In the aftermath of the Civil War, the U.S. Congress passed the Civil Rights Act of 1866 granting U.S. citizenship to all persons born in the United States, as long as those persons were not “subject to a foreign power.”
Previously the U.S. Supreme Court had held in its 1857 Dred Scott v. Sandford decision that a black person could not be a citizen.
In 1868, as part of the Republican Party’s Reconstruction Amendments to define matters resolved by the Civil War, Congress passed the 14th Amendment to the U.S. Constitution.
The Amendment, then ratified by the states, included Section One, known as the Citizenship Clause, which overruled the Dred Scott decision and provided citizenship for Afro-Americans who had been slaves in the United States. Co-authors of Section One, Sen. Jacob M. Howard, R-Mich., and Sen. Lyman Trumbull, R-Ill., were labeled radical Republicans.
Howard wrote: “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.” He explained that “jurisdiction” meant “allegiance to the United States” and that children of “foreigners and aliens” were to be excluded.
Trumbull wrote that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else.” Children born to diplomats and foreign ministers serving in the United States were excluded from citizenship, but the final Amendment was vague on the status of children born in the United States to other foreign nationals. At the time, American Indians were not considered eligible for U.S. citizenship.
Now, 141 years after passage of the Citizenship Clause, questions arise regarding interpretation of the phrases “subject to the jurisdiction thereof” and “foreign powers” for children born in the United States to noncitizens. Over the years, Supreme Court decisions have touched on the question without resolving it.
In 1898, in the U.S. v. Wong Kim Ark decision, the Court determined that a man born in the United States was a U.S. citizen, even though his parents, who were Legal Permanent Residents conducting business in the United States, maintained their Chinese citizenship.
More recently, in the 1982 Plyler v. Doe decision, the Court inserted a footnote suggesting that “subject to the jurisdiction thereof” might apply to children born in the United States to illegal alien parents — a footnote counteracting the intent of the Citizenship Clause.
To date, no Supreme Court decision has clarified “subject to the jurisdiction thereof," and the Court has yet to address the question of whether children born to noncitizen parents in the United States illegally are U.S. citizens by the mere fact of their birth. Among the noncitizens giving birth to children in the United States today are foreign nationals in the country illegally and foreign exchange students.
The need for clarification of the phrase “subject to the jurisdiction thereof" gains importance with the rise in homegrown terrorists. A case in point is that of the jihadist leader Anwar al-Awlaki, born in Las Cruces, N.M., in 1971 to Yemeni exchange students.
Al-Awlaki claims dual citizenship in the United States and Yemen, even though he and his parents returned to Yemen when he was seven, and he was raised there, as his father became a prominent academic and political figure. Anwar al-Awlaki returned to the United States for college and graduate school as a foreign exchange student, despite his U.S. citizenship. He then returned to Yemen, where he is an al-Qaida senior operational officer and recruiter and a jihadist leader.
Among his recruits was Army Major Nidal Hasan, the Fort Hood shooter. President Barack Obama approved a capture-or-kill order on al-Awlaki, whose father then filed a lawsuit against the U.S. government assisted by the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR).
His father claims that his son “lived his life in America; he is an all-American boy.” This case raises the question: Are children born in the United States to parents who are foreign exchange students or illegal aliens actually subject to the “jurisdiction of the United States,” or are such children citizens of the country to which their parents claim allegiance?
Domestic terrorists, born in the United States or naturalized, say they owe neither allegiance nor loyalty to the United States.
For example, Samir Khan, a naturalized U.S. citizen born in Saudi Arabia, identifies himself as an “al-Qaida-to-the-core” blogger and declares, “I am a traitor to America, because my religion requires me to be. We pledge to wage jihad for the rest of our lives, until either we implant Islam all over the world or meet our Lord as bearers of Islam.”
The naturalization process is partly to blame, as evidenced by Faisal Shahzad, the Times Square bomber. At his sentencing, a federal judge asked if he had sworn allegiance to the United States at his naturalization ceremony the previous year. Shahzad replied, “I did swear, but I didn’t mean it.”
A thorough background investigation and waiting period would have revealed his real intent.
The nation looks to the U.S. Congress to remedy fraudulent naturalizations and the Supreme Court to clarify the jurisdictional question of automatic birthright citizenship.
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