January 25, 2012
Citizenship: Easy Come, Easy Go?By Cindy Simpson
Rather than engage in the politically incorrect practice of "profiling," our government, under the guise of national security, has chosen to subject everyone who holds an airline ticket, from small children to grannies, to uncomfortable and unreasonable searches by the TSA.
Likewise, rather than restrict dual citizenship or reform the controversial practice of granting U.S. citizenship to every baby born on our soil, our government leaders have chosen instead to pass legislation that endangers the rights of citizenship of all of us.
"Being an American is not a matter of blood or birth," Obama explained in a 2010 speech on immigration reform. "It's a matter of faith. It's a matter of fidelity to the shared values that we all hold so dear."
However, if these shared values of citizenship include the sacred constitutional right to due process, that fidelity appears to have been broken by Obama himself, when, on December 31, he signed into law the NDAA with its provision allowing the indefinite detention of U.S. citizens without a warrant or hearing.
Although Obama signed the "Martial Law Bill" with "serious reservations" and assurances that he does not intend to detain American citizens suspected of terrorism without trial, Professor Jonathan Turley explained: Obama did "not deny that he has such authority."
On the heels of that alarming legislation is another dangerous bill introduced in the House and concurrently in the Senate that would essentially strip the citizenship from anyone who engages in or supports "hostilities" against the U.S.: the "Enemy Expatriation Act."
Constitutional experts Herb Titus and William Olson thoroughly examined the bill under existing law and Supreme Court precedent, and both warn that expatriation is a serious criminal punishment that essentially sends "American citizens into exile."
Rep. Charles Dent argues that his proposed legislation is needed to amend current expatriation law to encompass the "modern threat of global terrorism." As Ron DeSantis noted, our enemies could "have an incentive to recruit individuals who can claim American citizenship but who have no actual loyalty to the country" since U.S. citizenship and the right of due process could "create a zone of protection around jihadists (as well as other malcontents) who take up arms against the United States."
The problem, though, is that any measure that attempts to limit the benefits of citizenship to such enemies will likely undermine the protections guaranteed to all citizens. As Turley pointed out, the "disgraceful argument" that "we are not really losing any rights because most citizens are unlikely to be subject to these powers" is negated by the fact that "something is not a right if it is discretionary with your government to allow or to take away."
Yaser Hamdi and Anwar al-Awlaki are real-life, recent examples of individuals this legislation is meant to target. Both men were "presumed" citizens, for the sole reason of their birth in the U.S., even though to non-citizen parents temporarily resident here. The court in Hamdi v. Rumsfeld ruled that U.S. citizens, even if they are considered "enemy combatants," are entitled to habeas corpus. However, a drone aimed at Awlaki in Yemen eliminated forever his chance at a day in court, because, as the attorneys who authored the "secret memo" noted, Awlaki's U.S. citizenship protected him, unless he couldn't be seized alive.
At first glance, for terrorists like Hamdi and Awlaki, the premise of the NDAA provisions or the expatriation act may not seem like a bad idea. But the risk to the rest of us lies in the application and definition of the legislation's nebulous terms: "belligerent acts," "harboring," and "hostilities."
Instead of focusing on how to strip citizenship or its rights in these (fortunately) rare occasions, perhaps greater consideration should be given to the awarding of citizenship in the first place.
The Supreme Court defined citizenship in 1875 in the famous women's suffrage case of Minor v. Happersett as membership in a political community, to which the citizen owes allegiance, and from which the citizen is owed protection. The Court further asserted that new citizens may be born or created by naturalization, and "that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners."
The automatic granting of citizenship at birth to non-citizen parents under the controversial "birthright" citizenship practice, no matter their status (legal or illegal, temporary or permanent), is a contentious issue that has been hotly debated for a century, heating up to a "roiling boil" as the associated economic costs of unchecked immigration have become too enormous to ignore.
The basis of birthright citizenship is found in the 1898 decision of Wong Kim Ark. The divided court, in a 55-page opinion, determined that Ark, born in the U.S. to non-U.S. citizen Chinese parents permanently and legally domiciled in the U.S., was a citizen.
In its actual historical context, however, Ark's situation was governed by a treaty in effect between the U.S. and China -- a treaty that originally recognized the transfer of allegiance of Chinese making their permanent homes in America, but, as later amended, also prevented Ark's parents from ever naturalizing as U.S. citizens. In fact, as Attorney Leo Donofrio explains, unlike other native-born children of alien parents of other nationalities, Ark was not born with the dual allegiance that many experts contend the amendment's "subject to the jurisdiction" phrase was meant to prevent.
The controversial ruling has since become precedent, broadened in its popular application to guarantee the right of citizenship to every baby born here, not just to the permanently domiciled Chinese under the treaty, but even to illegal aliens and temporary visitors from every country -- parents who have not transferred their allegiance to America.
Law professor Lino Graglia, in his scholarly paper opposing birthright citizenship, noted that Circuit Appeals Judge Richard Posner, "the nation's leading public intellectual," also argued against the practice: "... one rule that Congress should rethink ... is awarding citizenship to everyone born in the United States[.] ... Congress would not be flouting the Constitution if it ... put an end to the nonsense." Graglia concluded that the current practice is an "absurdity."
And indeed, if citizenship is purely based on geographical location at the moment of birth, well-timed travel planning is crucial. For the foreign relatives desiring admission to the U.S., an "anchor baby" birth in the right spot and time is cause for celebration. Mark Cromer, in his essay for CAPS titled "American Jackpot: The Remaking of America by Birthright Citizenship," used the subheading "Run, Squat and Drop." Perhaps an insensitive description, but such is the reality.
In fact, U.S. citizenship has become such a prized possession that an entire industry, "birth tourism," has blossomed to meet the demand from mothers from around the world who want to ensure that their babies arrive with the status of American citizenship. These babies are also granted citizenship by their parents' home country, making them dual citizens at birth.
Foreign-born applicants for U.S. citizenship must formally reject other citizenships in their Oath of Naturalization. However, children born here as dual citizens are never formally required to make such a renouncement. The State Department rarely enforces its policies discouraging dual citizenship, and has adopted, as described by Frances Stead Sellers, a sort of "don't ask, don't tell" policy.
The very idea of double allegiance is considered "civic bigamy" by scholars such as Dr. John Fonte, who notes the "principle that an American citizen should be loyal to the United States and to no other country or political power is a moral and constitutional issue of the highest order[.]"
Stanley Renshon, author of The 50% American, has estimated that over 40 million Americans are dual citizens. The ongoing practice of birthright citizenship continues to expand that figure.
The unavoidable fact is that both Hamdi and Awlaki were dual citizens by virtue of the birthright citizenship practice. Stripping them of their U.S. citizenship would not render them stateless. Neither had parents who held allegiance to America. Neither had parents who were permanently domiciled here. Neither had parents who intended to naturalize as U.S. citizens.
Of course, we cannot imply that dual citizenship equates with the terrorism that both men were guilty of, but in all practicality, imagine the nightmare if America became involved in a worldwide conflict while having a significant percentage of citizens claiming not just heritage, but actual citizenship in the very countries with which we might be at war.
As Ms. Sellers wrote of dual citizenship, "[w]ar is all about taking sides. Unless of course, you can't, because you belong on both sides."
Our nation's sovereignty relies on citizens who belong on its side, with sole allegiance to the political community of the United States of America, which, in turn, provides its citizens the guaranteed protection of the rule of law.
We must examine how the terms "presumed" and "dual" dilute the value of U.S. citizenship, rather than formulate laws that weaken its protections. We cannot continue to sweep the need for immigration reform under the rug, even when the race card is thrown. And any program of reform cannot ignore the inviting, gaping "hole in the fence" that birthright citizenship policies create.
Our government leaders need to focus on building fences, both physically and figuratively, that protect our nation and our rights as citizens, rather than passing ambiguous legislation that instead tears up the foundations of our Constitution.
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