Phyllis Schlafly

In a world of inhumanity, war and terrorism, U.S. citizenship is a precious possession. It affords rights that the citizens of other countries can only dream of.

So who is eligible to claim U.S. citizenship? The Supreme Court may soon decide.

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, La., 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 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 14th Amendment.

There is no evidence that Hamdi or his parents ever consented to be subject to the sovereignty of the United States, 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 14th Amendment does not automatically extend this to children born to alien parents at war with the United States, the children of diplomatic agents, American Indians or illegal aliens.

If it did, American Indians would automatically have been U.S. citizens because 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 vs. 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 14th 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 14th Amendment did not change this.

Phyllis Schlafly

Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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