ISIS Bride from Alabama Does Not Qualify for Birthright Citizenship
(Note: some parts of this column draw on an earlier column of mine on the topic.)
Hoda Mathuna is the so-called “ISIS bride.” She left Alabama four years ago at the age of 19 to go to Syria to fight alongside the warriors of the Caliphate. She married first one jihadi, who died in battle, then married another jihadi, who likewise died in battle. Along the way she conceived a child with one of these fighters and so is now the mother of an 18-month old son. She is currently being detained in a Syrian refugee camp and wants to come “home” to Alabama to finish raising her son.
This is a woman who waged war against the United States, an act of treason. She should not be allowed to return to the United States except to stand trial. Treason is the only crime identified in the Constitution, and it is a capital crime. Someone commits treason against the United States by “levying war against them” or “adhering to their enemies (by) giving them aid and comfort.” It is such a serious offense that Congress rightly has made it a crime that calls for the death penalty.
Ms. Mathuna is clearly guilty of treason and should pay the ultimate penalty. To welcome someone like this back into the United States would be a spectacularly wrong-headed move, for it will simply increase the chances that another young American will do something as stupid and as criminal as she did and expect the same leniency. If you want less treason, you’d better punish it when you find it. Especially when it is staring you right in the face. So throwing open our arms to her is an absolute non-starter.
(Andy McCarthy suggests that the U.S. should indict her on serious felony charges, with the idea that facing years in a federal prison as soon as she sets foot on American soil may dampen her enthusiasm for a return to the vanishing point.)
There remains a question of her citizenship, and here accounts vary, although as I will point out shortly, it shouldn’t make any difference. She was born in America but is the daughter of someone who had come to the U.S. as a Yemeni diplomat. She is thus specifically excluded from birthright citizenship by the 14th Amendment because her Yemeni father, and she after him, were not “subject to the jurisdiction” of the U.S.
However, her family claims that he was discharged as a diplomat by Yemen 30 days before she was born. They, therefore, contend that she should be recognized as a natural-born citizen.
Regardless, Secretary of State Pompeo has firmly declared that “Ms. Hoda Muthana is not a U.S. citizen and will not be admitted into the United States. She does not have any legal basis, no valid U.S. passport, no right to a passport, nor any visa to travel to the United States.”
My point is quite simple: it doesn’t matter whether her father was a diplomat or not. If her parents were both citizens of a foreign country and hadn’t been naturalized, then neither they NOR THEIR CHILDREN are “subject to the jurisdiction” of the United States in the sense intended by the Framers of the 14th Amendment.
A correct interpretation and application of the 14th Amendment make this clear. This amendment, ratified in 1868, was enacted for one simple purpose: to grant citizenship to former slaves who had been born on American soil. The 13th Amendment abolished the institution of slavery, and the 14th Amendment granted American citizenship to the emancipated slaves. Citizenship had been denied them by the dreadful Dred Scott opinion of 1857.
Here’s how the first sentence of the 14th Amendment reads (emphasis mine throughout):
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.
It’s not enough simply to be born on U.S. soil. One must also “be subject to the jurisdiction” of the United States when it happens. No child born to illegal aliens is subject to the jurisdiction of the U.S. for the simple reason that his parents aren’t.
This is why the children of diplomats born in America are never considered citizens by birth. Because their parents are not subject to the jurisdiction of the United States, neither are they. Children born of diplomats are deemed to be citizens of the diplomat’s sovereign.
It’s worthy of note that the word “diplomat” is not in the 14th Amendment. Their children are not citizens by birth because their father is a diplomat, but because he is a citizen of a foreign country.
The logic is inescapable. If the children of foreign diplomats are not U.S. citizens by birth, how is it possible that children of illegal aliens could be?
This is not complicated. Illegal aliens by definition are not “subject to the jurisdiction” of the United States. They, like diplomats, are “subject to the jurisdiction” of their homeland. Illegal aliens are called “illegal” aliens for the precise reason that they are not subject to the jurisdiction of the United States, which is why they can be deported once apprehended. Legally and constitutionally, their children are no more “subject to the jurisdiction” of the U.S. than their parents are. If a child’s parents are not American citizens when the child is born, neither is he.
Daniel Sobieski points out that Rep. John Bingham of Ohio, considered the father of the 14th Amendment, explained the language of the amendment this way: “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself a natural born citizen…”
The “jurisdiction” clause was added to the 14th Amendment only after a lengthy debate. According to NumbersUSA, Sen. Jacob Howard of Michigan proposed the amendment because he wanted to make it clear that the simple accident of birth on U.S. soil was not in fact enough to confer citizenship.
Sen. Howard said the jurisdiction requirement is “simply declaratory of what I regard as the law of the land already,” an apparent reference to the Civil Rights Act of 1866.
To get rid of birthright citizenship, we do not need to amend the Constitution. We only need to apply it. And the sooner, the better.