Tuesday, October 4, 2011

Citizen Awlaki

MQ-9 Reaper.
Photo  from U.S. Air Force.
     Our amended Constitution grants automatic citizenship to anyone born in the territory of the United States, apart from a few exceptions like children of diplomats. This was not an original provision of the Constitution, but came about after the Civil War to account for freed slaves. At the time, it was a necessary measure. Today, it is understood to make citizens of illegal aliens’ children born in the U.S., their parents’ status notwithstanding. Last week, Anwar al-Awlaki, the terrorist recruiter, was escorted off this mortal coil by a Hellfire missile fired from a remotely piloted aircraft—a drone. Awlaki’s parents were Yemeni, but his father was in the United States on a Fullbright scholarship when little Anwar was born. This made young Awlaki a citizen by birth in the United States. And his status as citizen has raised questions about the legality of President Obama’s decision to approve the strike. While that is an interesting question in its own right (see this link at the Originalism Blog for a good discussion), the strike also raises a question about the Constitution. What if we revised the Fourteenth Amendment and changed the criteria for citizenship?

     In the past, proposals to revise the Fourteenth Amendment as a solution to the illegal alien baby problem have been ridiculed. The Awlaki strike presents a different set of facts by which we can examine the proposal. For instance, if the Constitution currently made citizenship depend on birth to an American citizen, Awlaki would not have met the criteria for citizenship. The whole conversation about the legality of the drone strike would be moot (at least on grounds of citizenship). We could imagine two categories of citizens, those born to citizen parents (no matter where) and those naturalized. Historically, such a plan has many precedents. In ancient Athens, citizenship required that both parents be citizens. There is even extant the record of a court proceeding Against Neaira, in which the case turned on whether the children of a certain Athenian citizen were born to a citizen woman, his ex-wife, or to the foreign-born concubine (Neaira) with whom he was then living. In ancient Rome, the criteria for citizenship changed over the almost two thousand years from the founding of Rome to the fall of Constantinople. In 212 AD, in order to expand the tax base, the Emperor Caracalla proclaimed all free-born males in the Empire citizens. But in earlier times, citizenship depended on birth to lawfully married citizen parents. At all times, other routes to citizen status existed; but under the Republic, birth at Rome to foreign parents was not one of them.

     The Romans would have known what to do about someone who preached death to Rome the way Awlaki preached death to America (crucifixion comes to mind). In the period of Roman liberty, however, they would not have felt they were dealing with a citizen. For us, perhaps the Awlaki citizen debate can inform the larger debate about updating the Fourteenth Amendment.

1 comment:

  1. Now the IRS will have to skip enforcement on his failure to file 1040s.