Posted September 28, 2005

>Professor John Eastman, Executive Director of the Claremont Institute's Center for Constitutional Jurisprudence, has been invited to testify before the U.S. House of Representatives, Judiciary Subcommittee on Immigration, Border Control, and Claims, at 2:00 p.m. in the House Rayburn Office Building on Thursday, September 29. Dr. Eastman will discuss in particular the meaning of United States citizenship, and will argue that a persistent misinterpretation of the Fourteenth Amendment's citizenship clause has led to tragic consequences never contemplated by the framers of the amendment. The hearing on "Dual Citizenship, Birthright Citizenship, and the Meaning of Sovereignty" will also be webcast.

The Framers of both our Constitution and the Fourteenth Amendment understood citizenship to be grounded in the principle of consent. The significance of consent derives from the proposition that "all men are created equal," which requires that no one may be ruled without their consent. This revolutionary concept ennobled the meaning of citizenship by rejecting decisively the prior concept of "subjectship," by which anyone born within the geographical rule of the British king would remain his subject forever. The meaning of citizenship which is connected instead to reason and free choice stands at the center of what distinguishes the American experiment from other nations which are founded upon little else but "accident and force." Sadly, we have forgotten the meaning and significance of citizenship in recent decades, just as we have forgotten the meaning of our social compact designed to effect certain, limited, goals. Recent policies which define citizenship as flowing merely from birth upon American soil harkens back to those older times, depreciating what makes America most unique.

The Citizenship clause of the Fourteenth Amendment defines as a citizen "all persons born or naturalized in the United States, and subject to the jurisdiction thereof." The clause contains two components that bear equally on citizenship qualifications: one must not only be born geographically in the United States, but also politically subject to the government of the United States. The critical act of consent which distinguishes citizens from subjects is missing from our current, partial, reading of the Fourteenth Amendment.

The practical significance of this misreading includes the automatic granting of citizenship to the children of those who have entered the country illegally rather than respecting the laws passed by Congress which govern immigration and naturalization. Another recent, egregious misapplication of the Citizenship clause afforded Yasir Esam Hamdi, a Taliban fighter born of Saudi parents while visiting the United States, full "due process rights" as a citizen of the United States of America. Hamdi never consented to affiliate with or bear allegiance to this country, its governing principles, or its laws. He was in fact captured on the battlefield while bearing arms against American troops. That an enemy of the United States could claim protection of the very laws and processes against which he fought is but one example of the bizarre definition of citizenship which has received sanction by recent jurisprudence of our courts.

The current practice of automatically recognizing as a citizen anyone who happened to be born on American soil comports with neither the text nor the history of the Citizenship clause, nor with the most basic political theory which it was meant to restore. It is time to again recognize the significance of jurisdiction and of consent, and with these the full meaning of American citizenship and our social compact.