In 1866-68, as part of the Republican Party’s Reconstruction Amendments to define and clarify matters resolved by the Civil War, Congress passed the 14th Amendment to the U.S. Constitution.
Section One of the Amendment, known as the Citizenship Clause, was designed to overrule the Dred Scott decision and provide citizenship for Afro-Americans who had been slaves in the United States.
Senate leaders of Section One adoption were Senator Jacob M. Howard (R-MI) and Senator Lyman Trumbull (R-IL). Senator Howard was of the opinion that “all persons born or naturalized in the United States and subject to the jurisdiction thereof (emphasis added) are citizens of the United States and the state wherein they reside.”
Howard explained that “jurisdiction” meant “allegiance to the United States.” Senator Trumbull stated that “subject to the jurisdiction thereof” meant “not owing allegiance to anybody else, and being subject to the complete jurisdiction of the United States.”
Trumbull’s statement of a person “not owing allegiance to anyone else” as part of the legislative history may present a problem in future birthright litigation. Additionally, the Constitution has no mention of birthright citizenship.
Now, 146 years after passage of the Citizenship Clause, questions arise regarding interpretation of the phrases “subject to the jurisdiction thereof” for children born in the United States of illegal aliens and persons in the United States temporarily.
The Supreme Court decision dealing with the question was decided in 1898, in the U.S. v. Wong Kim Ark decision. The Supreme Court determined that a man born in the United States of U.S. permanent resident parents, but nationals of China and carrying on business in the United States was a citizen within the 14th Amendment definition.
In 1982, in the Plyler v. Doe decision, the Supreme Court dealt with the Equal Protection section of the 14th Amendment. Justice Brennan in his writing of the 5-4 opinion never cited the Wong Kim Ark case for any reason.
Wong Kim Ark was only cited in footnote # 10 suggesting that “subject to the jurisdiction thereof” applied to children born in the United States of illegal alien parents.
In Oforji v. Ashcroft, 354 F, 3rd 609, 620-621 (7th Cir. 2003), Judge Posner, concurring, suggested that Congress should re-think awarding citizenship to everyone here illegally whose sole motive is to have a U.S. citizen child.
This would apply to non-citizen visa holders here temporarily.
Among the non-citizens giving birth to children in the United States are foreign exchange students, tourists, or foreign nationals with a border-crossing card who cross the border for a day to have a child born in America—so-called “anchor babies.”
The need for clarification of the phrase “subject to the jurisdiction thereof” gains importance with the rise in home-grown terrorists.
A case in point is that of the jihadist leader Anwar al-Awlaki, who was born in New Mexico, in 1971 to Yemeni exchange students. al-Awlaki apparently held dual citizenship — United States and Yemen
His parents returned to Yemen when he was seven, and he was raised there. al-Awlaki returned to the United States to study at Colorado State University as a foreign exchange student.
As a foreign exchange student he was given financial benefits not given to citizen students, even though he was a U.S. citizen.
For several decades, al-Awlaki had been an Islamic lecturer, an Al-Qaida senior operational officer and recruiter, and a jihadist leader.
Among his followers in the United States are Army Major Nidal Malik Hasan, the Ft. Hood shooter and Faisal Shahzad, the Times Square bomber.
al-Awlaki was considered by the Obama administration to be a dangerous person committed to carrying out deadly attacks on Americans, but FBI Director Robert Mueller repeatedly refused to call al-Awlaki an “Islamic terrorist” but merely a “U.S.-born extremist.”
In April 2010, after President Barack Obama approved a capture-or-kill order on al-Awlaki, his Yemeni father filed a lawsuit against the U.S. government with the assistance of the American Civil Liberties Union (ACLU) and the Center for Constitutional Rights (CCR).
al-Awlaki was considered to have been involved in terrorist plots in the United States, the United Kingdom, and Canada; yet his father claims, “He lived his life in America; he is an all-American boy.”
The al-Awlaki case represents the embodiment of the question, is a child born in the United States to parents who are foreign exchange students actually subject to the “jurisdiction of the United States”?
The Times Square jihadist bomber at his sentencing was asked by the federal judge, if he had sworn allegiance to the United States at his naturalization ceremony in 2009.
The bomber replied, “I did swear, but I didn’t mean it.” How does this factor into “subject to the jurisdiction thereof “?
Birthright citizenship has not been completely resolved.
James H. Walsh was associate general counsel with the U.S. Department of Justice Immigration and Naturalization Service from 1983 to 1994. Read more reports from James Walsh — Click Here Now.
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