XPost: alt.fan.rush-limbaugh, alt.society.liberalism, alt.atheism
XPost: alt.fun, alt.politics.democrats.d
The Case Against Birthright Citizenship
By Howard Sutherland
https://www.theamericanconservative.com/citizen-hamdi/
On June 28 [2004], 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 O’Connor 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.
Representatives—including immigration-reform stalwart
Tom Tancredo—asserts 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 Amendment’s
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 Court’s evasion, this is no small matter.
The government’s 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 law’s
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 Sam’s
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
birth—in Korean-owned clinics with Korean staff—to 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 Korea’s
draft—and 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 Americans—children of
American citizens—and 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
Court’s 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
Clause’s 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 Howard’s 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 Clause’s drafters were careful to exclude
Indians—deep-rooted in this land—from 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.
Pennsylvania’s Edgar Cowan discussed citizenship’s
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.”
Maryland’s 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 requirement’s
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 Clause’s] 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 alien’s 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. Gray’s Wong interpretation
finds no support in the Citizenship Clause, the Senate
debate, or the Court’s 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 case’s
reasoning without examining it, exacerbating drive-by
citizenship. With Hamdi the Court has ducked the issue
again.
Fortunately, we need not await the Supreme Court’s
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, Paul’s 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 Hamdi’s 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
citizenship—and an America that gives citizenship away
to illegal alien and birth-tourist babies drains its
greatest privilege, U.S. citizenship, of value.
--- SoupGate-Win32 v1.05
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