BIRTHRIGHT CITIZENSHIP & THE HAMDI CASE
By Dr. John C. Eastman
The principal question that the U.S. Supreme Court will consider is whether "the Constitution permits Executive officials to detain an American citizen indefinitely in military custody in the United States, hold him essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before an impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to to be an 'enemy combatant.'"
With all due respect, that is the wrong question. The real question should be: Why is Hamdi being treated as a citizen at all? He was born in Louisiana -- and has a birth certificate to prove it -- to be sure. But he was born to Saudi citizens; his father, Esam Fouad Hamdi of Mecca, Saudi Arabia, was working in Baton Rouge, Louisiana, at the time on a temporary worker visa for a brief stint as a chemical engineer with Exxon. His mother, Nadiah Hussen Hamdi, was born Nadiah Hussen Fattah in Taif, Saudi Arabia. The entire family returned to Saudi Arabia while Yasser was still a toddler and Yasser never set foot on U.S. soil again until after his capture in Afghanistan in a battle with U.S. forces near Konduz. Hamdi was armed with a Kalishnikov AK-47 military assault rifle at the time of his capture.
Section 1 of the Fourteenth Article in Amendment of the U.S. Constitution provides: "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 clause was clearly and expressly designed to repudiate the Supreme Court's infamous decision in Dred Scott v. Sanford (1857), which erroneously treated African-Americans as non-citizens, even non-persons, writing them out not only of the Constitution but of the "all men are created equal" language of the Declaration of Independence as well.
Today, the common perception of the clause is that it mandates citizenship for anyone born on U.S. soil. Such a reading dates to an erroneous Supreme Court decision in the 1898 case of United States v. Won Kim Ark, decided by the same Court, by nearly the same line-up, that two years earlier had decided the infamous case of Plessy v. Ferguson. It is a wrong reading.
For one thing, the Supreme Court's interpretation of the Fourteenth Amendment's Citizenship Clause in United States v. Won Kim Ark renders the "subject to the jurisdiction" provision of the clause completely redundant. For another, it is completely at odds with the provision of the 1866 Civil Rights Act the Fourteenth Amendment was designed to constitutionalize. That clause provided: "All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States." Debate on the floor of the U.S. Senate about the Fourteenth Amendment confirmed this view. Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, stated that "subject to the jurisdiction " of the United States meant subject to its "complete" jurisdiction; "[n}ot owing allegiance to anybody else." Indeed, the first two cases in which the Supreme Court addressed the issue, first in dicta in the The Slaughter-House Cases (1873), and then as a holding in Elk v. Wilkins (1884), recognized the Trumbull view of the clause.
The majority opinion in The Slaughterhouse Cases correctly noted that "[t]he phrase, 'subject to the jurisdiction,' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States." Justice Steven Field, joined by Chief Justice Case and Justices Swayne and Bradley in dissent from the principal holding of the case, likewise acknowledged that the Citizenship Clause was designed to ensure that all persons born in the United States were, as a result, citizens of the United States and of the state in which they resided, provided they were not, at the time, subjects of any foreign power.
What was dicta in The Slaughter-House Cases became holding in Elk v. Winkins, where the Supreme Court held that the claimant was not a U.S. citizen, despite having been born on U.S. soil, because the provision, "subject to the jurisdiction" of the United States, required that he be "not merely subject in some respect or degree to the United States. but completely subject to their political jurisdiction, and owing them direct and immediate allegiance."
The children of temporary workers (much less illegal immigrant workers) simply do not qualify as "completely subject" to U.S. jurisdiction, for they are also subject to the jurisdiction of (indeed, owe primary allegiance to) their home country. Hamdi himself, as a Saudi, remained subject to the jurisdiction of Saudi Arabia and later, apparently, of the Taliban in Afghanistan. Hence, under the original view of the Fourteenth Amendment (rather than the erroneous view adopted by the Plessy-era Court), Hamdi has no constitutional claim to U.S. citizenship.
To be sure, Congress is free (under its power to establish a uniform rule on naturalization)) to provide citizenship more broadly than the Fourteenth Amendment requires, and I do not mean to suggest that Hamdi is not a citizen under existing statutes. But, for the past century, Congress has believed it was obligated to afford citizenship to people like Hamdi. Whatever the Supreme Court does with the Hamdi case, therefore, it should at least make clear that Congress need not extend citizenship to terrorists like Hamdi merely because they happen to be born on U.S. soil.
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Dr. John C. Eastman is Professor of Law at Chapman University School of Law in Orange, California, and Director of the Claremont Institute's Center for Constitutional Jurisprudence. The foregoing article by Professor Eastman was originally published in The Proposition, March, 2004.
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