Wrong Question in Hamdi

John C. Eastman

January 1, 2004

The Supreme Court recently agreed to review Yaser E. Hamdi v. Rumsfeld, a case in which the Fourth Circuit Court of Appeals upheld the government’s detention of an enemy combatant captured on the field of battle in Afghanistan who later was discovered to be an American citizen. The Fourth Circuit’s decision is clearly correct; historically and as a matter of just plain common sense, federal courts have never had authority to interfere with the detention of combat prisoners. The fact that Yaser Hamdi is a U.S. citizen does not alter that long-standing conclusion, but it does gives us the opportunity to reconsider a profound error the Court made more than a century ago.

The principal question that the Court will consider is whether “the Constitution permits Executive officials to detain an American citizen indefinitely in military custody in the United States, hold him essentially incommunicado and deny him access to counsel, with no opportunity to question the factual basis for his detention before any impartial tribunal, on the sole ground that he was seized abroad in a theater of the War on Terrorism and declared by the Executive to be an ’enemy combatant.’”

With all due respect, that is the wrong question. The real question should be: Why is Hamdi being treated as a citizen at all? He was born in Louisiana—and has a birth certificate to prove it—to be sure. But he was born to Saudi citizens; his father, Esam Fouad Hamdi of Mecca, Saudi Arabia, was working in Baton Rouge, Louisiana at the time on a temporary worker visa for a brief stint as a chemical engineer with Exxon. His mother, Nadiah Hussen Hamdi, was born Nadia Hussen Fattah in Taif, Saudi Arabia. The entire family returned to Saudi Arabia while Yaser was still a toddler, and Yaser never set foot on U.S. soil again until after his capture in Afghanistan during a battle with U.S. forces near Konduz. Hamdi was armed with a Kalishnikov AK-47 military assault rifle at the time of his capture.

Section 1 of the Fourteenth Amendment provides: “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The clause was clearly and expressly designed to repudiate the Supreme Court’s infamous decision in Dred Scott v. Sanford, which erroneously treated African-Americans as non-citizens, even non-persons, writing them out not only of the Constitution but of the “all men are created equal” language of the Declaration of Independence as well.

Today, the common perception of the clause is that it mandates citizenship for anyone born on U.S. soil. Such a reading dates to an erroneous Supreme Court decision in the 1898 case of United States v. Won Kim Ark, decided by the same Court, by nearly the same line-up, that two years earlier had decided the infamous case of Plessy v. Ferguson. It is a wrong reading.

For one thing, the Supreme Court’s interpretation of the Fourteenth Amendment’s citizenship clause in Won Kim Ark renders the “subject to the jurisdiction” provision of the clause completely redundant. For another, it is completely at odds with the provision of the 1866 Civil Rights Act the 14th Amendment was designed to constitutionalize. That clause provided: “All persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” Debate on the floor of the Senate about the 14th Amendment confirmed this view: Senator Lyman Trumbull, a key figure in the drafting and adoption of the Fourteenth Amendment, stated that “subject to the jurisdiction” of the United States meant subject to its “complete” jurisdiction; “[n]ot owing allegiance to anybody else.” Indeed, the first two cases in which the Supreme Court addressed the issue, first in dicta in The Slaughter-House Cases, and then as a holding in Elk v. Wilkins, recognized the Trumbull view of the clause.

The majority opinion in Slaughter-House correctly noted that “[t]he phrase, ’subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States.” Justice Steven Field, joined by Chief Justice Chase and Justices Swayne and Bradley in dissent from the principal holding of the case, likewise acknowledged that the Clause was designed to ensure that all persons born in the United States were as a result citizens both of the United States and the state in which they resided, provided they were not at the time subjects of any foreign power.

What was dicta in Slaughter-House became holding in Elk, whether the Court held that the claimant was not a U.S. citizen despite having been born on U.S. soil because the clause “subject to the jurisdiction” of the United States required that he be “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”

The children of temporary workers (much less illegal immigrant workers) simply do not qualify as “completely subject” to U.S. jurisdiction, for they are also subject to the jurisdiction of (indeed, owe primary allegiance to) their home country. Hamdi himself, as a Saudi, remained subject to the jurisdiction of Saudi Arabia and later, apparently, of the Taliban in Afghanistan. Under the original view of the Fourteenth Amendment, then (rather than the erroneous view adopted by the Plessy-era Court), he has no constitutional claim to citizenship.

To be sure, Congress is free (under its power to establish a uniform rule on naturalization) to provide citizenship more broadly than the Fourteenth Amendment requires, and I do not mean to suggest that Hamdi is not a citizen under existing statutes. But for the past century Congress has believed it was obligated to afford citizenship to people like Hamdi. Whatever the Supreme Court does with the Hamdi case, therefore, it should at the very least make clear that Congress need not extend citizenship to terrorists like Hamdi merely because they happen to be born on U.S. soil.

Dr. Eastman is an Adjunct Fellow of the Ashbrook Center, Professor of Law at Chapman University School of Law in Orange, California, and Director of The Claremont Institute Center for Constitutional Jurisprudence.

“First Principles” is a monthly column that appears in the Los Angeles Daily Journal that addresses current legal issues in light of the principles of the American founding. Copyright 2004 Daily Journal Corp. Reprinted and/or posted with permission. This file cannot be downloaded from this page. The Daily Journal’s definition of reprint and posting permission does not include the downloading or any other type of transmission of any posted articles.