Rescuing U.S. Citizenship

[previously on this subject by Howard Sutherland : Weigh Anchor! Enforce the Citizenship Clause]

One strange case that has arisen from the "War on Terrorism" is that of Yaser Esam Hamdi, a young Saudi man captured in Afghanistan while fighting with the Taliban. He was taken to Guantanamo Bay. There it was discovered that Hamdi had been born in Louisiana to Saudi parents temporarily in the United States (his father was a chemical engineer with a Saudi company). The Hamdis had left the U.S. before young Yaser's third birthday. Until now, he had never returned. But he asserted U.S. citizenship on the basis of the 14th Amendment's Citizenship Clause.

The Justice Department appears to have accepted that argument, because Hamdi has been removed to the brig at the Norfolk Naval Station in Virginia, a courtesy not extended to non-citizens. Deeming Hamdi a U.S. citizen also means that he benefits from the full protections of the U.S. Constitution. Prosecuting this enemy combatant has become a much tougher proposition.[Hamdi v. Rumsfeld (PDF)]

Fortunately, Friends of Immigration Law Enforcement [FILE], an immigration law reform group run by Project USA's Craig Nelsen, sees the Hamdi case as an opportunity to get the question of birthright citizenship before the courts. FILE has moved to intervene in the Hamdi case, seeking that he be declared a Saudi national and removed from the U.S. (I.E. to Guantanamo.)

The conventional, and wrong, interpretation of the Citizenship Clause confers U.S. citizenship on anyone born within the territory of the United States—no matter who his parents are and no matter how they came to be here. FILE says, correctly, that that interpretation is far too broad and not at all what the 14th Amendment's authors had in mind.

Birthright citizenship is of critical importance—and not only to fighting terrorism. The current interpretation invites and gets no end of abuse. It is well known around the world that all you have to do is get a baby born in the United States to manufacture an instant U.S. citizen. Then, because of the "family reunification" emphasis in current immigration law, that "U.S. citizen" becomes the anchor in American soil that will allow the immigration of an almost unlimited stream of relatives (and then their relatives, and then…).

As a result, heavily pregnant Mexican women are smuggled across the border to give birth here. According to the General Accounting Office, in 1995 there were almost 80,000 Medicaid-funded births to illegal alien women in California alone. That is probably more than half of California's births to illegal aliens in that year. Seven years later, the number is probably much higher.

In South Korea and other Asian countries, travel agents sell package tours to pregnant women, flying them to Los Angeles so they can give birth in the United States (in clinics run by immigrants of their own nationalities, naturally).

Whether or not the alien mother and child stay after the birth, they make sure they get that all-important Social Security number and passport for the little "American," so the family can eventually move to America.

The Citizenship Clause was put in the Constitution in 1868 for a very different purpose: to ensure that freed slaves could not be denied citizenship because they had not been citizens when they were born. It says

"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 current interpretation ignores the critical phrase "subject to the jurisdiction thereof." That phrase means that citizenship requires allegiance—which is more than the accident (even if it is not accidental) of being born on U.S. soil.

Yaser Esam Hamdi's parents were Saudi. They were in the U.S. temporarily with no intention of staying and pursuing American citizenship. They were not fully "subject to the jurisdiction" of the U.S. Mr. Hamdi could not be drafted into the U.S. Armed Forces. Mr. and Mrs. Hamdi could not be guilty of treason to the U.S.–they owed no allegiance. Neither does their Saudi son, no matter where he was born.

The point of the jurisdiction language in the Citizenship Clause was precisely to make it clear the United States is not asserting full jurisdiction over everyone born within U.S. territory. The exception that mattered in 1868 was the American Indian. Indians dealt with the Federal government through treaties, and were citizens of their tribes, not the United States. (U.S. citizenship was extended to them later by statute, which only proves the point.) Nor, as one of the Citizenship Clause's authors, Senator Jacob Merritt Howard of Michigan, said in Senate debate, would the Citizenship Clause extend to persons born in the United States who are foreigners or aliens—including diplomats' children.

Nevertheless, that is exactly how our Federal government interprets it today. Periodically, some brave Congressman submits a bill to interpret the Citizenship Clause the way it is written. But the Democrats' vested interest in an endless stream of new Democrats, and the Republicans' terror of being called racist, ensure those bills go nowhere.

FILE is trying to get the issue into the arena where it can readily be resolved: the Federal courts.

If U.S. District Judge Robert Doumar has any respect for the Constitution, Yaser Esam Hamdi will be on the next plane back to Gitmo.

August 29, 2002