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At 4:05 p.m. on Sept. 26, 1980, Nadiah Hussen Hamdi, a citizen of Saudi Arabia, gave birth to a son, Yaser Esam Hamdi, at the Women's Hospital in Baton Rouge, La. Her husband, also a Saudi citizen, was in Baton Rouge on a temporary visa working as a chemical engineer for an American oil company. While the boy was still a toddler, the Hamdi family returned to Saudi Arabia, and for the next 20 years, Yaser Esam Hamdi would not set foot again on American soil.
Hamdi's path after coming of age would instead take him to Afghanistan, to take up with the Taliban (and perhaps the al Qaeda terrorist organization it harbored) in its war against the forces of the Northern Alliance and, ultimately, against the armed forces of the United States. In late 2001, Hamdi was captured during a battle in Afghanistan, determined to be an enemy combatant and transferred to the U.S. detention facility in Guantanamo Bay, Cuba.
When U.S. officials learned that Hamdi was born in Louisiana, they transferred him to the Naval Brig in Norfolk, Va., treating him as a U.S. citizen. Under the generally accepted interpretation of the 14th Amendment's citizenship clause, mere birth on U.S. soil automatically confers citizenship. The Constitution, however, does not mandate such a result, although the original meaning of the 14th Amendment has admittedly been lost to the modern eye. The amendment guarantees citizenship to anyone "born or naturalized in the United States and subject to the jurisdiction thereof," and for a century we have assumed, thanks to an erroneous Supreme Court decision in the 1898 case of United States vs. Wong Kim Ark, that birth on U.S. soil was sufficient for citizenship.
Everyone present on U.S. soil is subject to the territorial jurisdiction of the United States -- even visitors must obey our traffic laws, for example -- so the second half of the citizenship clause has been viewed as largely redundant. But that was not the original understanding, under which the clause referred not to mere territorial jurisdiction but to political jurisdiction, the I-pledge-allegiance-and-can-be-prosecuted-for-treason type of jurisdiction. The author of the provision, Sen. Jacob Merritt Howard of Michigan, maintained that the clause "will not, of course, include foreigners." Sen. Reverdy Johnson of Maryland clarified during floor debate that "all this amendment provides is, that all persons born in the United States and not subject to some foreign power ... shall be considered as citizens of the United States."
Thirty years after the 14th Amendment was ratified, the Supreme Court (in the Wong Kim Ark case) expanded the constitutional mandate slightly, holding that the children of legal, permanent residents were automatically citizens, but the court has never held that the clause also confers automatic citizenship on the children of temporary visitors, much less on the children of illegal visitors. We have simply backed into that understanding, without consideration of the actual meaning of the citizenship clause or concern about the consequences to other constitutional text and principles.
One such principle is the idea of government by consent. Birthright citizenship permits unilateral demand of citizenship, without the consent of the political community in which membership is claimed. It is thus incompatible with a system of government based upon consent of the governed and, when used by those who enter this country illegally, the rule of law as well.
The notion also intrudes on powers bestowed by the Constitution on Congress. The Constitution, properly understood, has mandated a certain floor of guaranteed citizenship, but the decision whether and how far to offer citizenship above that floor is a policy judgment left to Congress under its plenary authority over naturalization. There are many competing factors that weigh on such a policy decision, not the least of which is the ability of newcomers to assimilate the principles of equality, inalienable rights and government by consent on which our Constitution rests, and how quickly we can absorb and assimilate immigrants from nations who do not share those principles.
Indeed, the inducement to illegal immigration provided by the current "birthright citizenship" view threatens to destroy the very possibility of principled assimilation -- the "melting pot" that has made the United States the strongest and most culturally diverse nation on the face of the earth. The lessons learned by the "unilateral citizen" children of illegal immigrants are not the principles of the Declaration of Independence and the Constitution, but rather those of a culturally separate underclass whose illegal residence among us all but assures a deep suspicion, rather than embrace, of our governing institutions and principles.
Moreover, the lesson learned by legal immigrants who patiently wait for their turn at a new life in America is a lack of respect for the rule of law that will ultimately threaten our entire system, unless we get serious about removing the inducements to illegal immigration, including birthright citizenship. Hamdi, though an enemy combatant, will have benefited the accidental land of his birth if he provides the impetus for revisiting the misbegotten notion of birthright citizenship.
John C. Eastman is a professor of law at Chapman University School of Law in Orange and director of the Claremont Institute's Center for Constitutional Jurisprudence.
For a more comprehensive treatment of this subject, see Dr. Eastman's congressional testimony, available here (click "document delivery" icon in upper left corner for article download).
