In the 1942 case called In re: Thenault, a federal court ruled: "Of course, the mere physical fact of birth in the country does not make these children citizens of the United States, inasmuch as they were at that time children of a duly accredited diplomatic representative of a foreign state. This is fundamental law and within the recognized exception not only to the Constitutional provision relative to citizenship, Amendment Article 14, Section I, but to the law of England and France and to our own law, from the very first settlement of the Colonies."
In supporting passage of the 14th Amendment, ratified in 1868, Senate Judiciary Committee Chairman Lyman Trumbull of Illinois explained that the jurisdictional language in the Citizenship Clause "means 'subject to the complete jurisdiction thereof.' ... (Are) the Navajo Indians subject to the complete jurisdiction of the United States? By no means. We make treaties with them. ... It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other Government ... that he is 'subject to the jurisdiction of the United States.' ... It is only those persons who come completely within our
jurisdiction, who are subject to our laws, that we think of making citizens."
The extensive litigation concerning American Indians illustrates that consent rather than place of birth is what controls citizenship. Indians did not receive citizenship until conferred by congressional acts in 1887, 1901 and 1924, long after ratification of the Fourteenth Amendment. The Constitution states that "no person except a natural born citizen" is eligible to be president. Everyone recognizes that this provision disqualifies the governors of California and Michigan, who were born in Austria and Canada, respectively.
On the other hand, then Michigan Governor George Romney, whose birthplace was Mexico, ran for president in 1968, and Senator John McCain, whose birthplace was the Panama Canal Zone, ran for president in 2000. Both were "natural born citizens" because their parents were U.S. citizens and subject to the jurisdiction of American sovereignty.
It's not the physical location of birth that defines citizenship, but whether your parents are citizens, and the express or implied consent to jurisdiction of the sovereign. The facts and the law argue against American citizenship for Hamdi.
Phyllis Schlafly is a national leader of the pro-family movement, a nationally syndicated columnist and author of Feminist Fantasies.
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