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