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E
ASTMAN
424.
DOC
2/29/2008
 
11:44:14
 
AM
955
COMMENTARIES
BORN IN THE U.S.A.? RETHINKING BIRTHRIGHTCITIZENSHIP IN THE WAKE OF 9/11
 John C. Eastman
 *Good afternoon, Chairman Hostettler and members of theCommittee. I am delighted to be with you today as you beginwhat I consider to be an extremely important inquiry with pro-found consequences for our very notion of citizenship and sover-eignty. My remarks will focus on a recent case decided by the Su-preme Court in 2004, which has presented us all with animportant opportunity to reconsider—and correct—a century-oldmisinterpretation of the Constitution’s Citizenship Clause thathas already eroded the bilateral consent foundation of citizenship,before that erosion of our national sovereignty becomes irreversi-ble.I.
 
I
NTRODUCTION
  At 4:05 p.m. on the afternoon of September 26, 1980—day 327of the Iranian hostage crisis—Nadiah Hussen Hamdi, born Nadia
* Dean and Donald P. Kennedy Chair in Law, Chapman University School of Law;Founding Director, The Claremont Institute Center for Constitutional Jurisprudence.Ph.D., 1993, Claremont Graduate School; J.D., 1955, University of Chicago Law School.The author participated as
amicus curiae
in
 Hamdi v. Rumsfeld
, 542 U.S. 507 (2004).
 
Thesuperb research assistance of Chapman law student Karen Lugo is gratefully acknowl-edged. This testimony, delivered to the House Judiciary Subcommittee on Immigration,Border, Security, and claims on September 29, 2005, is drawn from a paper initially pre-sented at Chapman University School of Law in March 2003 at The Claremont Institute’sSymposium on American Citizenship in the Age of Multicultural Immigration, and fromthe brief filed on behalf of The Claremont Institute Center for Constitutional Jurispru-dence in the
 Hamdi
case. It has previously been published in the Texas Review of Law andPublic Policy.
 
E
ASTMAN
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2/29/2008
 
11:44:14
 
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UNIVERSITY OF RICHMOND LAW REVIEW
[Vol. 42:955
 
Hussen Fattah in Taif, Saudi Arabia, gave birth to a son, YaserEsam Hamdi, at the Women’s Hospital in Baton Rouge, Louisi-ana.
1
I mention the Iranian hostage crisis because Yaser Hamdimight just as easily have been the son of parents of Iran, then ina hostile stand-off with the United States, as of [parents of] Saudi Arabia. The boy’s father, Esam Fouad Hamdi, a native of Mecca,Saudi Arabia, and still a Saudi citizen, was residing at the timein Baton Rouge on a temporary visa to work as a chemical engi-neer on a project for Exxon.
2
While the boy was still a toddler, theHamdi family returned to its native Saudi Arabia, and for thenext twenty years Yaser Esam Hamdi would not set foot again on American soil.
3
 Yaser Hamdi’s path after coming of age would instead take himto the hills of Afghanistan, to take up with the Taliban (and per-haps the al Qaeda terrorist organization it harbored) in its waragainst the forces of the Northern Alliance and, ultimately,against the armed forces of the United States as well.
4
In late2001, during a battle near Konduz, Afghanistan, between North-ern Alliance forces and the Taliban unit in which Hamdi wasserving and while armed with a Kalishnikov AK-47 military as-sault rifle, Hamdi surrendered to the Northern Alliance forcesand was taken by them to a military prison in Mazar-e-Sharif, Afghanistan.
5
From there Hamdi was transferred to Sheberghan, Afghanistan, where he was interrogated by a U.S. interrogationteam, determined to be an enemy combatant, and eventuallytransferred to U.S. control—first in Kandahar, Afghanistan, andthen at the U.S. Naval Base in Guantanamo Bay, Cuba.
6
1. Certificate of Live Birth, FindLaw.com (Sept. 26, 1980), http://news.findlaw.com/ cnn/docs/terrorism/hamdi92680birthc.pdf.2. Frances Stead Sellers,
 A Citizen on Paper Has No Weight
, W
 ASH
.
 
P
OST
, Jan. 19,2003, at B1.3
. See id
.4. The armed forces of the United States had been ordered to Afghanistan by Presi-dent Bush, acting pursuant to his powers as Commander in Chief and explicit congres-sional permission.
 See
U.S.
 
C
ONST
. art. II, § 2; Authorization for Use of Military Force,Pub. L. No. 107-40, 115 Stat. 224 (2001) (codified as amended at 50 U.S.C. § 1541 note(2000)) (authorizing force against the “nations, organizations, or persons [the President]determines planned, authorized, committed or aided the terrorist attacks that occurred onSeptember 11, 2001, or harbored such organizations or persons).5. Brief for Respondents-Appellants at 3, 6, Hamdi v. Rumsfeld, 378 F.3d 426 (4thCir. 2002) (No. 02-7338), 2002 WL 33962807.6
. Id
. at 6–7.
 
E
ASTMAN
424.
DOC
2/29/2008
 
11:44:14
 
AM
2008]
 
BORN IN THE U.S.A.?
 
957
 
Unlike his fellow enemy combatants being detained in Guan-tanamo Bay, Hamdi had a get-out-of-Cuba-free card. When U.S.officials learned that Hamdi had been born in Louisiana, theytransferred Hamdi (free of charge!) to the Naval Brig in Norfolk, Virginia,
7
from where Hamdi, under the auspices of his fatheracting as his next-friend, has waged a legal battle seeking accessto attorneys and a writ of habeas corpus compelling his release.This, because under the generally accepted interpretation of theFourteenth Amendment’s Citizenship Clause, Hamdi’s birth toSaudi parents, who were temporarily visiting one of the UnitedStates at the time of his birth, made him a U.S. citizen and enti-tled him to the full panoply of rights that the U.S. Constitutionguarantees to U.S. citizens.Hamdi petitioned the federal district court in Virginia for awrit of habeas corpus, seeking to challenge his detention.
8
Hiscase was ultimately heard by the Supreme Court of the UnitedStates, which held, in an opinion by Justice O’Connor, thatHamdi had a Due Process right to challenge the factual basis forhis classification and detention as an enemy combatant.
9
In dis-sent, Justice Scalia, joined by Justice Stevens, declined to acceptthat Hamdi was actually a citizen, referring to him instead as a“presumed American citizen” at the outset of the opinion.
10
Justice Scalia’s significant, albeit brief and somewhat oblique,challenge to the received wisdom of the meaning of the Four-teenth Amendment’s Citizenship Clause warrants our attention. As I argued in the brief I filed on behalf of The Claremont Insti-tute Center for Constitutional Jurisprudence in the case, the re-ceived wisdom regarding the Citizenship Clause is incorrect as amatter of text, historical practice, and political theory.
11
As anoriginal matter, mere birth on U.S. soil alone was insufficient toconfer citizenship as a matter of constitutional right. Rather,birth, together with being a person subject to the complete andexclusive jurisdiction of the United States (i.e.,
not
owing alle-giance to another sovereign) was the constitutional mandate—a
7
. Id
. at 7.8
. See
Hamdi v. Rumsfeld, 243 F. Supp. 2d 527, 529 (E.D. Va. 2002).9
. See
Hamdi v. Rumsfeld, 542 U.S. 507, 509 (2004).10
. Id
. at 554 (Scalia, J., dissenting).11
. See
Brief for The Claremont Inst. Ctr. for Constitutional Jurisprudence as amicuscuriae Supporting Respondents at *4,
 Hamdi
, 542 U.S. 507 (No. 03-6696), 2004 WL871165.
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