When is a Citizen Not a Citizen?

Citizenship Jeopardy

By Cindy Simpson

Trivia question:  What do Anwar al-Awlaki, Yaser Esam Hamdi, and newborn twin daughters of Mexican drug lord Joaquin Guzman have in common?  The correct answer:
“What is ‘presumed’ US citizenship.”

The adjective “presumed” was used by Justice Scalia to describe Hamdi’s US citizenship in the famous 2004 case of Hamdi v. Rumsfeld.  Hamdi was born in Louisiana in 1980 to Saudi parents, and in 2001 he was captured by US forces in Afghanistan and held as an enemy combatant.  Hamdi’s father filed the petition from Saudi Arabia, arguing that his son was a US citizen and entitled to due process.

Noted constitutional law expert Dr. John Eastman in his editorial, “Wrong Question in Hamdi,” argued that the question before the Court should have been: “Why is Hamdi being treated as a citizen at all?”

The Center for American Unity (“CAU”) and the Eagle Forum submitted amicus briefs in Hamdi that described the reasons they considered Hamdi’s claim to “birthright citizenship” (the practice of granting US citizenship to every baby born on US soil, regardless of the citizenship, domicile, or legal status of its parents) more than presumptuous.
Tom Tancredo, one of the signers of the CAU brief, is asking the same question of al-Awlaki:  Was he “ever really an American citizen?”

As both briefs in Hamdi explained at length, those who insist birth on US soil mandates automatic citizenship base their views on this provision in the 14th Amendment: “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 CAU brief noted:

The Citizenship Clause of the Fourteenth Amendment was added during Senate debate [wherein] the authors discussed in great detail their purpose and intentions in adding the requirement that a person be born, not just in the United States, but “subject to the jurisdiction thereof.” Sen. Howard, sponsor and author of the Citizenship Clause, when questioned about the meaning of “jurisdiction,” responded that the phrase was intended to be read as meaning “not owing allegiance to anybody else.”

Sen. Trumbull, Chairman of the Judiciary Committee, described persons who “are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.” Chairman Trumbull noted that even “partial allegiance if you please, to some other government” is sufficient to disqualify a person under the jurisdiction requirement.

Although Justice Scalia did not elaborate on his usage of “presumed” in the opening of his dissenting opinion in Hamdi, the government’s
Respondent brief and both amicus briefs referenced above used the same terminology.  It could be argued that the entire case rested on the questionable premise of Hamdi’s US citizenship.

The Court appeared to follow just such a two-step analysis in the famous 1875 women’s suffrage case of Minor v Happersett.  Justice Waite, writing the majority opinion, first addressed the claim of Virginia Minor’s citizenship, and then proceeded to discuss whether such citizenship entitled her to the right to vote.
In answer to the first issue, (and thus making this part of the opinion a direct holding and not dicta), Justice Waite wrote:
“At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners.”

It is interesting to note that the judicial precedent established in Minor is heavily relied upon by so-called “birthers” who doubt the Article 2 “natural born” presidential eligibility of Obama, born a dual citizen in the US, the son of a non-US citizen father who was here in the country legally but temporarily on a student visa with the stated intention to return to his native Kenya to work in its government.

Popular opinion, however, would contend that all four of the “presumed” citizens in my original question–Awlaki, Hamdi, and Guzman’s twin daughters, because of their made-in-the-USA birth certificates, are “natural born citizens.” If their births were also announced in the local newspaper, presumably they could all run for President of the United States.

In 2005, the year after the Hamdi decision, the House Subcommittee on Immigration convened the hearing “Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty.” Dr. Eastman, an expert witness at the hearing, noted:

“With the absurdity of Hamdi’s claim of citizenship so recently and vividly before us, it is time for the courts, and for the political branches as well, to revisit Justice Gray’s erroneous interpretation of that language [i.e., in Wong Kim Ark], restoring to the constitutional mandate what its drafters actually intended, that only a complete jurisdiction, of the kind that brings with it a total and exclusive allegiance, is sufficient to qualify for the grant of citizenship to which the people of the United States actually consented.”

I wrote more about that Congressional hearing here, noting the fact that all present appeared to agree (some reluctantly) that the Constitution did not mandate the present birthright practice that creates the additional dilemma of dual citizenship. The hearing generated little media attention, however.

In the meantime, the State Department, rarely enforcing its policies discouraging dual citizenship although continuing to require rejection of past citizenships in the Oath of Naturalization, has adopted a sort of “don’t ask, don’t tell” policy, described by
Frances Stead Sellers in her thoughtful essays:  “When Conflict Focuses on Citizenship” and “A Citizen on Paper Has No Weight.”

One can’t help but wonder if one of the secrets in the secret memo that the Obama administration has relied upon in its justification for taking out al-Awlaki is the pivotal question:  “Was al-Awlaki really a US citizen?”
A public discussion of the citizenship controversy, even more than adding heat to the “roiling boil” of the politically incorrect topic of immigration reform, may also bring to light the fact that the “birthers” contentions actually have substantial merit.  A serious examination of Obama’s eligibility, when combined with his falling popularity, would likely place his re-election prospects in further jeopardy.

Seen by some as a calculated move to re-ignite his failing campaign, last month Obama ordered the fatal drone attack on al-Awlaki.  Just last December, Yale Professor Peter Schuck, in his article, “Citizen Terrorist,” presciently wrote:  “In the case of a known terrorist like al-Awlaki, his citizenship status may (depending on how the courts rule on the issue) affect whether the government can kill him without legal process.”  The Obama administration obviously did not wait for a ruling.
[Note by A.R. Nash: The interpretation of the Constitution is not left solely to the Supreme Court, but is required of both Houses of Congress and the President in carrying out their duties.  If Congress passes a bill that the President finds unconstitutional, he is obligated by his oath to veto it without consulting the other branches of government.  The federal departments, such as State, and Homeland Security are also obligated and entitled to pass judgement on constitutional issues in connection with their policies, and reject or embrace choices based on their understanding of the Constitution.]

American Thinker’s Ron DeSantis writes:
If American citizenship creates a zone of protection around jihadists (as well as other malcontents) who take up arms against the United States, then America’s enemies will have an incentive to recruit individuals who can claim American citizenship but who have no actual loyalty to the country.  This will provide al-Qaeda (and other enemies of the U.S.) with an unwarranted tactical advantage, -an advantage not in any way mandated by the Constitution.

Stanley Renshon, author of The 50% American, has estimated that over 40 million Americans are dual citizens.  The ongoing practice of granting birthright citizenship to the children of non-US citizens continues to expand that figure.

As Ms. Sellers wrote, “War is all about taking sides – unless, of course, you can’t because you belong on both sides.”

The killing of al-Awlaki should be a serious wake-up call.  The continued refusal of our country’s leaders to examine the implications of dual citizenship and birthright citizenship on both the sovereignty and security of our nation places us all in jeopardy.

[There’s one problem with that call to action, and that is that our “country’s leaders” are not leaders.  They do not lead, they obfuscate, obstruct, ignore, and oppose any action that will cost them votes.]

Page Printed from: http://www.americanthinker.com/articles/../2011/10/citizenship_jeopardy.html   at October 21, 2011

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About arnash
“When you find yourself on the side of the majority, it’s time to pause and reflect.” - Mark Twain - Politicians and diapers - change 'em often, for the same reason. "Government is like a baby. An alimentary canal with a big appetite at one end and no sense of responsibility at the other." Ronald Reagan "Liberals claim to want to give a hearing to other views, but then are shocked and offended to discover that there are other views." William F. Buckley, Jr. “The trouble with the world is that the stupid are cocksure and the intelligent are full of doubt.” - Bertrand Russell The people are the masters of both Congress and the courts, not to overthrow the Constitution, but to overthrow the men who pervert it. Abraham Lincoln “Good people sleep peaceably in their beds at night only because rough men stand ready to do violence on their behalf.” - George Orwell “Satan will use a lake of truth to hide a pint of poison”.

One Response to When is a Citizen Not a Citizen?

  1. starbeau says:

    There is a Paul Harvey, “The rest of the story”, story that was not mentioned in the article by Cindy Simpson.

    On the same day that Hamdi was captured on the battlefield in Afghanistan there was another prisoner taken on the same battlefield by the name of John Walker Lindh. During interrogations, it was determined that Lindh was a citizen of the United States.

    The paths taken by the Department of Justice in subsequent court cases involving Lindh and Hamdi is interesting and revealing.

    Lindh was immediately returned to the United States since he was determined to be a citizen (actually, as defined in Minor v. Happersett, Lind is a natural born citizen), and was charged with multiple counts at least one of which, would result in his execution for taking up arms against the United States.

    The charges against Lindh were plea bargained down to his acceptance of 20 years in Federal prison without parole. Lindh is now serving that sentence.

    Hamdi languished in prison in Afghanistan until his father remembered his son was born in Baton Rouge, LA when his father was on a temporary work permit from Saudi Arabia and is presumed to be a citizen of the United States. The Certificate of Live Birth for Hamdi identifies that both his parents were citizens of Saudi Arabia. Shortly after being born, the infant Hamdi returned to Saudi Arabia with his parents and never returned to the United States before being captured in Afghanistan.

    Using the fact that citizenship is now being conveyed to children of alien parents born on United States soil, Hamdi, as a United States citizen sued Rumsfeld under the due process clause in the constitution. Hamdi was brought to the United States for trial.

    This was a unique time in our history, when, if the DOJ had strictly adhered to the words in the 14th Amendment and challenged the decision in Wong Kim Arc that Wong was a citizen, the WKA decision could have been re-visited and perhaps overturned or at least held to the narrow decision to which it should be held. Wong’s parents returned to China after having been legally domiciled for ~18 years in the United States.

    Instead, they plea bargained that if Hamdi would renounce his United States Citizenship, agree to some travel restrictions and a few other US demands, he would be transported to Saudi Arabia and released. Hamdi accepted.

    I agree with Mr. Nash. Children born in El Paso, to citizens of Mexico, are natural born citizens of Mexico. A child born in Atlanta to citizens of South Korea, are natural born citizens of South Korea. Hamdi, born in the United States to parents who were citizens of Saudi Arabia was born a natural born citizen of Saudi Arabia. None of these births fall under the jurisdiction of the United States and none should be presumed to be “citizens of the United States”.

    We have two cases with identical circumstances of capture in Afghanistan and two different court decisions:
    Lindh is a citizen and was treated to 20 years in prison without parole.
    Hamdi was freed.

    There is however a citizenship difference between the two and it is not a trivial difference:
    Lindh was born on US soil to citizen parents and is a natural born citizen as defined by Minor v. Happersett, and was born eligible to serve as President of the United States and Commander in Chief of our military when he lives the last 14 years in the US and is 35 years old.
    Hamdi was born on US soil to alien parents and left the US as an infant. If Hamdi returns to the US at age 21, and lives continuously here for 14 years, is he eligible to serve as President and Commander in Chief when he reaches 35 years of age?

    Of course not because Hamdi is missing the requirement in our constitution in Article II, Section I, Clause 5 as defined by Minor v. Happersett to be a natural born citizen which requires birth on US soil to parents who are citizens at his date of birth.

    No court, not even the Supreme Court, Congress, or popular election can make Hamdi eligible to serve as President and Commander in Chief by:

    Ignoring by ignorance or a blind eye the NBC requirement in Article II of the constitution
    Attempting to expand the separate 14th Amendment and Article II requirements into a NBC
    Believing that all persons born in the United States are natural born citizens
    Believing that a popular vote of the citizens trumps the constitution

    There have been many recent unsuccessful attempts to amend the constitution to change the requirements to be eligible to serve as President. All have failed. Only an amendment of the constitution will change the requirement.

    The answer to Cindy Simpson’s question is that a citizen is not a citizen when his citizenship is presumed by not understanding the simple word jurisdiction in the words between the comas in the 14th Amendment that state, “and subject to the jurisdiction thereof”. Hamdi was never a citizen of the United States and should not have been awarded rights belonging to citizens of the United States.

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