THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Volume VI, Issue # 130, June 19, 2004
Dr. Almon Leroy Way, Jr., Editor
Government Committed to & Acting in Accord with Conservative Principles
Ensures a Nation's Strength, Progress, & Prosperity
AMERICAN LAW & U.S. CITIZENSHIP:
WHO IS AN AMERICAN CITIZEN?
By Phyllis Schlafly
FULL STORY:
In a world of inhumanity, war and terrorism, American citizenship is a very precious possession. It affords rights that residents of other
countries can only dream of.
So who is eligible to claim American citizenship? The U.S. Supreme Court may soon consider that question.
Yasser Esam Hamdi was captured as an enemy combatant during the American military operation in Afghanistan. When interviewed by
a U.S. interrogation team, Hamdi identified himself as a Saudi citizen who had been born in the United States.
Now that he has been detained, he contradicts that by claiming to be a citizen of the United States based on his birth in Baton Rouge,
Louisiana, to Saudi Arabian parents. There is no evidence that his parents intended to settle in the United States, or even that they had
a right to do so.
Hamdi was residing in Afghanistan when he was captured. His father, Esam Fouad Hamdi, joined the lawsuit from his country of Saudi
Arabia.
Section 1401(a) of Title 8 of the United States Code defines a U.S. citizen as "a person born in the United States, and subject to the
jurisdiction thereof." This law uses the same language as the Citizenship Clause of the Fourteenth Amendment to the U.S.
Constitution.
There is no evidence that Hamdi or his parents ever consented to be subject to the sovereignty of the United States, or sought to
settle in the United States or to renounce their Saudi Arabian citizenship. All evidence is that they retained allegiance to Saudi
Arabia.
Birth on U.S. territory has never been an absolute claim to citizenship. The Fourteenth Amendment does not automatically extend to
children born to alien parents at war with the United States, or to the children of diplomatic agents, or to American Indians, or to
illegal aliens.
If it did, American Indians would automatically have been American citizens since they were born on what is U.S. territory. But
Indians who belong to tribes were not citizens until given that status by Congress.
The Supreme Court held, in 1884 in Elk v. Wilkins, that "Indians born within the territorial limits of the United States,
members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a
geographical sense born in the United States, are no more `born in the United States and subject to the jurisdiction thereof,'
within the meaning of the first section of the Fourteenth Amendment, than the children of subjects of any foreign government
born within the domain of that government, or the children born within the United States, of ambassadors or other public
ministers of foreign nations."
The logic of this decision applies with equal force to visitors or aliens who remain loyal to foreign powers. The Fourteenth
Amendment did not change this.
In the 1942 case called In re: Thenault, a federal court ruled: "Of course, the mere physical fact of birth in the country
does not make these children citizens of the United States, inasmuch as they were at that time children of a duly accredited
diplomatic representative of a foreign state. This is fundamental law and within the recognized exception not only to the
Constitutional provision relative to citizenship, Amendment Article 14, Section I, but to the law of England and France and
to our own law, from the very first settlement of the Colonies."
In supporting passage of the Fourteenth Amendment, U.S. Senate Judiciary Committee Chairman Lyman Trumbull
explained that the jurisdictional language in the Citizenship Clause "means `subject to the complete jurisdiction thereof.' ...
[Are] the Navajo Indians subject to the complete jurisdiction of the United States? By no means. We make treaties with
them. ... It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government ...
that he is `subject to the jurisdiction of the United States.' ... It is only those persons who come completely within our
jurisdiction, who are subject to our laws, that we think of making citizens."
The extensive litigation concerning American Indians illustrates that consent rather than place of birth is what controls
citizenship. Indians did not receive citizenship until conferred by congressional acts in 1887, 1901 and 1924, long after
ratification of the Fourteenth Amendment.
The U.S. Constitution states that "no person except a natural born citizen" is eligible to be President. Everyone recognizes
that this provision disqualifies the Governors of California and Michigan who were born in Austria and Canada,
respectively.
On the other hand, then Michigan Governor George Romney, whose birthplace was Mexico, ran for President in 1968, and
Senator John McCain, whose birthplace was the Panama Canal Zone, ran for President in 2000. Both were "natural born
citizens" because their parents were U.S. citizens and subject to the jurisdiction of American sovereignty.
It's not the physical location of birth that defines citizenship, but whether your parents are citizens, and the express or
implied consent to jurisdiction of the sovereign. The facts and the law argue against American citizenship for Hamdi.
LINKS TO RELATED TOPICS:
U.S. Constitutional Law & Political Philosophy
Phyllis Schlafly, American author and Conservative Republican political activist, has a Master of Arts degree in Political Science
(Harvard University, 1945) and a degree in Law (Washington University, 1978). Schlafly is well known for her opposition to
feminist ideology, the women's liberation movement, and the "Equal Rights Amendment." She has written several books and
continues to lead her organization, the Eagle Forum, in campaigns promoting Conservative causes. The original version of the
foregoing article by Schlafly appears on the Internet website maintained by the Eagle
Forum.
Return to Top of Page
Go to the WEBSITE INDEX
Return to Beginning of
THE PROGRESSIVE CONSERVATIVE, USA,
Public Issues & Political Controversies
Return to Beginning of
THE PROGRESSIVE CONSERVATIVE, USA
Most Recent Articles
Return to Beginning of
THE PROGRESSIVE CONSERVATIVE, USA,
Volume VI, 2004
Return to Beginning of
THE PROGRESSIVE CONSERVATIVE, USA,
Subject Matter Highlights, Page Two
Return to Beginning of
THE PROGRESSIVE CONSERVATIVE, USA,
Subject Matter Highlights, Page One
Return to POLITICAL EDUCATION Homepage
CONTACT & ACCESS INFORMATION
This is not a commercial website. The sole purpose of the website is to share with interested persons information regarding civics,
civic and social education, political science, government, politics, law, constitutional law and history, public policy, and political
philosophy and history, as well as current and recent political developments, public issues, and political controversies.
THE PROGRESSIVE CONSERVATIVE, USA
An Online Journal of Political Commentary & Analysis
Dr. Almon Leroy Way, Jr., Editor
Conservative & Free-Market Analysis of Government, Politics & Public Policy, Covering Political, Legal, Constitutional, Economic,
Cultural, Military, International, Strategic, & Geopolitical Issues
Government, Politics, Public Policy, Legal Issues, Constitutional Law, Government & the Economy, Cultural Values, Foreign Affairs,
International Relations, Military Defense & National Security, Geopolitics, Terrorism & Homeland Security, American National Interests,
Political Systems & Processes, Political Institutions, Political Ideologies, & Political Philosophy