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 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.

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Howard Sutherland is a lawyer in New York.