"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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws." Amendment XIV, Constitution of the United States
This amendment, enacted after the civil war, sets the standards for citizenship in the United States. It has been used, over the years, to also extend many of the protections found in the Bill of Rights to state criminal proceedings, such important protections as freedom of speech, freedom of the press, protection from illegal search and seizure, etc. Many people today, however, only focus on the last part of this clause, forgetting about the first part, which defines citizenship in our great country.
"All persons born or naturalized in the United States and subject to the jurisdiction thereof..." means exactly what it says. If a person is born on US soil, regardless of their parentage, they are a US Citizen. Recently, Sen. Joe Lieberman, (Republican in all but name- Connecticut) introduced a bill which would amend 8 USC 1481 and add providing material support for any organization which is on the Secretary of State's terrorism list as grounds to revoke citizenship.
In Osborn v. Bank of the United States, 9 Wheaton 738 (1824) Chief Justice Marshall, held in dicta that "[The naturalized citizen] becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual." at 827. The history of citizenship in the US was then discussed in great detail in Afroyim v. Rusk 387 US 253 (1967)
Rather than force the reader to read this case, let's summarize. From the founding of the Republic it was widely accepted that Congress had the right to determine the qualifications for citizenship. As early as 1794, many members of Congress held the English common-law doctrine that provided for perpetual allegiance and many doubted that a person could in fact renounce citizenship. A bill that would have allowed a US Citizen to state before a magistrate that he was renouncing citizenship and then departing the country was defeated in Congress in 1794 and in 1818. There the matter stayed until the 14th Amendment which was ratified in 1868. There it was established that all persons born in the United States were citizens. Congress, in the Nationality Act of 1940, established naturalization procedures and requirements for naturalization. It set a number of ways in which a person could lose one's citizenship as well, including voting in a foreign election, etc. Most if not all of those ways, except for express renunciation of citizenship, have been found to be unconstitutional. The essential rule of the Court announced in Afroyim was that a person cannot be deprived of citizenship without his/her express act renouncing such status.
Senator Lieberman is an attorney, having a law degree from Yale. As a graduate of one of the top law schools in the US, Sen. Lieberman should know better, and/or should have staff who know how to research the status of the law. The cases at point in this, Afroyim and the debate in Congress years before would have given Sen. Lieberman and his cronies a good civics lesson and show how valuable US Citizenship truly is. The supporters of this law, in a knee-jerk reaction, seem to think that by revoking someone's citizenship, they can prevent terrorist actions. That is closing the barn door after the horse has already fled. It is true that in this case, the "wanna bomber" had been naturalized for a little under a year. However, he just as easily could have been here as a lawful permanent resident, (green card) or have even been here illegally. It would not have stopped the attack. The threat of losing citizenship would have no effect whatsoever, and would not give the US any further protection against terrorism.
This bill, riddled with constitutional infirmities, a knee jerk reaction of "patriots" who obviously forgot their high school civics lessons, should be quietly filed away and forgotten, never to see the light of day.
I would point out that newly elected Senator Scott Brown, who is a practicing attorney and who served as defense counsel in the Massachusetts National Guard JAG, should also know better - and yet he has signed on as co-sponsor.
ReplyDeleteShame on both Lieberman and Brown for their failure to defend the Colnstitution, and for their willingness to engage in cheap political theater.
Thank you ToE, for another excellent article!
A much better idea would be to be a bit more careful with people from certain areas of the world. Pakistan, Saudi Arabia, Yemen, and a few others have the majority of the terrorist organizations that have attacked us and continue to attempt to attack us. If we do not have the manpower to check out everyone who has overstayed their visa then at least lets start with the ones from places previous terrorists came from.
ReplyDeleteAs far as Liebermans proposal another better idea was proposed one night in an online conversation with an immigration attorney. Just stop allowing chain residency. A child born here may be a citizen but the parents still broke the law coming here and can still be deported. The child being a citizen does not give the parents any right to stay in this country.
I have hopes Tuck that the gentlemen to whom you refer will be writing for us here soon, as his schedule permits, on those very topics.
ReplyDeleteTuck you would you suggest we treat people from Pakistan, Saudi Arabia, Afghanistan, Yemen, Somalia, Iraq, Iran.... the list can get quite long, and given the actual places that people have come from in recent terrorist attacks........that focus doesn't seem very effective. The phrase I heard used on news programming was that terrorists are looking for people now to use against us who have 'clean skins' - by which I understand them to mean people who can pass our scrutiny successfully.
I would put it to you we need a better strategy than that - a more aggressive, thoughtful strategy. We need to begin by better knowing and understanding our adveraries.
I think what Ttucker is suggesting is that we give extra scrutiny on in the naturalization process to a someone who hails from a country that has in the past had a problem with terrorism. Its my understanding that one of the problems that has long been complained of is that there is an enormous backlog of background checks currently, and this is creating all sorts of problems for people wanting to become citizens. We already scrutinize prospective citizens and look at their past ties to a whole variety of organizations. I will research and obtain more information concerning this area, but it appears to me that in the cause of the wanna-bomber that he was recruited after he was already an American citizen. No background check or search could have made a difference in his case.
ReplyDeleteI'm all for vigilance, but given few of those involved appear to be citizens, it seems a misplaced emphasis.
ReplyDeleteWe need something that reduces the number of people wanting to attack us, not just try to anticipate where and how they might try to do it.
ReplyDeleteWe need something that reduces the number of people wanting to attack us, not just try to anticipate where and how they might try to do it.
Those things are not mutually exclusive. In fact, they have nothing to do with each other, as one is law enforcement and the other is foreign relations.
They have in common competing demands for some of the same finite resources to address the problem.
ReplyDeleteIn determining what keeps us safest, we have to consider if we are going to be pro-active, or reactive in how we allocate our efforts.
I think it is time for a better offense game on our part.
Well one thing they are now saying that Nidal Hassan and the Times Square bomber have in common is they were both recruited over the internet by the American jihad guy that Obama authorized the assassination of. A better offense is the correct approach. That might mean hacking into some overseas internet providers and tracing where website updates come from. Maybe sending a Seal team to a foreign country to take them out once we find who posts the updates.
ReplyDeleteI think our comments have departed from the original goal of the post.
ReplyDeleteDenying someone's citizenship is:
1. Unconstitutional if not done along proscribed lines
2. Being promoted to allow a judiciary "ambivelence" toward people we 'no longer like.'
This proposal is an anathema. It is the purest form of "yellow-law" out there. Lieberman (and others) think it's politically potent, and therefore wise, to advocate for ripping away citizenship based upon "affiliation" with groups we don't like or suspect. Beyond the vast illegality, imagine the opportunity for abuse? Perhaps next we should say that being Southern Baptist is grounds for losing citizenship, perhaps then we can claim the Southern Baptists no longer have property rights... or better yet, we can claim Jews don't... if I recall correctly, Sen. Lieberman is Jewish... hmmm...
This is the worst form of conduct, the worst form of law, and that the far right embraces it is no surprise, but it is revolting.
Fortunately, both our Founding FAthers and those who followed them on the court, saw the danger, and provided Constitutional protections against bigotted and/or power-mad, mob-minded, brutish thugs and criminals.
Excellent post ToE - you artfully remind us of the lessons we often seem to too easily forget.
If I might respectfully disagree, Pen, about the thread of the comments diverging from the point of the post....
ReplyDeleteThe concept of what we fear and how to address our concerns about our safety go to the very heart, the core, of what Lieberman and his colleagues are attempting to do here.
Essentially, what they are attempting to do is to throw out the fundamental, core principles of due process and the most essential, the most profound individual rights because at the bottom of this, they are simply very frightened.
We all feel fear from threats. What matters is not the fear but what we do about those fears, and what we do about the threats. Our response need not be emotional or adrenaline fight-or-flight driven. We have the capacity to override those initial impulses with a more reasoned, sane, thoughtful and analytic strategic and tactical response.
The successful answer will never, ever be to simply discard our rights, discard the rule of law - in this case due process where conviction of a crime is fundamental to any punitive action. We do not really NEED to deprive anyone of citizenship; we have adequate resources in our existing law, so long as we abide by that rule of law.
We do not punish people for guilt by association; we punish people for illegal actions that are harmful.
TTuck, I'm all for cyber surveillance, but depending on where these internet organizing terrorists are located, it is essential that we do not abuse another country's sovereignty by taking action on our own. With another country, in cooperation, absolutely.
I don't know what information President Obama has available to him, but I am uncomfortable with the order for assasination of the muslim cleric, an American citizen. I have to wonder if we can assasinate him, can't we also bring him back here for trial, and a more lawful set of consequences? I'd be surprised if Sec. State Clinton couldn't persuade the Yemeni government to let us act with their permission, and cooperation to get this guy.
But it is worth remembering that neither Shahzad nor Nidal Hassan were initially anti-American. What drove them to change, what appears to be the drving perception among many insurgents is our killing of civilians in countries where we have a military presence, be it soldiers or drones.
There are solutions to getting at least some of these people on our side and the solutions do not all involve killing massive numbers of people. I would argue with you that anything less than very selective, precise killing, as a last resort, is in fact counter productive to our stated goals.
I'm sure everyone is familiar with the axiom about working hard or working smart. Here you could replace hard with brutal, violent, or lethal - or we can work 'smart'.