Skip to comments.Citizen Hamdi The case against birthright citizenship
Posted on 09/28/2004 1:32:18 PM PDT by FatLoser
September 27, 2004 issue
By Howard Sutherland
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.
United States Constitution, Amendment XIV, Section 1, clause 1
On June 28, the Supreme Court decided the case of Hamdi v. Rumsfeld, holding that an American citizen confined in the United States as an enemy combatant has the right to contest his detention before a neutral decision-maker. Yaser Esam Hamdi, a Saudi, was captured by U.S. forces in Afghanistan and taken to Guantanamo. Hamdi claimed American citizenship and the right to be transferred stateside. Federal authorities moved him to naval brigs in Norfolk and Charleston, where he sits.
The Supreme Court ignored the threshold question that was before them: is Yaser Esam Hamdi an American? Writing for the majority, Justice OConnor blandly said that Hamdi was [b]orn an American citizen in Louisiana. In dissent, Justice Scalia came closer to the truth, calling Hamdi a presumed American citizen. Hamdi was born in Louisiana, to Saudi parents briefly here because his father was working on a temporary visa for Saudi Arabia Basic Industries. While still an infant, Hamdi went home to Saudi Arabia and had nothing to do with the United States until he bore arms against U.S. forces in Afghanistan in 2001. An amicus curiae brief in his case, filed by the Center for American Unity, Friends of Immigration Law Enforcement, the National Center on Citizenship, and eight U.S. Representativesincluding immigration-reform stalwart Tom Tancredoasserts that Hamdi is not a U.S. citizen, presumed or otherwise. Maryland attorney Barnaby Zall argues persuasively that to deem Hamdi an American is to ignore the plain meaning of the 14th Amendments Citizenship Clause and the express intent of those who wrote and ratified it. The federal government misinterprets the Citizenship Clause as though the phrase and subject to the jurisdiction thereof (the jurisdiction requirement) were not there.
Despite the Courts evasion, this is no small matter. The governments selective misreading grants birthright citizenship to anyone (except diplomats children, highlighting federal inconsistency) born on American soil, no matter who his parents are. Birthright citizenship lures illegal aliens, who know a U.S.-born child is, thanks to American immigration laws family-reunification bias, an anchor baby who will be able to sponsor his relatives for residence and citizenship. They also know that anchor babies mothers are not deported. In 1993, the Los Angeles County Board of Supervisors reported that two-thirds of births in L.A. County hospitals were to illegal aliens, mostly Mexicans. Conservative estimates of illegal-alien births here, assuming an illegal alien population of between 8.7 and 11 million, run from 287,000 to 363,000 per year.
Not only Latin Americans have figured out Uncle Sams birthright bonanza. South Koreans have created a birth tourism industry. As the Los Angeles Times reported in 2002, Korean tour operators fly Korean mothers into Los Angeles and other American cities, there to give birthin Korean-owned clinics with Korean staffto an American. Websites like www.birthinusa.com advertise from birth to citizenship. Korean chaperones help get the babies California birth certificates and U.S. passports to take home. Junior can then dodge Koreas draftand sponsor his family in America if they feel like moving. Pledging allegiance to the Stars and Stripes has nothing to do with it.
Federal laxity creates what Zall calls drive-by citizenship, debasing American citizenship by giving it to legions of aliens like Hamdi, who bear no allegiance to this country or connection other than the accident of birth here. Among other evils, this dilutes the citizenship of unquestionable Americanschildren of American citizensand encourages dual citizenship with attendant divided loyalties. Is this what those who ratified the Citizenship Clause intended?
The Citizenship Clause was drafted to prevent freed slaves from being denied citizenship because they were not citizens at birth. It overturned the Supreme Courts Dred Scott decision, which held that even U.S.-born freedmen were not automatically citizens. Nevertheless, the jurisdiction requirement was written into the clause to ensure that birthright citizenship would not become the law of land and that allegiance would remain a vital element of citizenship.
In the 1866 Senate ratification debate, the Citizenship Clauses proponent, Jacob Howard of Michigan, said it was
simply declaratory of what I regard as the law of the land already, that every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural and national law, a citizen of the United States. 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 accredited to the Government of the United States, but will include every other class of persons.
James Doolittle of Wisconsin queried Howards language, but not because he favored birthright citizenship. Instead he wanted it clear that Indians were excluded because they owed allegiance to their tribes. The Citizenship Clauses drafters were careful to exclude Indiansdeep-rooted in this landfrom U.S. citizenship because they were not fully subject to the jurisdiction of the United States. It is inconceivable that they would countenance citizenship for Yaser Esam Hamdi just because he was born in Baton Rouge.
Pennsylvanias Edgar Cowan discussed citizenships limits. If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he has a right to the protection of the laws, but he is not a citizen in the ordinary acceptation of the word. Lyman Trumbull of Illinois, chairman of the Judiciary Committee and a key drafter of the 14th Amendment, explained the jurisdiction requirement. The provision is, that all persons born in the United States, and subject to the jurisdiction thereof, are citizens. That means subject to the complete jurisdiction thereof. What do we mean by subject to the jurisdiction of the United States? Not owing allegiance to anybody else. That is what it means.
Marylands Reverdy Johnson, the only Democrat in this Reconstruction-era debate, gave Trumbull bipartisan support. Now all this amendment provides is, that all persons born in the United States and not subject to any foreign Power shall be considered as citizens of the United States. Johnson emphasized that the jurisdiction requirement meant the same as the phrase not subject to any foreign Power in the Civil Rights Act of 1866, passed by the same Congress that ratified the 14th Amendment. The import of the jurisdiction requirement, affirmed by its drafters expressed intent, is that after dealing with the special case of freedmen the Citizenship Clause confers birthright citizenship only on citizens children.
The Supreme Court honored the Citizenship Clause for 30 years, holding that the jurisdiction requirements distinction between those who do and do not owe complete allegiance to the United States is a critical test of citizenship. In The Slaughter House Cases (1873), the Court held that the jurisdiction requirement was intended to exclude from [the Citizenship Clauses] operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States. In Elk v. Wilkins (1884), the Court denied citizenship to John Elk, an Indian, because he did not owe complete allegiance to the United States. The jurisdiction requirement put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States. Justice Gray continued, The evident meaning of [the jurisdiction requirement] 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. It is impossible to square this interpretation with conferring citizenship on Hamdi or on any illegal aliens child. And it is very hard to reconcile it with granting birthright citizenship to the children of legally resident aliens, who retain allegiance to their ancestral homelands.
Unfortunately, the Court undermined the jurisdiction requirement in United States v. Wong Kim Ark (1898) when Justice Gray, who had it right in Elk, concocted the theory that an alien in this country somehow gives his undivided allegiance to the United States and renounces all allegiance to his homeland for the duration of his residence. Grays Wong interpretation finds no support in the Citizenship Clause, the Senate debate, or the Courts own precedents. It was a political expedient to avoid acknowledging that California-born children of Chinese parents legally in the United States, of whom Wong was one, were not automatically American citizens. The Court instead invented a right to citizenship for U.S.-born children of legally resident aliens. Not for the last time, the Supreme Court refused to apply the Constitution as written. Since Wong, the Court has accepted the cases reasoning without examining it, exacerbating drive-by citizenship. With Hamdi the Court has ducked the issue again.
Fortunately, we need not await the Supreme Courts pleasure to enforce the whole Citizenship Clause and end drive-by citizenship. Section 5 of the 14th Amendment gives enforcement power to the Congress. Three bills exercising this authority are pending in the House. The best is H.J. Res. 42, sponsored by Rep. Ron Paul of Texas, to amend the Constitution to deny citizenship to individuals born in the United States to parents who are neither U.S. citizens nor persons who owe permanent allegiance to America. Although an amendment is not necessary, Pauls resolution is faithful to the Citizenship Clause.
Legislation enforcing the Citizenship Clause must also restore the traditional American rejection of dual citizenship. It should follow these principles:
Children of U.S. citizens are citizens, wherever born.
Children of an American and a foreign parent are treated as citizens until their 18th birthday. Then they must choose one citizenship; no dual nationality.
U.S.-born children of legally resident aliens are not citizens at birth. If their parents naturalize while they are minor dependents they may naturalize with them (assuming no criminal record). Otherwise they pursue naturalization, if at all, as do other immigrants.
U.S.-born children of illegal aliens are not citizens, period.
Mass immigration is transforming America, and Americans have very little say in it. We must regain control over who shares the privileges and duties of American citizenship. Yaser Esam Hamdis only chosen involvement with this nation has been fighting with the Taliban against our troops. An America that accepts him as a fellow-citizen has no respect for its own citizenshipand an America that gives citizenship away to illegal alien and birth-tourist babies drains its greatest privilege, U.S. citizenship, of value. _________________________________________________
Howard Sutherland is a lawyer in New York.
September 27, 2004 issue Copyright © 2004 The American Conservative
Ironic that Arnold Schwarzenegger isn't eligible to run for president but Yaser Hamdi is!
This author makes the point I have made in several threads over the last couple of years.
If you haven't already joined the anti-CFR effort, please click here.
I just got tired of people parroting the line that the 14th amendmendment automatically makes everyone born in the US, US citizens. These same people had never actually read the text, and didn't have a clue about the and subject to the jurisdiction thereof phrase in its text.
Imagine the implications if the children of diplomats were automatically given US citizenship if they happened to born in the US. The US has diplomatic relations with many countries that are potential adversaries. I can imagine that during the Cold War the Soviet Union and its allies would have rotated as many young "diplomats" of child bearing age into the US just so they could create a large number of children loyal to the Soviet Union but able to travel throughout the West on US passports.
5 to 6 members of the Supreme Court are unable to read either the plain meaning or original intent of the Constitution and Ammendments.
Do you know of any judges in New York who can?
Does this also apply to Israelis?
I don't know.
so why is it Hamdi gets to go back to Saudi and John Walker Lind gets 20 years? Either they had nothing on Hamdi and
kept him in jail for 2 years, or the Saudis get favorable
treatment? I'm confused.
I believe John Walker Lindh was caught by US forces, so the US had CLEAR evidence that he had taken arms against the USA. He should be glad he only got twenty years!
Since Hamdi was captured by the Northern Alliance, the evidence against him may not be as CLEAR, and may not hold up in a nonmilitary court. So, rather than take a chance to have Hamdi pave a way for more "enemy combatants" to go to court, send him back to the land of his allegiance and revoke his newly found US citizenship.
Basically, the Supreme Court mucked this one up, and I tire of those liberal lawyers getting all bent out of shape that it was stupid for Ashcroft and company to fight this case. The end result makes it confusing. Basically, the Supreme Court has rewarded a person who has allegiance to the US, and gets the best of all worlds by proclaiming a US birthright he never legally held.
One missing word (like a missing clause) can change the meaning of anything!
First, if Hamdi were released based only because as a US citizen at a nonmilitary court of law he could easily prove that he was not physically present at any attack against the US, then the precedence of the case would lead to other "enemy combatants" declaring an "unjust" imprisonment.
Second, as a US citizen, Hamdi's crime was not only an act of treason, but if he earned any wages as a US citizen since the time of his birth, he would be subject to the US tax laws. I gather he has never paid the IRS a dime, and that was held against him when his lawyer negotiated with the US government.
Therefore, it would be in the US government's best interest to have Hamdi revoke his claims at US citizenship and return him to the homeland where he has claimed his jurisdiction. Even if the Saudia Arabia government wouldn't monitor him as per the agreement, the US could bar him from ever returning to the United States by putting him on the "no fly" list.
Granted, I believe it would have been better if the US Supreme Court acknowledged the Citizenship Clause, but given that the Supreme Court has complicated matters, I think I'm coming to understand why Hamdi is not being treated like a typical US citizen.
I believe that since the Supreme Court erred on this decision, it prompts congress to enact laws that are more restrictive on citizenship than the 14th amendment desired. I indeed worry about this decision because it impacts someone like myself who is married to a foreign citizen and bears children in the USA.
Liberals pride themselves for changing law through court decisions, but in a time when we are at war, a bad decision like this only hurts those who truly have a legal right to be USA citizens.
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