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23–690 PDF








SEPTEMBER 29, 2005

Serial No. 109–63

Printed for the use of the Committee on the Judiciary
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Available via the World Wide Web: http://judiciary.house.gov


F. JAMES SENSENBRENNER, Jr., Wisconsin, Chairman
HENRY J. HYDE, Illinois
HOWARD COBLE, North Carolina
BOB INGLIS, South Carolina
MARK GREEN, Wisconsin
DARRELL ISSA, California
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JOHN CONYERS, Jr., Michigan
HOWARD L. BERMAN, California
MELVIN L. WATT, North Carolina
ZOE LOFGREN, California
MARTIN T. MEEHAN, Massachusetts
WILLIAM D. DELAHUNT, Massachusetts
ADAM B. SCHIFF, California
LINDA T. SÁNCHEZ, California

PHILIP G. KIKO, General Counsel-Chief of Staff
PERRY H. APELBAUM, Minority Chief Counsel

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Subcommittee on Immigration, Border Security, and Claims

JOHN N. HOSTETTLER, Indiana, Chairman

BOB INGLIS, South Carolina
DARRELL ISSA, California

HOWARD L. BERMAN, California
ZOE LOFGREN, California
LINDA T. SÁNCHEZ, California
MARTIN T. MEEHAN, Massachusetts

LUKE BELLOCCHI, Full Committee Counsel
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CINDY BLACKSTON, Professional Staff
NOLAN RAPPAPORT, Minority Counsel


SEPTEMBER 29, 2005

    The Honorable John N. Hostettler, a Representative in Congress from the State of Indiana, and Chairman, Subcommittee on Immigration, Border Security, and Claims

    The Honorable Lamar Smith, a Representative in Congress from the State of Texas, and Member, Subcommittee on Immigration, Border Security, and Claims

    The Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims


Dr. Stanley A. Renshon, Professor, City University of New York Graduate Center
Oral Testimony
Prepared Statement

Dr. John Fonte, Senior Fellow, The Hudson Institute
Oral Testimony
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Prepared Statement

Dr. John C. Eastman, Professor, Chapman University School of Law
Oral Testimony
Prepared Statement

Mr. Peter Spiro, Associate Dean for Faculty Development and Dean and Virginia Rusk Professor of International Law, University of Georgia School of Law
Oral Testimony
Prepared Statement


Material Submitted for the Hearing Record

    Prepared Statement of the Honorable Sheila Jackson Lee, a Representative in Congress from the State of Texas, and Ranking Member, Subcommittee on Immigration, Border Security, and Claims

    Resolution No. 165 of the American Legion, submitted by Dr. John Fonte

    Letter to Chairman Hostettler and National Review Article, submitted by Dr. John Eastman

    Prepared Statement of the Honorable Jim Ryun, a Representative in Congress from the State of Kansas
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    Prepared Statement of the Honorable Nathan Deal, a Representative in Congress from the State of Georgia

    Article submitted by William Buchanan



House of Representatives,
Subcommittee on Immigration,
Border Security, and Claims,
Committee on the Judiciary,
Washington, DC.

    The Subcommittee met, pursuant to notice, at 2 p.m., in Room 2141, Rayburn House Office Building, the Honorable John Hostettler (Chair of the Subcommittee) presiding.

    Mr. HOSTETTLER. The Subcommittee will come to order. Good afternoon.

    United States citizenship is a considerable privilege. Citizens may vote, carry a U.S. passport and are entitled to a full range of rights under the Constitution. The purpose of this hearing is to examine both birthright citizenship and dual citizenship and the effect that they have on our sovereignty as a Nation.
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    Currently, the United States grants citizenship to nearly every individual born on U.S. soil. This policy—based on an interpretation of the 14th amendment is sometimes referred to as ''birthright citizenship.''

    The 14th amendment states that, ''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 does not, however, provide citizenship in a blanket fashion to literally every person born on U.S. soil. Rather, it confers citizenship only to those persons ''subject to the jurisdiction'' of the United States.

    Courts have long recognized that children born to ambassadors and foreign diplomats do not fall under the jurisdiction of the United States. This raises important questions about whether the authors of the 14th amendment intended for individuals born in the U.S. to be granted citizenship even when the parents have little or no connection to the United States.

    This question is critically important in light of the Yaser Hamdi case. Hamdi, who was captured in Afghanistan fighting for the Taliban, was born in Louisiana to Saudi parents who were in the U.S. on temporary visas. He returned to Saudi Arabia as a small child and maintained little connection to the United States.

    Yet, because he was born on U.S. soil and considered a U.S. citizen, he is granted rights and benefits that a noncitizen combatant would not have been granted.

    Birthright citizenship is also a major issue in the context of illegal immigration. The Center for Immigration Studies estimates that 383,000 children are born each year to illegal alien mothers, accounting for nearly 10 percent of all births in the United States. Many aliens come to the United States illegally to give birth, knowing that their citizen children will be eligible for a large array of benefits, and will some day be able to petition on their behalf for them to become legal permanent residents.
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    It is not clear that the authors of the 14th amendment intended to confer citizenship to the children of persons who have no clear allegiance or connection to the United States.

    In recent years there has been a trend toward obtaining multiple nationalities or citizenship. Because citizenship is largely based on notions of allegiance, it is important to closely examine the consequences of this growing trend, in particular, when a person is naturalized as a U.S. citizen, he or she takes an oath which says in part, ''I hereby declare on oath that I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state, or sovereignty of whom or which I have heretofore been a subject or citizen.''

    Despite the serious nature and explicit terms of the oath, many individuals keep their previous nationality by retaining and using their foreign passport, voting in foreign elections, running for office in a foreign country or even joining the armed forces of their former nation. For example, Manuel de la Cruz immigrated from Mexico and became a U.S. citizen in the 1970s. Recently, he was elected to the state legislature in Mexico and declared loyalty to the Mexican Republic.

    Having dual nationalities certainly has its benefits. It eases travel by allowing individuals to avoid cumbersome visa requirements. But we should examine closely whether these conveniences outweigh the potential problems that can arise from conflicting loyalties. The U.S. Department of State, which does not formally recognize dual citizenship, aptly noted that ''dual nationals owe allegiance to both United States and the foreign country.''
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    In the past few years a number of nations have passed laws allowing its citizens to become citizens of other nations. This has invariably fed the trend of individuals retaining dual loyalties.

    In Afroyim v. Rusk the Supreme Court held that the U.S. Government may not revoke someone's citizenship without his or her consent. However, we should still examine whether there are ways to improve the likelihood that naturalized citizens will assimilate and show loyalty to the United States.

    At this time, I turn now to Members for opening statements. The Chair recognizes the gentleman from Texas for purposes of an opening statement.

    Mr. SMITH. Thank you, Mr. Chairman. Let me say at the outset that I know you tend to discourage opening statements by other Members in an effort to expedite the hearing, and I have not sought to ask for your indulgence in many, many weeks, if not months. So thank you for recognizing me for an opening statement today.

    I have to say that I have a special interest in the subject at hand. When I was Chairman of this Subcommittee a number of years ago, we had two hearings on this particular issue which were very informative, just as today's hearing promises to be, as well. So I have had a longtime interest in the subject, and I very much appreciate your willingness to raise the issue again today.

    Let me begin my comments with a question. In what way is America like Barbuda, Lesotho and Tuvalu. The answer is that they are all countries that automatically give citizenship to the children of illegal immigrants. Nearly every industrialized country in the world requires at least one parent to be a citizen or legal immigrant before a child born there becomes a citizen. Not a single European country automatically grants citizenship to the children of illegal immigrant parents. Many other countries have repealed their U.S.-style citizenship practices.
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    Why is birth citizenship a concern? Last year over one-half of all births in Los Angeles, our second largest city, were to illegal immigrants. One poll found that most of the women said that the reason they entered the U.S. illegally was because of automatic citizenship. Today, 42 percent of births to immigrants are to illegal immigrant mothers, one out of every ten births in the United States.

    Once an illegal immigrant gives birth in the U.S., it is unlikely they will ever be deported and they can then sign up for Federal, State and local benefit programs, courtesy of the America taxpayer. This granting of automatic citizenship flows from a misinterpretation of the 14th amendment, as the Chairman pointed out in his opening statement. It was drafted after the Civil War to guarantee that the recently freed slaves rightfully received full citizenship rights. When it was enacted in 1868, there were no illegal immigrants in the United States because there were no immigration laws until 1875, so drafters of the amendment could not have intended to benefit those in our country illegally.

    One law professor has referred to, ''the offense to common morality and common sense of conferring citizenship on children whose only connection to the United States is that their mothers crossed the border in time to give birth here.''

    Legal experts disagree as to whether a constitutional amendment or a Federal statute is needed to eliminate birth citizenship. However, there are three reasons why Congress can and should act. Number one, no Supreme Court case has dealt directly with the offspring of illegal immigrants who have given birth in the United States. Two, the Constitution expressly gives Congress the power to decide national immigration policies. And three, during the debate on the 14th amendment in 1866 the Senator who was the author said it would, ''not, of course, include persons born in the United States who are foreigners.''
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    Congress is long overdue in making sure the 14th amendment is correctly interpreted. Illegal immigration has become a crisis in America. Our borders are overrun. More than 12 million people live in the United States illegally. Passing a law to eliminate birth citizenship would defer illegal immigration and reduce the burden on the taxpayer of paying for Government benefits that go to illegal immigrants.

    Mr. Chairman, again I look forward to the testimony today and thank you for recognizing me for an opening statement.

    Mr. HOSTETTLER. I thank the gentleman from Texas. Without objection, all Members' statements will be made a part of the record.

    At this time, I would like to turn to the introduction of members of our panel—very distinguished panel today. First of all, Dr. Stanley Renshon is Professor of Political Science at the City University of New York and Coordinator of the Graduate Center's Interdisciplinary Program in the Psychology of Social and Political Behavior. He is also a certified psychoanalyst, which I believe would lead a vast majority of Americans to suggest that you are especially qualified to testify before Congress.

    Dr. Renshon has been a Visiting Scholar and Senior Fellow at Harvard University. He also served as a faculty member for New York City's ''Top 40'' program, providing executive training for top-level city officials. He has published 12 books and is the author of many articles and essays on Presidential politics, leadership and political psychology. He has appeared a number of times on national and international television and radio shows.
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    Dr. Renshon received his Ph.D. in Political Science at the University of Pennsylvania, was a Postdoctoral Fellow at Yale University, and completed his graduate work in clinical psychology at Long Island University.

    Dr. John Fonte joined the Hudson Institute in March, 1999 as Senior Fellow and Director of the Center for American Common Culture. Dr. Fonte has previously been a Visiting Scholar at the American Enterprise Institute and served as Senior Researcher at the U.S. Department of Education. He is currently on the board of the American Council for Trustees and Alumni.

    He has written numerous articles and essays appearing in national and international newspapers, journals and magazines, and has co-edited a book. His ideas on democratic sovereignty and international law were cited in the New York Times Magazine's ''Year in Ideas'' as among the most noteworthy of 2004. Dr. Fonte received his Ph.D. in World History from the University of Chicago and B.A. and M.A. in History from the University of Arizona.

    Dr. John Eastman is a Professor of Law at the Chapman University School of Law and he also serves as Director of the Claremont Institute's Center for Constitutional Jurisprudence. Prior to joining Chapman University's Law School he served as Law Clerk to Associate Justice Clarence Thomas at the U.S. Supreme Court and to Judge Michael Luttig at the U.S. Court of Appeals for the Fourth Circuit. His past experience includes practicing law at the national law firm, Kirkland & Ellis, and serving as the Director of Congressional and Public Affairs at the U.S. Commission on Civil Rights during the Reagan administration. He was the 1990 Republican nominee for Congress in California's 34th district.
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    He earned his J.D. from the University of Chicago Law School, where he graduated with high honors. He holds a Ph.D. and M.A. in Government from the Claremont Graduate School. Dr. Eastman completed his B.A. in Politics and Economics at the University of Dallas and recently has served on the panel for the Claremont Institute with less qualified members of that panel. We appreciate that.

    Peter Spiro is Associate Dean for Faculty Development at the University of Georgia School of Law and also serves as the Dean and Virginia Rusk Professor of International Law. Mr. Spiro's experience in academia includes 10 years at Hofstra University's School of Law as Tenured Professor and Associate Dean. His articles and contributions have been published in several law reviews and major publications, and he is a frequent speaker in academic and policy forums.

    Mr. Spiro previously served as International Affairs Fellow at the Council on Foreign Relations. Mr. Spiro is also a former Law Clerk to Justice David Souter of the U.S. Supreme Court and has worked in various positions at the National Security Council, U.S. Department of State and the Carnegie Endowment for International Peace.

    He earned his law degree from the University of Virginia School of Law and his Bachelor's degree, magna cum laude, from Harvard College.

    At this time, will the members of the panel please rise to take the oath?

    [Witnesses sworn.]
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    Mr. HOSTETTLER. You may be seated.

    And let the record reflect that the witnesses answered in the affirmative.

    At this time, before we take testimony from the panel, I now yield to the gentlelady from Texas, the Ranking Member, for purposes of an opening statement.

    Ms. JACKSON LEE. Thank you very much Mr. Chairman, thank you for your indulgence.

    We were held up in a meeting that proceeded over the 2 o'clock hour, but I do want to ask unanimous consent that my statement, in its entirety, be admitted into the record.

    Mr. HOSTETTLER. Without objection.

    Ms. JACKSON LEE. Then I would like to just offer these few thoughts as I listen to very informed and, I hope, instructive witnesses. This is an interesting topic to take up at this time in the backdrop of so many large issues that we must confront here in America. But I do believe in what we call here in this Congress the regular order, which means that we must proceed deliberatively to assess a number of issues.

    As I listen to the witnesses, let me reflect and remind you that even though we've had Hurricane Katrina and Rita, we also have a broken immigration system. Might I also say that in times of devastation and tragedy, this Congress has risen to the occasion. Chairman Sensenbrenner and Ranking Member Conyers, the Chairman of this Committee and myself, along with other Members did pass what we call an Immigration Hurricane Katrina Relief bill that took into consideration some of the status changes and difficulties of those who are in immigrant status, that might have been confronted by the horrors of Hurricane Katrina, and I hope, ultimately, Hurricane Rita.
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    But today I think that we are in the midst of a hearing that brings no solution to much. We really need comprehensive immigration reform. We need to address the questions of individuals who have been here in this country, working taxpayers who really are owed at least an opportunity to their right to citizenship.

    It is interesting that we are raising a hearing about birthright and dual citizenship when the framers of the Constitution did not really define citizenship. The acquisition of United States citizenship by birth and by naturalizing depended on State laws until the enactment of the Naturalization Act of 1790. The Naturalization Act of 1790 established a definition for citizenship by naturalization, but it did not define citizenship by birth. Isn't that interesting, because most everyone had at that time come from somewhere else?

    Interestingly enough, even through the 1800's and 1900's, the 20th century, we did not determine that it was a relevant enough question to address, when I might imagine that even though we would assess that most immigration was legal immigration, I imagine that much was not; and therefore individuals were born with parents who were undocumented, and they probably became great and wonderful contributors to the economy, to the society and to the intellect of this Nation.

    Prior to the Civil Rights Act of 1866 and the 14th amendment, African Americans were not considered citizens of the United States. In fact, I was less than a person at that time. And I reflect on that frequently in the definition of our history in this country. For a long period of time, we were what we call second-class citizens.

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    So I wonder and hope that the hearing today will convince those who may be questioning the value of a dual citizenship and citizenship of those who may be undocumented, the wrong direction that they take this country. Dual citizenship simply means that an individual comes to this country and is allowed to keep the citizenship of their other country.

    I would wonder whether or not there is sufficient documentation to suggest that anyone here with a dual citizenship is a threat to our security, is not contributing to our society, or is less of an American because they happen to retain their citizenship in another country—maybe for family reasons, maybe for other legitimate reasons.

    And so this hearing today, though I do believe in regular order, probably is not at the high point on our list of priorities with all of the various needs that our country is now facing and particularly some of the great needs that we're facing with immigration reform.

    Mr. Chairman, I hope that we will look forward and be forward thinking and I hope that we will begin deliberation on a number of immigration reform bills that have been filed, including my Save America Comprehensive Immigration Act, H.R. 2092, so that we can begin to look at really fixing the problem and have the distinguished panel coming before us with concrete solutions to real problems.

    I don't consider dual citizenship and the citizenship of a child born in the United States to undocumented parents as a real problem for America.

    I yield back.

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    Mr. HOSTETTLER. We thank the gentlelady.

    We will now turn to testimony from our panel. I'll remind our witnesses that we have a series of lights, and the time for those lights, until you see the red light, is about a 5-minute time period.

    Without objection, your full written testimony will be made a part of the record, and if you can contain your comments as close to that 2—5-minute time period, that was not Freudian, Dr. Renshon—if you can contain it to that 5 minutes, we would be most appreciative so we can get questions from the Members of the Committee.

    At this time, Dr. Renshon, you're recognized.


    Mr. RENSHON. Thank you, Mr. Chairman. Thank you very much, Members of the Committee. I'm deeply honored, truly, to come here and talk. I do so not so much as a representative or invitee of the majority party, but rather as an American who both studies and loves this country and is concerned about its future.

    The focus of my remarks here today is that the core issue facing American immigration policy is our ability to integrate tens of millions of new immigrants into the American national community. The heart and foundation of that community consists of our emotional attachments, a warmth and affection for, and appreciation of, a pride in, and a commitment and a responsibility toward this country's institutions, way of life, and fellow Americans.
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    Over the past four decades our capacity to help immigrants and Americans to become more integrated and attached has been compromised by two powerful centrifugal forces. One is the institutionalization of the view that race or ethnicity is and ought to be the principal vehicle of American national identity. The other is the view that Americans ought to trade in their parochial national attachments in favor of a more cosmopolitan transnational identity. Our Government, it is said by some, should allow and even encourage this. However, I think this country should only do so if it wishes to encourage civic suicide.

    Citizenship is a legal term and refers to the rights and responsibilities that become attached to a certified member of the community. Nationality, which is what I'm talking about, is a psychological term and that refers to the emotional ties, core understandings about the world, and common experiences that bind Americans together. Of course, it is entirely possible to have the rights of a citizen, but feel little emotional attachment to the country that provides them. Citizenship, however, without emotional attachment, is the civic equivalent of a one-night stand.

    Traditionally, America has always bet that immigrants' self-interest in coming here can be leveraged over time into genuine attachment, and in the past, we've won that bet primarily because of firm expectations that immigrants would integrate and a concerted effort to help them do so. Today, we have neither.

    Multiple attachments, of course, are a fact of life. We are fathers to our children and children to our parents, husbands, professors and so on. Americans, we are all these things and more, but that doesn't mean that we can always avoid making choices about which are primary. We can't easily be observant Muslims and Jews at the same time, nor can we equally hold profound emotional attachments to several countries. Dual citizenship, especially when it entails the active participation in the political life of an immigrant or a citizen's foreign country of origin, leads to conflicts of interest, attention and, most importantly, attachment.
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    Of course, immigrants have feelings regarding their countries of origin, but a strong psychological and civic case can be made that they owe and we should help them develop their primary focus to this country. My research suggests—and I have a new book coming out on it in 2 weeks, I think. My research suggests that 151 countries, including the United States, allow some form of dual citizenship. Most, with the exception of the United States, strongly regulate it without, however, outlawing it. They do so no doubt for the same reasons that lie behind the four policy suggestions that are in my prepared statement, concerns with the viability of citizen attachment in their national communities.

    Americans would be surprised and, I think, extremely disturbed to learn that it is entirely legal, and in some circles preferred, that American citizens vote in foreign elections, serve in governmental positions, take part in the army of foreign countries. These practices do nothing to advance the integration of citizens in this country.

    Allow me then two quick points before I conclude. First, the impact of dual citizenship falls disproportionately on the United States. India and Mexico, for example, allow dual citizenship but neither has to worry about the civic impact of millions of dual citizens arriving in their countries. The United States does. Of the over 22 million immigrants to the United States between 1961 and 2003, over 80 percent were from dual-citizenship-allowing countries. That's over 17.5 million, and it doesn't count the estimated 8.5 million illegal immigrants, 85 percent of whom come from countries that support dual citizenship and also doesn't take into account the children of both groups nor the Americans who are already here, who would be eligible for dual citizenship in the second, third or later generation.

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    Second, and importantly, immigrant-sending countries have discovered the self-interested advantage of having large groups of nationals become American citizens while at the same time retaining strong emotional ties to their home countries. They do so with the direct and express expectation that these dual citizens will contribute ''sustained economic and political contributions in the name of patriotism and hometown loyalty.'' That's a quote, it's not my quote, and it comes from Alejandro Portis at Princeton, who's a very well-respected immigration scholar.

    Just what are these political contributions that they're expected to make? Let me give you one example before leaving. In 2001, Juan Hernandez, a former University of Texas professor was named as the first American to serve in a Mexican President's cabinet. His role was specifically to organize and mobilize Americans in the United States of Mexican descent. And what was he mobilizing them to do? Well, he actually went on Nightline and made it quite clear, he wants to, and I quote, ''have them think Mexico first. I want the third generation, the seventh generation, I want them all to think Mexico first.''

    Americans, on the other hand, might well be excused if they wonder why one of their fellow citizens is legally entitled to work for a foreign government advocating that Americans put other countries first.

    Mr. Chairman, it's no surprise that other countries try to maximize their self-interest through their immigrants here. The real surprise is that some Americans want to help them take advantage of this.

    The question before us is whether we should encourage their success, the foreign governments' success, at the cost of our own civic, cultural institutions. I believe that the sensible answer to this, based on psychological theory, civic responsibility as well as the needs of our national community, is a very clear and direct ''no.''
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    Thank you.

    Mr. HOSTETTLER. Thank you, Dr. Renshon.

    [The prepared statement of Dr. Renshon follows:]










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    Mr. HOSTETTLER. Dr. Fonte.


    Mr. FONTE. Thank you, Chairman Hostettler. I'm John Fonte, Senior Fellow at the Hudson Institute. My testimony today has the endorsement of the Citizenship Roundtable, an alliance of the Hudson Institute, and the American Legion. At this year's convention, the American Legion adopted a resolution encouraging Congress to enforce the oath of renunciation and allegiance and to reject dual citizenship in principle and restrict its application in practice. I would like to introduce the entire resolution, No. 165.

    Mr. HOSTETTLER. Without objection.

    [The information referred to is available in the Appendix.]

    Mr. FONTE. America has had more success assimilating immigrants than any other country in the history of the world because since the early days of the Republic, we have pursued a policy of patriotic assimilation. At the heart of patriotic assimilation is the transfer of allegiance. For more than 200 years, immigrants have taken an oath renouncing prior allegiance and transferring sole political allegiance to the United States of America.
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    The transfer of allegiance is central to America because of the kind of country that we are. If we were a country that did not receive large numbers of immigrants, this would not be as important in practical terms, but it is precisely because we are a nation of assimilated immigrants that we must be serious about dual allegiance.

    We are a civic, not an ethnic nation. American citizenship is not based on belonging to a particular ethnicity, but on political loyalty to American democracy. Regimes based on ethnicity support the doctrine of perpetual allegiance, for one is always a member of the ethnic nation. In 1812, Americans went to war against the concept of the ethnic nation and the doctrine of perpetual allegiance. At this time, Great Britain under the slogan ''Once an Englishman, always an Englishman'' refused to recognize the renunciation clause of our citizenship oath.

    Today, some immigrant sending countries appear to be closer to the British position in 1812 than to the American position of a civic nation as opposed to an ethnic nation.

    Dual allegiance violates a core American principle of equality of citizenship. Dual citizens are specially privileged, supra citizens who have voting power in more than one nation and special privileges like EU privileges that the majority of their fellow American citizens do not have.

    I recently talked to a British immigrant who had become an American citizen while retaining British citizenship. This immigrant dual citizen cast ballots in 2004 in both the U.S. and British elections within 5 months of each other.
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    Now, most Americans instinctively recognize something is wrong with this situation and that it mocks our concept of equality of citizenship. Dual citizens exist in a political space beyond the U.S. Constitution. As members of foreign constitutional communities, they have different and, in some cases, competing and conflicting responsibilities, interests and commitments. By objective practical necessity, as well as moral obligation, these other responsibilities, interests and commitments dilute their commitment and allegiance to the United States of America.

    The great New Deal lawyer and Supreme Court Justice, Felix Frankfurter, was absolutely right when he said that voting in a foreign election and serving in a foreign government revealed ''not only something less than complete and unswerving allegiance to the United States, but also elements of allegiance to another country in some measure at least inconsistent with American citizenship.''

    Now, it's sometimes argued even though the principle of retaining political loyalty to the old country is inconsistent with American democracy, the result is a good thing in practice because many immigrant dual citizens promote pro-American and democratic values in the elections of their birth countries. Now, this sounds reasonable, but it's not always the case.

    For example, dual citizen Manuel de la Cruz was elected to the Zacatecas legislature in Mexico as a member of the traditionally anti-American Democratic Revolutionary Party, the PRD of Mexico. If you look at the website of the California PRD, the political home to many naturalized American citizens, it contains untruths about the United States, including the charge that Mexican migrants live in the United States without human rights.
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    In 2003, the California PRD contained pictures not only of Che Guevara, but of Lenin as well. Here is a picture of Lenin on the California PRD website. So much for the promotion of American values.

    The issue is clear. Should we continue to promote the rapid increase in dual allegiance, which will happen by default if no congressional action is taken, or should we reject dual allegiance in principle and practice? If enacted into law without changes, McCain-Kennedy would result in massive increases in the number of American citizens who have dual allegiance. This harms patriotic assimilation. This is the opposite of our great historical success.

    What can be done? There's plenty that can be done to restrict dual allegiance within the bounds of the Afroyim Supreme Court decision. Many acts, such as voting in a foreign election, can be made felonies. Exceptions for serving the national security interests of the United States could be made.

    The purpose of such legislation is to affirm our deepest principles; it's not to punish people who may be well meaning and following current practice. The legislation would not be retroactive, but simply say, from now on these are the rules. Legislation has been introduced today—I think at this very moment—by Congressman J.D. Hayworth, the Enforcement First Act, that will do exactly this in title 7 and restrict dual allegiance.

    In opposing dual allegiance, we of the Citizenship Roundtable stand with the Founding Fathers, including both Hamilton and Jefferson, those political rivals, and also political rivals, Theodore Roosevelt and Democratic President Woodrow Wilson. We stand with Justice Louis Brandeis and his protege, Justice Felix Frankfurter, and with the administration of Franklin D. Roosevelt, which said, ''Taking an active part in the political affairs of a foreign state by voting in the election of that state involves a political attachment and practical allegiance thereto which is inconsistent with continued allegiance to the United States.''
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    For FDR yesterday and for Americans today this is simply common sense. Now is the time, during the current debate over immigration, for Congress to reject dual allegiance in principle and restrict and narrow its application in practice.

    Thank you.

    Mr. HOSTETTLER. Thank you, Dr. Fonte.

    [The prepared statement of Dr. Fonte follows:]








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    Mr. HOSTETTLER. Dr. Eastman.


    Mr. EASTMAN. Chairman Hostettler, thank you for having me, and good to see you again.

    Before I begin my formal remarks, I can't let go unchallenged the incorrect statement by Representative Jackson Lee about the founders and their understanding of citizenship. African Americans in a number of States were recognized as citizens; and the notion that the ''three-fifths'' clause treats African Americans as less than whole when its purpose was to deny additional representation to slave owners, I think needs to be challenged every time that canard is made and, hopefully, we'll get beyond that.

    I come here to talk about this important issue, and I commend you for taking it up. In light of the Supreme Court's Hamdi case, I think now is a perfect opportunity to revisit a 100-year-old error by the Supreme Court.

    Hamdi was born in Louisiana, as you pointed out in your opening remarks, to Saudi parents. This misunderstanding of the citizenship clause then allowed us or required us to treat him as a citizen. He was eventually captured, engaged in armed conflict against the forces of the United States because he never had any allegiance to the United States as we expect of our citizens. And this is an opportunity to revisit that.
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    The Constitution's text actually has two components. It says ''birth on United States soil'' and ''subject to the jurisdiction thereof.'' The ''subject of the jurisdiction'' clause, as I elaborate at greater length in my written testimony, means complete allegiance owing, subject to prosecution for treason-type jurisdiction, not the mere territorial jurisdiction that anybody coming here visiting as a tourist is subject to if they exceed our speed limits on our highways.

    I think it's important to understand that Yaser Hamdi never had that more complete jurisdiction and therefore was not a citizen as required by the Constitution's text. Textually, the birth-is-enough view renders the second clause of the Constitution's citizenship clause entirely redundant. Historically, the language of the 1866 Civil Rights Act, which the 14th amendment was intended to constitutionalize, makes very clear that all persons born in the United States and not subject to any foreign power are declared to be citizens of the United States.

    The authors in the legislative history, the authors of that language, Senator Lyman Trumbull said, ''When we talk about 'subject to the jurisdiction of the United States,' it means complete jurisdiction, not owing allegiance to anybody else.'' Senator Jacob Howard said that it's ''a full and complete jurisdiction.''

    The interpretative gloss given by Senators Trumbull and Howard, adopted by Congress, understood by those that ratified the 14th amendment, was accepted by the Supreme Court in its first two cases addressing the citizenship clause. In the Slaughter-House cases, both the majority and the dissenting justices in that case recognized it meant this more complete allegiance-owing jurisdiction.
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    That was only dicta in Slaughter-House, but in the 1884 case of Elk v. Wilkins the Supreme Court held that a claimant was not subject to the jurisdiction of the United States at birth if he was merely subject in some respect or degree, but completely subject to the political jurisdiction and owing it direct and immediate allegiance.

    Now, in 1898, the Supreme Court reversed course. And I can understand the sentiments of the Court for doing so. In the case of Wong Kim Ark, the Supreme Court dealt with a child of a Chinese immigrant who was here legally, permanently, but subject to a treaty that we had entered into with the emperor of China that would never recognize the ability of anyone to renounce their prior citizenship. However the sympathy there falls, we should not read that Wong Kim Ark case so broadly as to insist upon the Constitution setting a minimum threshold for conferring citizenship on anyone who happens to be born here, whether here permanently or temporarily, whether here legally or illegally, or the worst case scenario, whether here with a design to cause harm to the United States, to engage in armed conflict against United States.

    The Hamdi case, I think, makes very clear that the prospect of potential terrorists coming across our border and giving birth to children once they're here in order to specifically open up a Fifth Column on our shores is a very real possibility.

    Now, you might want to defer to the Supreme Court's decision and say, Congress can't do anything about it. There are a couple of reasons, that I'll close with, where I think that's not the case here.

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    First, I think the decision is just simply wrong in its broader application, and it was therefore dicta only in its broader application not dealing with particulars of that case.

    But second, the Supreme Court itself has regularly recognized that this body has plenary power over naturalization policy. You don't have power to go below the floor that the Constitution sets, but we should not be broadly interpreting what the Constitution mandates in order to restrict the plenary power of this body of Congress to define and determine naturalization for this country.

    Again, Hamdi's case makes this powerful for us on the urgency of taking this up now. The notion that we can have dual allegiance, that we can expect some of our citizens to actually take up arms for countries that might one day be engaged in war against us means that now is the time to revisit this, to get the constitutional minimum set correctly and leave anything else beyond that to the policy judgment of Congress.

    Thank you, Chairman.

    Mr. HOSTETTLER. Thank you, Dr. Eastman.

    [The prepared statement of Dr. Eastman follows:]


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    Mr. HOSTETTLER. Mr. Spiro.


    Mr. SPIRO. Thank you, Mr. Chairman. Thank you for giving me the opportunity to testify on the subject of dual citizenship.

    Dual citizenship is, in my view, a phenomenon of considerable importance. The dramatic increase in the incidence of dual citizenship is evidence of the changing orientation of individuals in a transformed global order.

    Although I believe dual citizenship to be a matter of great importance, I do not believe that it is the appropriate target of legislative action. Dual citizenship is an almost entirely benign phenomenon. Dual citizenship poses benefits not only to individual Americans; in my opinion, dual citizenship affirmatively serves the natural interest as well.

    I would like to make three brief points in my opening statement before the Committee. First, it is important that we understand all the various sources of dual citizenship, because that inevitably colors our thinking on the issue. Second, I would like to explain why dual citizenship poses no threat to the national community and to rebut some of the arguments you have heard leveled today against the status. And finally I would like briefly to explain how embracing dual citizenship will advance our interests by advancing the entrenchment of democratic values on a global basis.
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    From the earlier testimony, from Drs. Fonte and Renshon, one might get the idea that dual citizenship arises only among naturalized Americans who retain their homeland citizenship. Nothing could be further from the case; in fact, many cases of dual citizenship are also arising from two other contexts.

    Tens of thousands and perhaps hundreds of thousands of native-born Americans are now acquiring additional citizenships on the basis of their ancestry. These Americans largely hail from well-established, fully assimilated immigrant communities. Many thousands of native-born Americans, for instance, have acquired Irish citizenship on the basis of even just a single grandparent's roots in Ireland.

    Many other native-born Americans have similarly acquired Italian, Greek, British and Israeli citizenship while they remain Americans living in the United States. These Americans are seeking to solidify their ties to their ancestral homelands at the same time they remain good Americans in every sense of the term.

    Dual citizenship is not just about new immigrants from countries such as Mexico. It is now a deeply pervasive phenomenon.

    The other major source of dual citizenship about which we've heard nothing today results from the birth to parents of different nationalities, one of whom is American. In the face of globalization, this source of dual citizenship is also dramatically on the rise. In this context, dual citizenship is about sustaining the identities of one's own parents. To deny dual citizenship in such cases is to force children to choose between their parents' identities. Again, this phenomenon is increasingly pervasive and cuts across nationalities.
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    It is not in any way a problem of assimilation. In these cases, we are talking about the children of Americans. These sources of dual citizenship put a different face on the phenomenon. As you contemplate legislative action on the subject, I would ask you to contemplate these dual citizens as well as those who acquire the status in the process of naturalization.

    Second, even for those who do acquire the status through naturalization, dual citizenship imposes none of the dangers asserted by the other witnesses here today. With the minor exception of service in senior Federal Government positions, dual citizenship poses no concrete harms. Of course, dual citizenship reflects continuing ties to a country of origin, but that is a part of the great American tradition of pluralistic identities. The citizenship tie by itself makes an individual no more likely to do the bidding of another government than the U.S. political system.

    In the era before wide acceptance of dual citizenship, ethnic communities have worked within the U.S. political system to advance the interests of their homeland, as surely all Members of this Committee have experienced firsthand. Irish Americans, Jewish Americans, Italian Americans, Armenian Americans, Greek Americans, Polish Americans—the list is almost as long as the list of the nations of the world. All of these American communities have historically lobbied and voted in ways calculated to benefit their countries of origin.

    If ''hyphenated Americans'' can undertake such political action without threatening our system, surely the system can absorb the political empowerment of ''ampersand Americans,'' nor would the maintenance of origin nationality retard the culture assimilation of new Americans. In the contemporary context, dual citizenship has emerged as a way of expressing one's continuing homeland identity. Maintaining alternate Italian or Irish citizenship is akin to membership in the Knights of Columbus or the Order of Hibernians. It has become a way of saying who we are.
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    Finally, accepting dual citizenship advances U.S. national interests on a global basis. Many dual citizens will remain politically active in their homelands even after they become Americans. Through dual citizenship the United States now enjoys a direct voice in the politics of other countries. I do not mean that such individuals will crudely do the bidding of the United States in those countries, but such individuals as Americans will surely work to sustain and entrench constitutional democratic systems in their countries of origin. Having absorbed our political traditions in the process of becoming Americans, dual citizens will be able to put them to work back home. That serves our national interests in advancing the global cause of democracy.

    In closing, Mr. Chairman, I would like to suggest briefly that the politics of dual citizenship also cuts against any legislative action on the subject. It is remarkable how little opposition has surfaced in this country to dual nationality in the face of the quiet explosion and the number of dual citizens. That indeed may be explained by the fact that dual citizenship is increasingly commonplace. More and more Americans have nephews and nieces, siblings and other family members, friends, neighbors and coworkers who are dual citizens and also good Americans.

    This is not an immigration issue, this is a matter of how Americans, many of them native born, are living and connecting in a new world. The maintenance of additional citizenship ties is not a problem that needs fixing. I would urge you not to take action against those who have or would like to acquire dual citizenship.

    Thank you for considering my views on this subject.
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    Mr. HOSTETTLER. Thank you, Mr. Spiro.

    [The prepared statement of Mr. Spiro follows:]


    Good morning Mr. Chairman, Representative Jackson Lee, and Members of the Subcommittee. Thank you for the opportunity to testify before you today on the issues of dual and birthright citizenship.

    For the record, I am Rusk Professor of International Law at the University of Georgia Law School, where I teach subjects relating to immigration and international law. I am a former law clerk to Judge Stephen F. Williams on the U.S. Court of Appeals for the D.C. Circuit and to Justice David H. Souter of the Supreme Court of the United States. I have also served as an Attorney-Adviser in the Office of the Legal Adviser, U.S. Department of State, as well as Director for Democracy on the staff of the National Security Council. I was a recipient of a 1988–89 Open Society Institute Individual Project Fellowship to study the law of U.S. citizenship. I was a participant in the 2001–02 German Marshall Fund project on dual citizenship, and have written widely on issues relating to citizenship and nationality.(see footnote 1)

    The last fifteen years has witnessed a dramatic increase in the number of individuals globally who hold more than one nationality, and the United States has been no exception to this trend. Where dual citizenship was once condemned by most countries of the world, and was largely an anomaly insofar as it was tolerated at all, it is now accepted by a growing majority of states.
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    There is something about dual nationality that seems to provoke a reflexive distaste. Some Americans might be astonished, and perhaps appalled, to learn of dramatic trends toward the near-complete toleration of dual citizenship. But that astonishment and opprobrium will not suffice to justify the suppression of dual nationality. Such disfavor is no more than an echo of a time in which dual nationality did pose a serious threat to the peace of nations. As that threat has evaporated, accepting dual nationality may now be in the affirmative national interest—by way of facilitating the global dispersion of democratic values—as well as a matter of affirming the full breadth of individual identity. It is, in any case, too late for the entrenchment of dual nationality to be reversed. Dual nationality has become a fact of globalization.

    It has not always been so. Nationality was once a singular characteristic. A defining feature of nation-states and modern international relations has been the exclusivity of national identification and the notion that individuals should have one—and only one—nationality. Just as the nation-states of the 19th and 20th centuries carved up the world's territory to the end that all was spoken for but none shared, so too did they try to allocate the world's population.

    And they had some success: Although migration has always resulted in some cases of dual nationality, until recently dual nationality remained an anomaly, a status disfavored to the point that it was considered immoral. The venerable American diplomat George Bancroft observed in 1849 that nations should ''as soon tolerate a man with two wives as a man with two countries; as soon bear with polygamy as that state of double allegiance.'' In 1915, Teddy Roosevelt derided the ''theory'' of dual nationality as ''a self-evident absurdity.'' Dual nationality was thought to represent an intolerable division of the loyalty owed to one's country. Almost all states canceled citizenship upon naturalization elsewhere; until the late 1960s, U.S. law imposed a hair-trigger standard on dual nationals under which American citizenship was forfeited for so much as voting in another state of nationality.
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    But this antipathy toward dual nationality is fast eroding, and the incidence of dual nationality is now growing at an explosive pace. Today, many are born with dual nationality, the product of binational parentage. Others acquire dual national status with new citizenships, retaining birth citizenship upon naturalization in another country. In both cases, states are moving to recognize, rather than to quash, the retention of other nationalities. Some ''sending'' states (that is, states with high emigration) are actually encouraging the acquisition of other nationalities. Mexico, the Dominican Republic, Italy, India, the Philippines, and Thailand are among many recent additions to the list of those countries allowing birth citizens to retain nationality when they naturalize elsewhere.

    Even in most ''receiving'' countries, including the United States, the quiet rise in dual nationality has attracted little controversy; the prospect of millions of dual Mexican-American nationals concentrated on the southern border, no less, has failed to provoke any policy initiatives for deterring dual nationality. As globalization fuels migration, and states no longer attempt to suppress dual nationality, that status is now almost commonplace. Though some still decry the status, these opponents have failed to attract any significant public attention or following.


    To the extent that popular distaste for dual nationality can be elaborated into an argument, it usually hinges on the impossibility of divided loyalties. In the popular mind, dual nationality has been loosely identified with shadowy fifth columns and saboteurs.

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    The historical explanation is far more prosaic. The origin of the norm against dual nationality had nothing to do with spies and little to do with loyalties; rather, it was rooted in the intractable challenges that dual nationals posed to the institution of diplomatic protection. In the old world, the rights of individuals depended entirely on nationality, and sovereigns could do as they pleased with their own. With respect to a dual national, the right of one state to protect its citizens from mistreatment by another ran up against the other state's well-established sovereign discretion over its own nationals.

    Disputes over the treatment of dual nationals often posed serious irritants in bilateral relations of the 19th and early 20th centuries. At one time or another, such disputes were central to U.S. relations with all the major European powers.

    A frequent cause of such disputes was the refusal of the ''sending'' states of the day (including Great Britain, Italy, and the German principalities) to recognize the capacity of individuals to transfer nationality—that is, to abandon their original nationality and become Americans. For instance, immigrants who had naturalized in the U.S. were, during visits to their homeland, prosecuted for failing to satisfy military service obligations in their country of origin. U.S. diplomats would attempt to shield Americans from such imposition against the vigorous objections of the other country of nationality.

    Whether deserving of protection or not, dual nationals posed an intolerable threat to relations among states for whom warfare was often a viable policy option. The War of 1812 was in large part provoked by Great Britain's attempt to enlist U.S. citizens whose naturalization it did not recognize—in other words, a problem of dual nationality—and U.S. foreign relations compilations for the 19th and early 20th century are replete with high-level disputes relating to dual nationals. By way of a solution, the U.S. negotiated treaties (including the so-called Bancroft conventions of the 1860s and 1870s, negotiated with several German and Scandanavian countries) providing for the attribution of sole U.S. nationality for immigrants, with a reversion to sole original nationality upon permanent return to a home country. These bilateral arrangements found a backstop in U.S. nationality law, under which a variety of acts (including voting, holding office, serving in the armed forces, or naturalizing in another country) resulted in the automatic loss of American citizenship.
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    Through the middle of the 20th century, dual nationality in any sort of active sense was thus effectively prohibited under U.S. law. But this regime (also adopted by a vast majority of other countries and not significantly softened until the last decade) had nothing really to do with loyalty or allegiance. In some cases, Americans holding passive nationality (through parentage) in Axis nations simply chose the other side when it came to military service, but with little complication (they simply lost their U.S. citizenship in the act of enlisting elsewhere). There appears not a single notable instance of a dual national having engaged in espionage—perhaps not surprisingly, as any real spy would be foolish to advertise the competing attachment.


    If the rule against dual nationality was founded in issues of diplomatic protection, that foundation has been washed away. In today's world, of course, sovereigns cannot do as they please with their subjects—that's what human rights are all about. Other countries now protest the treatment of individuals regardless of nationality. Against this backdrop, dual nationals present little more of a threat to bilateral relations than do mono-nationals. In contrast to the 19th and early 20th centuries, it is today unlikely that a dual national could by fact of his or her status rupture diplomatic relations between states. Indeed, there may be some benefit to encouraging the maintenance of dual nationality, at the same time that accepting the status allows individuals to realize their complete identities.

    Objections to dual citizenship are sometimes posed in terms of the possibility of diluting full civic engagement in more than one country; in terms of the difficulty of following different cultural traditions; and in terms of the possibility of conflicting attachments and loyalties. In fact, dual citizenship poses few problems along any of these metrics. Indeed, accepting dual citizenship is now not only in the interest of many individual Americans but also in the interest of the nation as a whole.
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    First, individuals can be fully engaged and knowledgeable citizens of more than one country. Political and civic capacities are not a zero-sum proposition. All of us have associational involvements aside from our participation in national affairs as citizens, and it has never been thought that such additional memberships detract from citizenship. Quite the contrary. Involvement in state and local politics does not preclude responsible participation in national processes. Likewise, participating in the affairs of another country does not categorically preclude responsible participation in the affairs of this one. Of course, if one spends all one's time at work, or on church affairs or volunteering for the Red Cross, or on local matters, there may be little time left over for national politics—the same might hold true where a dual national concentrated his or her energies on the other country of nationality. But we don't cancel the citizenship of the Red Cross volunteer; the incapacity objection against dual nationality thus falls short. Dual citizens can be responsible participants in both countries of nationality.

    Dual citizens can also, perhaps even more clearly, remain informed participants in multiple polities. The communications revolution has settled that question. The Internet now provides easy global access to local media, so that even the isolated individual can stay in touch with homeland developments. Of course, most emigrants tend physically to congregate in some forum (often living in the same neighborhoods in their country of settlement). In practice, the channels of information are multiple, and sometimes almost as dense as they would be back home.

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    If the question here is whether individuals can follow two different cultural traditions, it is beside the point. Mono-national Americans follow vastly different cultural traditions among themselves. It is not a requirement of U.S. naturalization (as it was until recently in Germany) that one have culturally assimilated; there is no shared American canon (an equivalent to Schiller, Goethe, and Wagner) that is essential to the American identity. Of course, one can—many do—continue to follow the cultural traditions of one's homeland even if one terminates the formal citizenship tie to that country. That, indeed, is a part of our national tradition.

    It would be quite another thing simultaneously to maintain different political traditions. One can hardly be an old-fashioned monarchist and a democrat at the same time. To the extent that citizenship is mostly about political rights (that is what marks the primary difference between the status of permanent residents, aliens, and citizens), the political traditions argument might have held sway against immigrants from the Sicilian village or the Lithuanian shtetl. But this objection has largely been overtaken by the global trend in favor of democratic governance. Old-fashioned monarchists have gone the way of the dodo bird, and understanding of basic democratic governance is now nearly universal. There are, of course, some old-fashioned dictators still around. But those who hale from such countries do not typically subscribe to totalitarianism. Even when they wish to retain their homeland citizenship, it is out of attachment to the country, not to the political system. Of course, most who emigrate from repressive political systems are doing so precisely because they oppose their homeland regimes. There is only one political tradition today, and dual nationals will be as much a part of it as their mono-national counterparts.
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    That leaves the most prominent contemporary objection to dual nationality: the specter of an electoral fifth column. As the political columnist and ardent dual-nationality critic Georgie Anne Geyer wrote of Mexico's recent acceptance of dual-nationality status (which could, at least in theory, create a population of several million dual Mexican-American citizens), it ''creates a kind of Mexican political lobby of newly enfranchised citizens of Mexican descent whose cultural allegiance would remain in Mexico.'' Similarly, the restrictionist Federation of Americans for Immigration Reform (FAIR) claims that the Mexican government is ''attempting to maintain the allegiance of a huge voting bloc in U.S. elections.''

    But to what end? Globalization and the end of the Cold War have greatly reduced the number of issues on which states suffer distinctly conflicting interests. On trade issues, for example, Mexican national interests in most cases coincides with the interests of American consumers (leaving aside the improbability that dual nationals would command significant legislative representation). In that case, can it be deemed somehow against the ''national'' interest to vote in a way calculated to benefit another country?

    Of course, the citizenship tie will hardly be determinative of voting behavior. Americans often vote with an eye to the interests of their ethnic community; indeed, that is at the core of our political tradition. Mexicans who naturalize as U.S. citizens and who abandon their Mexican nationality in the process (which used to be the case by operation of Mexican law) could, of course, continue to vote Mexican interests even in the absence of the formal link. On the other side, it seems vastly to overestimate the current significance of citizenship to assume that an individual who retains alternate nationality will necessarily vote accordingly. Citizens are hardly a docile herd, ready unthinkingly to do the bidding of their governmental masters under solemn oaths of loyalty. Emigrants, especially, tend not to accept the command of homeland rulers, and their political conduct is likely to be driven more by other interests than those of their alternate nationality.
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    Dual nationality is not only possible; it poses affirmative benefits. This is true whether one considers the issue as one of national interests or of individual rights.

    From a national interests perspective, dual citizenship presents a tool in solidifying the global reach of our constitutional values. A naturalizing alien who gives up his or her original citizenship is limited in the extent to which it is possible thereafter to influence the political processes of the homeland. But that seems counterproductive to the American national interest insofar as we may want him to exercise such influence. Naturalizing aliens are likely to absorb American democratic mentalities. If they maintain dual citizenship, they will be able to put those democratic tendencies to work back home. One can plausibly assert as evidence that the participation of dual nationals of Latin American and Caribbean countries resident in the United States has been a significant factor in successful democratic transitions. So even a traditional policy calculation of dual nationality points to accepting dual nationality.

    That calculation is stronger still when considered from a rights perspective. Nationality may be an instrument of state control, but it is also an important form of individual identity and free association. Restrictions on dual nationality thus comprise restrictions on identity, as are restrictions on other forms of association; denying a person's full identity both as American and as British or Israeli or Dominican is not so far from denying someone's identity as an American and as a member of a religion or political group or even a family. The last category is especially important in this context. For those born with dual nationality to parents of a different nationality, a rule against dual-national status forces the child to choose between the two. In the absence of any significant cost to society in the maintenance of dual nationality, forcing that choice—and the loss it may well represent to the individual—seems unjustifiable.
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    Here to Stay

    And so what of such solemn terms as ''loyalty'' and ''allegiance'' that have tended to drape discussions of dual nationality? National citizenship may now resemble something akin to membership in other groups—religions, corporations, localities, and the innumerable other elements of civil society. Nationality no longer defines individual identities in the way that it used to, and perhaps nations can no longer jealously demand that their membership remain a monogamous one. Maintaining membership in another national community may have emerged to be no more threatening than maintaining membership in the Catholic Church, the Knights of Columbus, the Sierra Club, or Amnesty International.

    The deeper significance aside, it seems clear that multiple nationality is here to stay. U.S. law now fully tolerates the status. Americans who naturalize elsewhere retain their U.S. citizenship unless they really want to renounce it (a practice now protected under constitutional rulings of the U.S. Supreme Court); foreigners who naturalize in the U.S. may retain their original nationality, to the extent permitted by the country of origin (the oath of naturalization, under which new citizens are required to renounce absolutely allegiance to foreign powers, has never been enforced). Together with those born with dual nationality, the number of dual nationals is growing dramatically. It is remarkable how little opposition has surfaced in this country to dual nationality in the face of this quiet explosion. That, indeed, may be explained by the fact that dual citizenship is increasingly commonplace, and that more and more Americans have nephews and nieces, siblings and other family members, friends, neighbors and co-workers, who are dual citizens and also good Americans. And more Americans of a broadening range of national origins are themselves acquiring the status, not just among new immigrant groups, but including many among those whose Irish, Italian, Jewish, and British ancestors came to the United States long ago.
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    Nor is there any clear mechanism available for policing against multiple citizenship even if the will emerged to undertake some sort of enforcement action. The Supreme Court's protection of the rights of American citizens to retain their citizenship even if they acquire an alternate citizenship effectively precludes legislative action against the status. For the United States to require the termination of original citizenship upon naturalization as an American would present an administrative nightmare, and deter the assimilation of many individuals who are already in our midst as permanent resident aliens. On the contrary, we should be welcoming new Americans even as they maintain their homeland ties in the great American tradition of pluralist identities. That, in any case, is the future we face. Thank you for this opportunity to present my views on this important subject.

    Mr. HOSTETTLER. At this time we'll turn to questions by Members of the Subcommittee.

    Dr. Renshon, what problems are posed when an individual attempts to carry out the responsibilities of being a citizen in two countries? I would especially like for you to possibly answer it in the context of the example that you made in your testimony—I'm trying to recall it here, that you talked about a Juan Hernandez as being named the first American to serve in a Mexican President's cabinet.

    You went on to say, according to your testimony, he wants Mexican Americans in the United States to think, ''Mexico first. I want the third generation, the seventh generation, I want them all to think Mexico first.''

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    If you could potentially elaborate on some specifics that you think might—issues that Mexico might be considered first politically and then, secondly as an aside, I guess maybe to answer first—and maybe you don't know the answer to this question—but could Mr. Hernandez have been a member of the President's cabinet in Mexico if he was not a citizen of Mexico?

    Mr. RENSHON. I don't know the answer to your second question but let me backtrack first to the general question.

    When we talk about emotional attachments, I'm trying to get across the point that we're talking about a rough preponderance. I think John Fonte used the term complete and unswerving, sort of the idea of the 100 percent American. That's not my particular point of view.

    What I'm trying to say is that what we need are people who, on balance, are tilted toward their American nationality. Now that percentage will differ with certain people, it will differ over time, but what we want to do is bind people over time to the American political system. And I think what we do and what we don't do helps to solidify those attachments.

    I think when you allow people to vote in countries other than the United States—and, remember, when you're talking about voting in another country, you're not just talking about going and pressing a lever; we now have the phenomenon of governments sending their representatives to barnstorm in the United States to organize a campaign in the confines of the United States, so it's a real process which is ongoing.

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    I quote in the presentation a piece by Robert Weisberg, who's a political scientist; and one of the things he studied, using the national election statistics, was that the act of voting itself cemented people to the political process regardless of whether they won or lost. Usually we think if you win the election, you're a happy camper. But what his research showed was that simply participating in an election was itself emotionally cementing. Well, if it's true for Americans, it's true for Americans doing that abroad.

    So my point is simply that we have to try in a lot of different ways to try to foster the attachment of Americans. In part, we have to keep them from doing things, and we also have to do certain things to help them along.

    This isn't the place to talk about integrating immigrants, but in my book I have a chapter on what we ought to do about that, and one of the things that I suggest is that we ought to have free English for any immigrant who wants to have it. I know there are many people who want to learn, and English is the key route to assimilation, because through that you have experience, through that you have jobs, through that you're a part of the community and you gather up the experience over time that helps you to be more of an American than you are what you used to be. It's a process.

    Mr. HOSTETTLER. Thank you.

    Dr. Eastman, in your opinion what class of persons did the authors of the 14th amendment intend to include as being, ''subject to the jurisdiction,'' of the United States? For example, what about the children of legal permanent residents, temporary visitors or tourists on tourist visas, temporary workers and illegal aliens.
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    Mr. EASTMAN. Mr. Chairman, I don't think, as an original matter, their understanding was that it would include any of those classifications, that subject to the full and complete jurisdiction, this allegiance-owing type of jurisdiction that we're talking about meant that they really could have only a single citizenship. And the fact that they were children and therefore owed allegiance through their parents to a different sovereign, whether the parents were here legally or illegally, temporarily or permanently, did not alter the fact that that was the kind of sovereign jurisdiction that was envisioned in the 14th amendment.

    And it came up, in particular, in the discussions, debates over ratification and the drafting of the 14th amendment with respect to Native Americans. Even with respect to Native Americans, who in one sense clearly owed at least a derivative allegiance to the United States, their primary allegiance was to their tribe, and the discussion was that that was not sufficient for this mandatory citizenship of the Constitution. And I'll take up an issue on that point to show what the confusion about citizenship and sovereignty, what impact it can have in light of Native Americans.

    In California, for example, we have this great confusion about Indian tribes running gambl enterprises that are otherwise contrary to California law, and soliciting Government monopoly protections for that gaming by weighing in heavily in the State political process and then turning around and claiming exemption from California's campaign finance laws because they're a ''sovereign, independent nation'' and ought not be subject to those laws. It creates a distorting factor in our politics. That's but one minor example.

    The notion that the millions of illegal immigrants in California and Texas and elsewhere on our border are not going to have that same kind of distorting influence if we recognize citizenship here I think, to say that that doesn't give us any concrete arms, I think is to completely misunderstand the nature of the confusion that arises over citizenship questions.
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    Mr. HOSTETTLER. Thank you.

    The Chair recognizes the Ranking Member, Ms. Jackson Lee, for 5 minutes for questions.

    Ms. JACKSON LEE. Thank you very much. Mr. Chairman, I'm contemplating what my questions will be to try to bring some sort of order to this line of reasoning.

    Let me first of all say that—not that it bears a great weight, but I happen to know Juan Hernandez and Tony Garza, two individuals that you cited, Mr. Renshon. Is that correct?

    Mr. RENSHON. I only cited the first, not the second.

    Ms. JACKSON LEE. In the article I'm looking at, I see Tony Garza as well.

    Mr. RENSHON. I thought you meant in my talk.

    Ms. JACKSON LEE. I'm reading your article and since I know both of them, bring it to your attention.

    Tony Garza happens to be the Ambassador from the United States to Mexico. I think both Juan Hernandez and Mr. Garza are products of U.S. schools.
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    But what I wanted to raise is, can I get from Mr. Renshon and Mr. Fonte any concrete problems associated with dual citizenship beyond the sort of nebulous generic ''I don't like immigrants'' issue dealing with allegiance and assimilation. I'm sure you want to comment on sort of the adjectives that I've utilized, but Mr. Spiro, if you would then expand on your points about the whole issue of assimilation, the whole issue of a new immigrant who wants to just connect to the home country, the ancestral home, and the value.

    I don't know if—I don't want to misspeak, but I don't believe that President Karzai of Afghanistan has a U.S. citizenship, but I believe he has a dual citizenship, and I believe that he was trained in Western universities; it might have been European universities. But how beneficial has it been for Chairman Karzai, now President Karzai of Afghanistan—I happen to chair the Afghan caucus—to have that kind of connectedness, if you will, to Western values?

    Maybe I should say democratic principles because I wouldn't want to taint his leadership, and he is certainly independent. But he brings a whole lot to the leadership of Afghanistan with the understanding that he has the multiple cultures, so if you can expand on that, if I can ask the two gentlemen to give me some sense.

    As I say that to you, let me say this: Someone might comment—and I didn't hear your first comment; I'm putting out fires—but I'm not sure if you responded to the issue of undocumented parents and citizenship children. If you did, would you repeat it for me when you answer? It will give me some sense of your perspective on that.

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    I'll just say to you gentlemen on this hearing, I start out by saying that I appreciate regular order, but what I would say to you is that I'm lacking in understanding how this makes us secure.

    Is this just we want to turn the clock back? We are a nation that has immigrants here and welcomes immigrants in a legal process, so I don't know how you can turn the clock back. I see nothing in your conversation that provides any sense of security or the elimination of terrorists, since Americans can be terrorists who are born of American parents.

    I yield to both of you for the answer originally about what's the crisis.

    Mr. RENSHON. First, may I start by taking exception to your characterization of not liking immigrants. At least for me, nothing could be further from the truth.

    Ms. JACKSON LEE. You have the right. It's a free country. Your presentation gives me the impression.

    Mr. RENSHON. It's an erroneous impression.

    Secondly, it seems to me—let me get to the question of identification. Psychologically, an identification with a country, a national identification, allows people to weather the storms that they go through; it allows support for the country during hard times. It's in a sense like an emotional bank account which isn't related to a quid pro quo of what can you do for me lately. No government and especially no democratic government can survive solely on what it gives with regard to goodies.
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    With regard to the concrete form of identification, there are studies that are now coming out of the attachments of immigrants; there are studies done of immigrant children, the so-called 1.5 generation, second generations, and among those questions the question is asked, how they identify. Do they identify as an American, do they identify as a hyphenated American, do they identify as a Mexican or an El Salvadoran or do they identify as Hispanic?

    Traditionally what has happened is that over time people have left behind their identification with their country of origin and adopted a hyphenated American identity. And it has gone so far in some cases—I am referring now to a study by Richard Alba, who's at the State University of New York, who studied European ethnic Americans; and what he found is that essentially, for all practical purposes, there's a European identify which is essentially American. Yes, they're Italian and they eat Italian food, and yes, they're Polish and they may have a sausage, but primarily they identify almost 100 percent or 98 percent as Americans. I don't think the same thing can be said empirically of the new generation of Americans that are coming in from abroad.

    A very large percentage of the children of immigrants, the 1.5 generation, and even the second generation identify with a title which does not have ''American'' in it. And that to me—are they running out and throwing bombs? Well, no, that is not the issue that I am dealing with. I am suggesting that over time the lack of attachment to our national culture will be a severe strain on our civic process and on our civic identity.

    Mr. HOSTETTLER. Without objection, Dr. Fonte, you and Mr. Spiro will be able to respond to questions from the Ranking Member.
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    Ms. JACKSON LEE. I thank the gentleman for his indulgence.

    Mr. FONTE. On the first, I want to reiterate what Stan said. I think the whole purpose of what we are saying is precisely because we are a Nation of immigrants, it was precisely because we do want to assimilate immigrants patriotically into the American system that we favor continuing the American tradition. My father was an immigrant from Sicily and so I am very fond of immigrants. And it is because we are a Nation of immigrants that we want to continue this great tradition of patriotic assimilation. It is precisely because we are a multiethnic, multi-subcultural Nation of people from all over the world that loyalty to the United States should be paramount and that people shouldn't maintain loyalty to another country. If we were purely an ethnic Nation like some other nations it would not make that much difference, but it is because we are a multiethnic Nation specifically that we want to continue our great tradition.

    This is the position of the American Legion, the position of patriotic assimilation, that people who come here should be loyal to the United States and not loyal to any other nations.

    What problems arise is, as Professor Renshon said, if you have large numbers of people in the country whose primary loyalty is not to the United States, that is a problem for any democratic country.

    I did want to mention that my comment on complete and unwavering loyalty was a quote from Felix Frankfurter and I will stick with Felix Frankfurter and I will stick with the policies of Franklin D. Roosevelt on this anytime.
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    Thank you.

    Mr. SPIRO. I still did not hear an answer where there were concrete problems with dual citizenship. I think there is an assumption, particularly in Stan Renshon's remarks, that individuals' attachments are a zero sum quantity. I think he just used the term ''emotional bank account'' as if there were some set limit to our emotional attachments and that attachments to one form of association necessarily detract from attachments to another form.

    Now there are contexts involving conflicting belief systems where that is a problem. It is hard to be a Muslim and a Jew at the same time, and that used to be the case I believe with national attachments. In a world where one had the United States alone as a system of constitutional democracy in a world of monarchists and other non-democratic systems that was a problem. So that when John Fonte's grandfather came here it would have been difficult to remain loyal to both—I guess it was the Kingdom of Sicily at time—

    Mr. FONTE. No, the Kingdom of Italy.

    Mr. SPIRO. Italy and the United States at the same time. Today, of course, democracy is pervasive so that problem of conflicting belief systems and conflicting systems of politics is no longer a problem, so that one can be a loyal Italian and a loyal American at the same time.

    Briefly on Ms. Jackson Lee's question about the example of Mr. Karzai in Afghanistan; American citizens have been crucial in facilitating transitions to democracies in new democratic countries. So that as Dr. Renshon includes in his paper, there are a long list of Americans who played critical roles in transition to democracy in Eastern Europe in high government positions, including as President of Lithuania. And even Dr. Renshon I believe has no objection to that activity on the part of dual American citizens. So that is a very concrete example of how dual citizenship has served our national interest in other systems.
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    Mr. HOSTETTLER. I thank the gentleman. The Chair now recognizes the gentleman from Texas.

    Mr. SMITH. Thank you, Mr. Chairman. Dr. Eastman, let me address my first series of questions to you.

    I gather from your comments that you feel getting to what you or I might consider to be the correct interpretation of the citizenship clause of the 14th amendment, that that can be done by Federal statute and does not necessarily require a constitutional amendment. Is that accurate?

    Mr. EASTMAN. It is, Representative Smith.

    Mr. SMITH. Of course, we know that a statute might be challenged but at least that holds some promise, I would guess.

    Mr. EASTMAN. In fact, I don't even think you need a new statute. The existing one tracks the language of the 14th amendment precisely. That person is born in the United States and subject to the jurisdiction thereof. You could have a resolution describing what you understand that to mean.

    Mr. SMITH. That was my next question. If you don't need a statute what are the alternatives? One would be a resolution. That raises other questions that I hadn't thought about until today. Do you think the prospect of the correct interpretation would be enhanced or could be enhanced by an Executive Order?
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    Mr. EASTMAN. Yes, I do. And in fact I think it would have been preferable in the Hamdi case itself had the Solicitor General not waited until the Supreme Court to challenge or to use the language of presumed citizen but in fact had addressed that question right back at the initial transfer from Guantanamo to Norfolk. The mere fact that Hamdi was born in Louisiana, even under the strict holding of Won Kim Ark doesn't mean he is a citizen. His parents were not here as permanent residents and that would be enough to distinguish that case.

    Mr. SMITH. So we have Executive Order, we have Solicitor General opinion perhaps. Statute, resolution, we have other alternatives to underline what Congress' intent is, which we all know is probably determinative in this case.

    My next question goes to what do you think the practical impact of the current interpretation of the 14th amendment is? Do you think that increases illegal immigration? Does that act as a magnet for some individuals to come into the country? As I believe, but I wanted to hear your opinion.

    Mr. EASTMAN. I believe it is. I think there are many incentives right now that we provide for illegal immigration and this is a very important one. It not only provides this grant of citizenship to the first generation born here, but as Chairman Hostettler pointed out in his opening remarks, those citizens can turn around and have priority status for bringing in their parents and other relatives as citizens. It is a shortcut around the naturalization process that Congress has set up under its plenary power.

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    Mr. SMITH. That is what I think as well. As I pointed out, over half the births in Los Angeles now are to illegal alien parents, that says something itself, I would suspect. Another question is why do you think there is a trend around the world toward requiring at least one parent to be a citizen or legal immigrant in almost any civilized country before the child would be automatically deemed to be a citizen?

    Mr. EASTMAN. I think, you know, at points during the last century we adopted this idealistic view that war was over, that we had had a couple of wars to end all wars. It never seemed to work. But recently the spate of activity and the conflicts, terrorism and what have you, have demonstrated the real serious threat that comes from not keeping control over citizenship. A number of nations in Europe, for example, are dealing with this question with mass migrations and the notion that you cannot control that as a naturalization policy because people have automatic unilateral claims of citizenship undermines the notion of consent that is at the heart of any political community. And as those political communities start to fray at the edges with these unilateral rather than bilateral claims it is going to have an impact.

    Mr. SMITH. I agree with you. Thank you, Dr. Eastman. Let me say that two of our witnesses a few minutes ago referred directly or alluded to the relatively well-known quote by Teddy Roosevelt along the lines that we shouldn't be considering ourselves hyphenated Americans, we should all be considering ourselves as Americans. I hope we get to the point in our country that we do consider ourselves as Americans first, not hyphenated Americans first. I think that will do a lot for our national unity and our sense of oneness that we look for in our country and our society today. I hope we get there some day.

    Thank you, Mr. Chairman and thank you all for your participation today.
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    Mr. HOSTETTLER. I thank the gentleman from Texas. At this point I would like to go to a second round of questions, if I have the indulgence of the members of the panel. Is everyone available for another 10 to 15 minutes? Thank you.

    Dr. Fonte, is it possible for Congress to take action short of revoking citizenship to curtail dual allegiance in situations where dual allegiance is not in our national interest?

    Mr. FONTE. Absolutely. In fact in the Perez case, there is a famous dissent by Earl Warren who was on the other side who supported the idea that Congress could not voluntary take—did not have the power to take someone's citizenship away but he did say that Congress had the power to enact legislation if it deemed something particularly harmful. That is why it is in the power of the Congress.

    In fact Congressman Hayworth has introduced a bill today that would penalize—the enforcement first legislation—it would penalize people who perform these certain acts that used to be expatriating, such as voting in a foreign election, serving in a foreign army, and so on. This is totally within the plenary power of Congress to do this, to pass this type of legislation.

    I also might want to point out that in the legislation, exemptions could be made for national security reasons. So if there is somebody who is the President of Lithuania and is an American citizen and for some particular reason the State Department wants this, there is the exemption within the Hayworth legislation for this. It is entirely within the power of Congress to act.
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    I would add if Congress does not act, then dual citizenship and dual allegiance are simply going to multiply. So it is almost, at this point particularly when we are discussing the McCain-Kennedy and various immigration bills, it is important for Congress to act now at this particular time, or there will be a major increase in dual allegiance if nothing is done.

    Mr. HOSTETTLER. So because we make no penalties, even if we deem that it is not in our national interest to allow these benefits to inure, that is a big reason why the explosion has taken place potentially, not necessarily as a result of a new wave of a new line of thinking but simply because it is easy to do and there is no penalty?

    Mr. FONTE. Partly I think that is correct, if we make the rules very clear. We don't want you voting in a foreign election, we don't want you serving in a foreign army and there are penalties, people will stop doing it and dual allegiance will become a moot point and a lot of problems that we have will be eliminated.

    People were saying what is the specific problem? Well, we do have the case of Manuel de la Cruz, who was an American citizen, dual citizen. He was elected to the legislature of Zacatecas on the PRD Party. They have a picture of Lenin here. They are advocating an anti-American line. He is working against American interests. There are others doing the same thing.

    That is to answer a previous question of what is some specific harm, but the important thing is that now is the time for Congress to do something about this as we are having this immigration debate. We are going to have millions of new citizens and should they be as always in the past patriotically assimilated and only be loyal to the United States, or should they have divided loyalties? That is something that Congress will have to decide this year.
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    Mr. HOSTETTLER. Thank you. Dr. Renshon, you bring up a lot of interesting points regarding the psychology of the issue, and something I thought of while you were speaking was the notion that in the past, while American citizens may have disagreed with their country, their government, on a particular issue, it was not such that they would actually be in favor of the position of another country or take that position or work toward the goals and ends or the desires of a foreign state, but they would simply disagree.

    But if what you are saying is true about the psychology of the situation, we may be seeing a phenomenon take place today where in fact it is that if we disagree with the United States, and we have dual nationality, that we in fact can choose what policy, what philosophy, and actually work against the will, the national interests of the United States in favor of the national interests of a foreign power. Is that not true?

    Mr. RENSHON. I think that is fair to say. Look, it is a natural inclination when you have attachments to somebody, to begin their point of view, to give their point of view a little bit more on the scale and so forth. So it is entirely psychologically natural. It is natural for people coming from other countries to begin their process here by doing that.

    I am talking about the socialization over generations of multi-millions. I estimate there are at least 30 to 40 million dual citizens in the United States, people who can be dual citizens, and it is rising. And so we have never had a situation where we have had in absolute numbers so many people with multiple attachments.

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    If I may just correct Professor Spiro, my friend and debating partner in many instances, I don't think it is a zero sum game. I don't think you are 100 percent American or not an American. I think that over time people are oriented toward the United States as a nationality and it is just a fact of psychological life that people have attachments elsewhere, especially when they are primary. It is not like being a trade-off between being a professor and a father, these are fundamental orientations. And I am not a big believer just in the fact that because democracy is spreading we're therefore in good shape. Consider Russia as a democracy. France has a democracy. Would we like our citizens to be more French? I don't know. Personally I don't think that is true.

    So it is a real problem. May I take a moment and speak to another issue that is related?

    Mr. HOSTETTLER. Without objection, for an additional minute if you make it brief.

    Mr. RENSHON. I will. We're also in a situation where schools are not really socializing students to become American. The level of information about what America stands for, what it is like, its history is by every measure abysmal. And the consequence of that is that when you ask of citizens that they take care of the country, that they have a balanced appreciation of the country, in order to have appreciation you have to have knowledge of both the virtues and the faults. That is how you have appreciation. If you don't have any knowledge of the values and you only have some idea of their faults, there is no reservoir to fall back on.

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    And so we are bringing people in through our system who are not being prepared emotionally to have the kind of attachment we might like to see. And I am all for the way—by the way, I am all for dual citizenship and having people who are dual citizens go be the president of a country. But what I object to is they are dual citizens and exercise their citizen responsibilities in two places. They come here and are trained in America and go to Lithuania or Bosnia, fine. That is perfectly fine with me. What I don't want are tens of thousands or hundreds of thousands of people from country X doing both at the same time.

    Thank you.

    Mr. HOSTETTLER. Thank you. At this point I recognize the gentlewoman from Texas for purposes of questions.

    Ms. JACKSON LEE. Professor Spiro, let's do a little bit of sparring here and take on some valid issues that have been raised. Frankly, let me say to Dr. Fonte, you have my 100 percent enthusiastic support about Americans knowing about America, knowing about our history, understanding our values. And I believe our school curriculums fall short in the primary years and secondary years in the knowledge of American history. That is shame on us. I would rather be listening to a hearing that, though it might be out of our jurisdiction, to reorder the entire curriculum to make people both invested in our history and committed to our history and very well versed in it.

    But let's respond to again my singular question. I am still grappling with the concreteness of emotionalism and loyalty. So let's look at, if I might—I think this is Justice Felix Frankfurter's words: No man should be permitted deliberately to place himself in a position where his services may be claimed by more than one government and his allegiance is due to more than one.
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    In the backdrop obviously this was the beginnings of the early migration, the movement of a number of European countries—citizens over to the United States and maybe there was concreteness then. We were still a young country if you will. It was around, if my history is correct, emerging World War I and other conflicts. But let's just try to focus what we're trying to get at.

    I am looking at a legislation that was dropped just today and we have got penalties of up to $10,000, imprisonment for 1 year for individuals who may vote in the election of a foreign state of which persons were previously a subject of, running for elected office in a foreign state in which a person was previously a subject of. I guess we would haul out of office the President of Lithuania, as you have mentioned, and put that person in jail.

    Give me a concrete response to their lack of concreteness without any disrespect to the arguments that they have made. I am still grappling with what is the issue.

    And I guess let me finish on this point. I was troubled by the fact that in testimony that was rendered here, I believe Mr. Renshon's response—one of the responses—let me try to be clear—that said, well, we don't have a problem with those who are of the European vintage, except for the comment about our friends in France, but it is the new immigrants maybe from India, maybe from Mexico, Latin American countries, maybe from Africa. I take offense to that, and the reason why I take offense from that is because I have buried soldiers who are of that heritage who would knock down others to go and fight for their country. I think we could take a poll or census of soldiers in Iraq and Afghanistan and we would find high numbers of individuals who may not be dual citizenship but heritages come from those particular countries. So I take offense with the suggestion.
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    Help me out with a concrete response to what I believe has not been concrete. Is there a danger? What danger are we facing? Because let's fix the danger. And is it warranted to have people placed in jail for some of the offenses that I just said to you in the legislation that was dropped today dealing with dual citizenship?

    Mr. SPIRO. I think you are absolutely correct to put the statements of somebody like Felix Frankfurter into historical context. So that at the time that Frankfurter was writing his opinion in the Perez case, which John Fonte referred to, that may have been an appropriate perspective on dual citizenship. At that time it may have posed a threat to the national interests of the United States. It may have been a question of conflicting belief systems and it may have posed the danger of embroiling the United States in international controversies to allow American citizens to participate politically in other countries.

    That is no longer the case today. In Dr. Fonte's written statement there are these fascinating parallels between the position of the Mexican government to its communities in the United States today and the position of the Italian government to its community in the 1930's in America. Interesting parallels but those are completely different worlds. We ended up in a war with Italy in a matter of years and that obviously is not going to happen with Mexico today.

    I think it would be a terrible idea to impose criminal penalties on the exercise of dual citizenship and I think John is a little too sanguine to believe that everybody would lie down and obey the law. You would end up with prosecutions which I think would show the foolhardiness of such legislation.

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    So, again I'm not sure what the problem is. At the same time that I see real benefits from an individual perspective and also from a national perspective——

    Ms. JACKSON LEE. If I might, do you see any danger? Do you see us being set up, if you will, for the numbers of terrorists roaming through with dual citizenship? Obviously, you are not an expert on terrorism, but I welcome your thoughts on this.

    Mr. SPIRO. It is absolutely not a security issue, and anybody who is thinking about undertaking a terrorist act in this country would be foolish to advertise the alternate allegiance. There is not a single prominent historical case of a dual citizen undertaking acts of espionage or terrorism against the United States.

    One last point, Dr. Renshon notes there may be as many as 40 million dual citizens in the United States today. By way of concrete problems we have heard maybe three or four individual cases out of those 40 million that might arguably pose some issue of loyalty or allegiance.

    Ms. JACKSON LEE. Thank you.

    Mr. HOSTETTLER. I thank the gentlewoman. At this time we will move to a third round of questions if you have that time available to you. There are a couple of us and this is a very interesting subject. I would like to at this point recognize Dr. Fonte, who is pregnant with thought with regard to the last response.

    Mr. FONTE. Yes. I was—Peter was saying the situation was different in 1958 with Frankfurter and that we don't have those type of conflicts today. With the end of the Cold War we don't have those type of conflicts. Well, remember 9/11. Today we have more conflicts than ever. Questions of loyalty, conflicts not only between States but within States in the post-9/11 world. Questions of loyalty, of allegiance, of what one believes are absolutely paramount, and we have more conflict than we have ever had. So we have more potential for conflicts and questions of dual allegiance than ever in the past.
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    And I want to reiterate, the legislation we're discussing, which is the J.D. Hayworth legislation, specifically says that exemptions can be made if this serves the interests—the national security interests of the United States are served if someone takes a seat in the Mexican government or the government in Nigeria or the government in Finland or any place else. If it serves the national security interests of the United States, exemptions could be made. So this is not simply rounding up President Karzai and throwing him in jail. But those are the two main points that I wanted to answer.

    Mr. HOSTETTLER. Thank you. Dr. Fonte, once again it is often said that we are a Nation of immigrants. This being said, how does dual citizenship negatively impact our unique Nation, one that is built on political loyalty rather than on race, ethnicity, or creed? And to follow on that, do you have information that, in fact, dual citizens'—by and large the preponderance of their political activity in other countries are in the national interests of the United States or is it in the national interests of the foreign country? Is their political activity in the United States more to the benefit of the United States or foreign country?

    Mr. FONTE. Well, the second question first. I don't know if we have any concrete data. That would be extremely interesting. It would cost some money, but a survey of the views of, say, Mexican dual citizens participating in governments, in Mexican politics and people in Mexico. Because many of the participants in California are members of the PRD, which is the anti-American party. Others are also of course in President Fox's pro-American party. There are differences. I don't know of any survey data but it is clear there are people on both sides of the fence. But in either case the emphasis is the attachment and the time and the emotion is toward the foreign state and not toward the United States.
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    And that is where your first question was as a Nation of immigrants. I think we are a Nation of immigrants, but we are a Nation of assimilated immigrants. We're not really a Nation of immigrants; we're a Nation of assimilated immigrants with loyalty to the United States.

    Now if we were all of one ethnic group, say all of Anglo descent, then everybody would know who an American was. If your were blond, blue eyes, you're an Anglo, you're an American. That is not the case. To be an American is to be loyal to the American political constitutional order. So we are a civic Nation, a Nation that is held together by civic bonds, not by ethnic bonds.

    As I mentioned in my written material, we had a war about this in 1812 with the British, who believed once an Englishman always an Englishman. They had an ethnic basis for citizenship. Germany had an ethnic basis for citizenship. You were a member of Das Folk, you were a member of the German people. You were a German citizen. Even if you were living in Argentina for 200 years and only spoke Spanish, spoke no German, had no connection with German culture, could read not a word of German, you would still be considered under the old German immigration system a citizen of Germany. That was a pure ethnic Nation.

    I say in my paper, I am worried that the Mexican government is adopting the ethnic view, once a Mexican always a Mexican. To the seventh generation is what Hernandez said, and Mussolini also said to the seventh generation. That was the reference of the comparison.

    This is ethnic citizenship. People saying you are of this race and you have to stay this race and you have to stay with our country. That is not the way we do things in America. If we accept dual allegiance, we will be heading in that direction.
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    Mr. HOSTETTLER. The Chair recognizes the gentlewoman from Texas for purposes of questions.

    Ms. JACKSON LEE. Thank you very much. I was just meeting with the national PTA Association who were telling me that they were very actively engaged in accepting children that were evacuated from Louisiana, Mississippi, and Alabama. Professor Spiro, you recall there was a debate about refugees versus evacuees, and it brings to mind that labeling people sometimes doesn't generate positive discussion.

    So I want to raise with Dr. Fonte, I want to bring attention to you, again I bring up the danger and the concreteness and maybe I missed it.

    Does the presentation that both—the three of you make also include denying the citizenship of children born of undocumented aliens, individuals here in this country? Is that correct, Dr. Renshon?

    Mr. RENSHON. I haven't addressed that at all.

    Mr. EASTMAN. I have.

    Ms. JACKSON LEE. Thank you, Dr. Eastman. Then let me go to you for concreteness. Many of us who come from a certain region are probably more apt to be interfacing with that population than not, and what I have seen is a very strong attempt of assimilation that has constantly been the history of this country, either by precedent and/or subsequently by statute, that if you are born in the United States you are a citizen. As I indicated in my opening remarks, for a long period of time we had nothing. So give me succinctly the danger of stigmatizing individuals who are born under the flag of the United States of America.
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    Now, let me acknowledge that we have, again as I said, a broken immigration system which may lead people to believe that there is a purposeful effort of making sure children are born here in the United States. But putting that aside, what is the danger of giving to citizens their birthright of being born on this soil?

    And Professor Spiro, tell me how do you respond to Dr. Eastman once he makes this comment? I'm really trying to find the legislative response, if necessary, to the danger or the undermining of this country. I think that is why we're here, what are we here for. There must be some danger. There must be some threat to the existence of America. Dr. Eastman, what is it?

    Mr. EASTMAN. Representative Jackson Lee, I am happy to address that. I think there are two levels of threat, one very specific but one more global and principled. And the notion of birthright citizenship, by being born on the soil I become a subject of the country in which I am born, is a throwback to an old feudal order, that we are the king's subjects or we are the government's subjects, and that was repudiated in our own Declaration of Independence. We set up governments based on consent. It is a bilateral consent. You can't come here and claim citizenship without us agreeing to it, nor can we make you citizens if you don't want it. It is bilateral consent. This notion of consent that we have in the political regime is critical to our understanding of our regime of being one of civic duty, rights and obligations and not one of ethnic definition. And that, I think, is rather critical.

    What you are talking about is an entire class of people that have not been involved in that consent relationship, but have nevertheless through their parents come here and claimed something that we have not agreed to. That is kind of—and over time that radical change in our understanding of our own political system cannot but help to undermine the strength of that system.
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    More specifically, in southern California we have a huge problem, and I suspect you have it in Texas as well, people who have dual nationality committing crimes, preying on illegal immigrant communities, which is a terrible thing, and then fleeing the jurisdiction to Mexico in order to avoid prosecution. And because they are Mexican citizens they will not be extradited here. It creates an opportunity to commit heinous crimes, cop killing crimes or preying on our immigrant communities, crimes with impunity, and it is made possible because of this notion of dual citizenship. I think that is a very particularized harm, if that is what you are looking for.

    Ms. JACKSON LEE. Professor Spiro, can you help me with that, please?

    Mr. SPIRO. Three brief points on the question of birthright citizenship. One is that although Professor Eastman is correct that the Supreme Court has never ruled directly on the subject, I think it is quite clear that the rule of birthright citizenship is constitutionally entrenched. I think a good piece of evidence of this is the Hamdi case itself, that notwithstanding Hamdi's tenuous connection to the United States as an on-the-ground matter, no one in the executive branch of the Government, nor on the Supreme Court—notwithstanding Professor Eastman's very able brief on the subject—got anywhere close to suggesting that he should be deprived of his citizenship as somebody born in the United States. So I think that it is quite clear that as a matter of constitutional practice it is entrenched as a rule.

    The second point, and this is forgotten in some of the discussion, is that many of these undocumented parents are very real members of our community. They are not—the stereotype here is of course is of the undocumented alien mother who crosses the border simply to give birth to a child here to take advantage of the birthright citizenship rule. In fact, many of these undocumented mothers have been here for many years and are part of the community and their children will be part of the community. And if we abandon the rule of birthright citizenship, one is talking about establishing an intergenerational caste, a permanently dispossessed class of individuals, which is really antithetical to our citizenship norm of equality.
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    And finally this is maybe a point that also gets lost in the discussion. If we move away from the birthright citizenship rule, we're looking at an administrative disaster. Under the current rule it is quite simple to determine if somebody is a citizen of the United States. All you have to show is that the person was born in the United States. Imagine a regime in which every individual has to show the immigration status of their parents by way of establishing their own right to citizenship. Given that our immigration enforcement authorities are already terribly overburdened, do we want to add yet another task to their list of administrative responsibilities?

    Ms. JACKSON LEE. Can I just—Mr. Chairman, may I just—would you follow up on—I don't think I was fully understanding Dr. Eastman, though I recognize that California has its own unique issues. But of preying on—I don't know whether you were saying Hispanics, Latins, Mexicans preying on people and running back to Mexico. I mean if it is an isolated local criminal problem that I would join him in saying that we need to give more resources to local police and law enforcement to be able to arrest the criminals. Is he talking about that is what we expect out of undocumented parents' children, that they would be criminals and preying on people? Is that the broad thrust of what is being said here today?

    Mr. SPIRO. I mean, I have to admit I'm not sure I took the point either that either dual citizenship or birthright citizenship—it would seem there is a tenuous connection between that and any problems of crime and problems of crime should be handled as problems of crime are handled, which is through greater resources devoted to law enforcement and not through citizenship rules.

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    Ms. JACKSON LEE. Mr. Chairman, I don't want to put this in the record, but let me conclude by saying we are not a Committee of jurisdiction dealing with treaties, but I would think that—and I find difficulty with some of Mexico's responses and other countries' responses when they harbor criminals and I welcome some review of that issue as to how do we get individuals extradited back who have perpetrated crimes. I think our citizens in this United States are owed that kind of respect and dignity.

    But I don't think that the labeling ties in. And the reason why I say so, unfortunately we had a statement being made this morning by Bill Bennett, not particularly related, but I'm just saying how we can get out of sorts with relating different comments. And I don't know what kind of statement he was trying to make, but he said: If you want to reduce crime, you could abort every black baby in this country and the crime rate would go down.

    You know, these kinds of statements and statements that suggest that these people are involved in crime are not constructive. But it is constructive, Dr. Eastman, for me to be able to work with you and talk about enforcing the extradition laws to make sure that we don't have that kind of abuse. But I don't see the relationship of this question of dual citizenship and undocumented children.

    So with that let me yield back and hope that we will find some other ways of dealing with this question. Thank you.

    Mr. HOSTETTLER. Thank the gentlewoman. The Chair wishes to thank members of the panel, witnesses, for being here, for adding to this very important discussion. And I remind the Members of the Committee that all Members will have 5 legislative days to make additions to the record.
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    At this time, the business before the Subcommittee being completed we're adjourned.

    [Whereupon, at 3:40 p.m., the Subcommittee was adjourned.]


Material Submitted for the Hearing Record


    The purpose of this hearing is to examine ''birthright citizenship'' and ''dual citizenship.'' The framers of the Constitution did not define ''citizenship.'' The acquisition of United States citizenship by birth and by naturalization depended on state laws until the enactment of the Naturalization Act of 1790. The Naturalization Act of 1790 established a definition for ''citizenship by naturalization,'' but it did not define ''citizenship by birth.''

    Prior to the Civil Rights Act of 1866 and the Fourteenth Amendment, African-Americans were not considered citizens of the United States. In the case of Dred Scott v. Sandford, 60 U.S. 393 (1856), the United States Supreme Court held that African-Americans could not be citizens of the United States, even if they were free. According to the Supreme Court, African-Americans were descended from persons brought to the United States as slaves, and the terms of the Constitution demonstrated that slaves were not considered a class of persons included in the political community as citizens.
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    The Civil Rights Act of 1866 declared that ''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.'' The Fourteenth Amendment declared that ''[a]ll 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.''

    In United States v. Wong Kim Ark, 169 U.S. 649 (1898), the Supreme Court held that all persons born in the United States and subject to its jurisdiction are citizens. The children of diplomats and the children of hostile occupation forces were excluded because their parents are not subject to the jurisdiction of the United States. Wong Kim Ark did not exclude the children of illegal aliens, and the basic holding of this decision has never been reversed.

    In recent Congresses, there have been various proposals aimed at excluding the children of illegal aliens and nonimmigrant aliens from automatic birthright citizenship. These proposals have taken the form of amendments to the Citizenship Clause of the Fourteenth Amendment or to the birthright provisions of the Immigration and Nationality Act (INA).

    Other proposals would limit birthright citizenship in a way that its proponents believe would not necessitate a constitutional amendment. This approach would statutorily define who is born ''subject to the jurisdiction'' of the United States under the Citizenship Clause notwithstanding the holdings in United States v. Wong Kim Ark, supra.

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    I am opposed to restrictions on birthright citizenship. Among other things, these proposals would, for the first time since Dred Scott, create a class of persons who are born in American but are not citizens.

    Another subject of this hearing is ''dual citizenship.'' Dual citizenship can arise in several ways. A person may acquire dual citizenship by being born in the U.S., which recognizes jus soli, to alien parents whose country recognizes jus sanguinis, or by being born abroad to U.S. parents in a country that practices jus soli. A U.S. citizen may become a naturalized citizen of a nation that does not require renunciation of other allegiances, or a naturalized U.S. citizen may still retain citizenship in a country that does not recognize renunciation of its citizenship. In deference to the sovereignty of that other nation, the U.S. generally recognizes the dual citizenship.

    Some people claim that dual citizenship is a problem because it results in divided loyalties, particularly in the case of a military conflict. It is difficult, however, to assess something as personal as an individual's loyalties. Other people focus on conflicts regarding jurisdictional issues, such as diplomatic protection, and legal duties borne by individuals, such as military service. These may be serious problems in some situations, but they can be managed through such means as bilateral treaties. I am not convinced that there is a need to restrict dual citizenship. Thank you.



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    Part of America's beauty comes from her unity in the midst of diversity. We have been called a Nation of immigrants, but behind this statement is the knowledge that we one-time immigrants have become Americans. The Americanization process is central to creating the unity that is so important as we wage the War on Terrorism.

    As Tamar Jacoby, Senior Fellow at the Manhattan Institute, states, ''The stakes could hardly be higher. One in nine Americans is an immigrant. Nearly one-fifth of U.S. residents speak a language other than English at home. The number of foreign-born Americans—33 million and growing—now exceeds the entire population of Canada. And in the wake of 9/11, with the nation as a whole thinking harder than ever before about what it means to be American, it couldn't be more important to help these newcomers find a way to fit in.''
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    To successfully assimilate the millions of immigrants in the United States, we must ensure their allegiance to our Founding documents and principles and their desire to become Americans. For over 200 years, we have used the Oath of Allegiance and Renunciation as a gateway to American citizenship.

    The Oath of Renunciation and Allegiance is taken by all immigrants as they become citizens, and it is an important pronouncement of fidelity to America and her laws. In taking the Oath, immigrants are reminded of the seriousness of becoming an American citizen and the responsibilities that come with it.

    It is problematic that this important pronouncement is not specified by law. The Oath is merely a part of Federal regulations and can be changed at the whim of Government bureaucracy. In fact, on September 17, 2003, the Department of Homeland Security's Office of Citizenship and Immigration Services (CIS) proposed changing the Oath's language. The proposed changes would have transformed an absolute commitment into a conditional statement, thereby weakening the Oath and the meaning of American citizenship.

    Because of public outcry, the proposed changes were never implemented, but we should take steps to ensure that future changes could only be made by Americans' elected officials.

    During the last Congress, I introduced a bill to place the Oath into law so that only Congress would have the authority to change its language. Congress thought it important enough to adopt a similar amendment in the FY05 DHS Appropriations bill that would restrict any funds in the bill from being used to make changes to the Oath. This amendment will expire October 1, 2005, as we begin the new Fiscal Year.
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    As a result, it is more important than ever to take renewed steps to protect the Oath. This Congress, I have introduced two bills, H.R. 1804 and H.R. 2513, that would do just that. H.R. 1804 would simply place the Oath in current law, giving it the same protections as the Pledge of Allegiance and the National Anthem. H.R. 2513 would do this, as well as make amendments to the Oath, as proposed by CIS, to clarify the currently awkward language while retaining the historical significance and the five essential components of the Oath. The new language has been approved by various historians and groups, including the Citizenship Roundtable, an alliance of the American Legion and the Hudson Institute and former Attorney General, Edwin Meese at The Heritage Foundation.

    Establishing the Oath of Allegiance as the law of the land would remind all Americans-recent immigrants and life-long citizens alike—that pursuing the American dream requires a full-time commitment to citizenship. Our new citizens should not become what Thomas Paine once called the ''summer soldier and the sunshine patriot'' that shrank from the service of his country in times of crisis. The process of assimilation begins with a clear understanding of what it means to be an American, and no immigration reform can be complete without ensuring that our immigrants are committed to becoming Americans.



    Mr. Chairman, thank you for holding this important hearing to address the critical issue of birthright citizenship. I am the original sponsor of H.R. 698, the ''Citizenship Reform Act'' which aims to do away with birthright citizenship by amending the Immigration and Nationality Act. Specifically my legislation would deny citizenship at birth to children born in the United States of parents who are not citizens or permanent resident aliens. The bill grants citizenship to a child born out of wedlock in the United States only if the mother is a citizen or national of the United States or an alien who is lawfully admitted for permanent residence and maintains her residence in the United States. To date my bill has 45 cosponsors and has received widespread support from those groups serious about reforming our nation's immigration laws.
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    As you know, any child born in the United States is granted automatic American citizenship regardless of whether or not the baby's parents are legal residents. This is a supposed ''right'' granted by the Fourteenth Amendment's citizenship clause which states that ''all persons born or naturalized in the United States and subject to the jurisdiction thereof are citizens of the United States.'' The original intent of this clause was to guarantee citizenship to all freed slaves but has since become an attractive incentive for illegal immigrants.

    Some have contended my legislation is insufficient to address the birthright issue, as a restriction on citizenship would require a Constitutional amendment. I do not agree with this assessment. As Dr. John Eastman and numerous other outstanding legal minds have contended, current interpretation of the Fourteenth Amendment is not only misguided but also has profound consequences for the democratic character of our federal government. While the Supreme Court has addressed the issue in passing, it has never squarely dealt with the question of birthright citizenship as understood within the bounds of the Fourteenth Amendment. In the very least, my legislation would force such a decision—a decision which I firmly believe would be found in our favor.

    Beyond the legal arguments, it is important to understand the financial consequences of our birthright citizenship policies. An estimated 300,000 babies are born to illegal immigrants in this country each year. As we all know, these children are automatically granted citizenship. The cost of caring for these children is extremely high. For labor and delivery alone, excluding c-section deliveries and any pre- or post-natal care, the cost is between $1,500 and $1,800 per child. Under current law the government is often left no choice but to cover these costs. Despite the legal status of the baby's parents, the baby is entitled to all benefits that U.S. citizenship entails, including federal welfare benefits and the right to vote. When that child turns 21, he or she will be able to sponsor his or her parents, and other family members, to the United States under the family reunification provisions of the Immigration and Nationality Act. One quickly comes to realize the costs to our social infrastructure of such an ill-advised policy. It is my belief that in order to begin truly reforming our immigration and citizenship laws, we must start from the beginning by doing away with birthright citizenship.
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    I would again like to thank the Committee for this hearing and strongly urge it to consider my bill, H.R. 698 as it moves forward on this issue.





(Footnote 1 return)
See, e.g., Questioning Barriers to Naturalization, 13 Georgetown Immigration Law Journal 479 (1999); The Citizenship Dilemma, 51 Stanford Law Review 597 (1999); Dual Nationality and the Meaning of Citizenship, 46 Emory Law Journal 1411 (1997); Political Rights and Dual Nationality, in Rights and Duties of Dual Nationals: Evolution and Prospects (David Martin & Kai Heilbroner eds., 2002); Mandated Membership, Diluted Identity: Citizenship, Globalization, and International Law, in Globalization and Citizenship (Alison Brysk & Gershon Shafir eds., 2003); Embracing Dual Nationality, in Dual Nationality, Social Rights And Federal Citizenship in the U.S. and Europe (Randall Hansen & Patrick Weil eds., 2002).