree. Congress needs to act to fix this. And reasonable original intent interpretation of the 14th *should* allow the Congress to fix this and forbid 'anchor babies' from illegal aliens ...

"But it will take at least an act of Congress, and possibly a Constitutional Amendment, to change the status quo."

IMHO, the Constitutional Amendment would only be required if the Courts overstep their bounds and read out the "jurisdiction" clause completely from the 14th. But since we've seen egregious overreaching in courts before, eg, recent gay marriage ruling, I wouldnt put it past the courts to create a 'birthright' right that's not really there.

Er, no. The question raised was about legal immigrants, who clearly are "subject to the jurisdiction" of the United States (as opposed to illegal aliens, whose very presence here is a testament to their evasion of that jurisdiction).

Er, no. The Slaughterhouse Cases address children of LEGAL aliens. Allow me to excerpt the critical sentence.

The phrase, "subject to its jurisdiction" was intended to exclude from its operation children of... subjects of foreign States born within the United States.

Until they take an oath of US citizenship, in which they renounce citizenship of a foreign State, resident aliens, even legal immigrants, are subjects of a foreign State. The children of legal residents were not to be citizens. Should the parents be naturalized, or the children reach the age of majority and then be naturalized, the Congress would be charged with the determination of the means. The change to the familiar latter day understanding of the phrase is a construct of the Roosevelt Court, starting with Bridges v. Wixon, 326 US 35 (1945). There was a thread on this topic some months ago you might wish to read.

That definition in no way limits the Constitutional jurisdiction of the United States.

No, just the opposite - the Constitution limits the CFR.

What is the difference between an American National and a United States Citizen?

Citizens are within the jurisdiction of the United States, Nationals are not.

There is no such thing as a citizen of a State, only of the US.

True.

You are a resident of a state, but it is an individual's choice to be either a citizen or a national.

(CFR)Sec. 1452. Certificates of citizenship or U.S. non-citizen national status; procedure
TITLE 8, CHAPTER 12, SUBCHAPTER III, Part II, Sec. 1452.
(b)
Application to Secretary of State for certificate of non-citizen national status; proof; oath of allegiance
A person who claims to be a national, but not a citizen, of the United States may apply to the Secretary of State for a certificate of non-citizen national status...

America and the United States are generally used interchangeably even though technically not identical. They are more like apples and oranges.

The United States is defined in the Texas statutes as a political subdivision, which is an artificial thing.

America is a geographical location, or a concrete object.

(sigh) Sometimes I wish I were more articulate so I could explain my position better!

All those illegal aliens can say Hey we are all Americans amigo.

That’s exactly what’s been happening.

When an illegal is caught with an expired visa for instance, he can be deported because he voluntarily signed an agreement (or contract) with the federal government to leave within an allotted time. Since he did not leave, he has violated the terms of the contract.

When an illegal is undocumented, there is no contract. With no evidence to the contrary, the government must assume him to be a national of our country by default and cannot deport him. So he is free to stay in this country for the rest of his life.

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.

Well said, worth repeating.

The answer to this thread is simple. That question is NOT before the Court. When a case goes up, questions on appeal are certified. In essence, one asks the Court for a writ to hear a specific question.

I have not seen the questions involved here, but the article makes it clear what both sides are arguing. Even more telling, the "no birthright" question was posited by an intervenor to the proceeding. The Court did not rule, for reasons unstated, and therefore there is no basis for appeal.

While the 14th Amendment, birth right question is interesting, I do not think it will be a part of this equation at all.

As a final thought, the article is full of very broad statements about myths, and the lack of certain foundation for the birth right law. That is plainly NOT true. While I hate the rule,it certainly has a basis in law, and the interpretation is not necessarily even stretched.

Unless I see otherwise, the issue appears to be, "Whether the Government's designation of a U.S. Citizen as an "enemy combatant" serve to limit or restrict due process rights afforded U.S. Citizens.

We will see when the briefs are filed, provided they are not subject to national security protection.

Why does it seem so hard for folks to understand that America and the United States are two totally seperate things?

Because a lot of us use words in their simple plain meaning and don't torture them into submission to support our own strange little conspiracy theories. We also tend to pay our taxes and not worry about yellow finge on the flag.

But, by all means go ahead and enlighten me on your interpretation of the terms "America" and "United States".

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