A Common Sense Definition of a “Citizen” and a “Natural Born Citizen”
By: Mario Apuzzo, Esq.
September 1, 2011
The Framers of the Constitution called all those who made up the citizenry of the new Constitutional Republic “Citizens of the United States.” We know this from reading the following constitutional Articles: Article I, Section 2, Clause 2 provides that, in addition to being at least 25 years old and when elected to be an “Inhabitant” of the State in which he shall be chosen, a Representative must be a “Citizen of the United States” for 7 years. Article I, Section 3, Clause 3 provides that, in addition to being at least 30 years old and when elected to be an “Inhabitant” of the State in which he shall be chosen, a Representative must be a “Citizen of the United States” for 9 years. The Framers provided in Article I, Section 2 and Section 3 the eligibility requirements for then and future Representatives and Senators, respectively, which were, among other things, that each had to be at least a “Citizen of the United States” for 7 and 9 years, respectively. We also know from Article I, Section 2 and Section 3 that a “Citizen of the United States” is a naturalized citizen, for those sections speak of the person being eligible for the offices of Representative and Senator if he or she is a “Citizen of the United States” for 7 and 9 years, respectively. Clearly, such requirements do not mandate U.S. citizenship from the moment of birth. Regarding presidential eligibility, Article II, Section 1, Clause 5 provides: “No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.” So, these clauses together show that the Framers during the period that the grandfather clause of Article II, Section 1, Clause 5 was in effect, allowed naturalized citizens to be eligible to be President. After the grandfather clause expired, it was no longer sufficient to be simply a “Citizen of the United States” to be eligible to be President, for such citizens also include naturalized citizens. Rather, one had to now show that one was a “natural born Citizen” which was not a naturalized citizen.
The problem with applying Article II, Section 1, Clause 5 is that the Constitution as originally written defines neither a “natural born Citizen” nor a “Citizen of the United States.” Hence, we have to identify the sources to which the Founders and Framers would have looked for their definition of these terms. The historical record and early case law show that they probably would not have relied upon the English common law for these national definitions but rather on natural law and the law of nations to which they normally looked to solve problems of national proportions. This historical record and case law also show that Emer de Vattel was the Founders’ and Framers’ favorite commentator on the law of nations. Vattel said “[t]he citizens are the members of civil society.” Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758). He said that “each citizen on entering into society, reserves to his children the right of becoming members of it.” Id. Other than explaining in Section 214 how a “foreigner” can become a “citizen” through “naturalisation,” Vattel did not explain how that membership or entrance into society is acquired. Incidentally, he said that in England, “the single circumstance of being born in the country naturalises the children of a foreigner.” Hence, historically, our nation has struggled with defining who is a “citizen,” which our Constitution and laws have called a “citizen of the United States.” On the other hand, Vattel clearly told us who is a “natural born Citizen,” i.e., “[t]he natives, or natural-born citizens, are those born in the country, of parents who are citizens.” Id.
Hence, never in the history of our nation have we had any doubt as to what a “natural born Citizen” is. See Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167 (1875) (“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first”). Consequently, our national debate over citizenship has been over who is a “citizen.” This debate has involved former slaves and their descendents, Asians, American Indians, and even the children born in the United States to alien white European parents. But this debate has never been over who is a “natural born Citizen.”
Because of the doubts over who is a “citizen,” our nation has had to define a “citizen” in Acts of Congress, treaties, the Fourteenth Amendment, and through case law (e.g., U.S. v. Wong Kim Ark, 169 U.S. 649 (1898)). Regarding a “natural born Citizen,” we have defined this class of citizen only through case law which has explicitly or impliedly relied upon Vattel’s Section 212 and which to this day has never changed (e.g., The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (C.J. Marshall concurring and dissenting for other reasons-explicitly); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Justice Daniels concurring-explicitly); Minor v. Happersett (1875) (impliedly); Wong Kim Ark (impliedly)).
This means that a “citizen” is defined by Acts of Congress, treaties, and the Fourteenth Amendment (e.g., a child born in the United States to one or two alien parents or a child born out of the United States to one or two United States citizen parents or a child born out of the United States to alien parents who naturalizes to be a “citizen” after birth) and a “natural born Citizen” is defined by American common law. And that American common law definition has been since the Founding and continues until today to be a child born in the United States to a United States citizen father and mother. Finally, we are to keep in mind that the only difference between a “natural born Citizen” and a “citizen of the United States” who is not a “natural born Citizen” is that only a “natural born Citizen” is eligible to be President and Vice-President.
If putative President, Barack Obama, was born in Hawaii, he can be a Fourteenth Amendment born "citizen of the United States." But because he was not born to a father and mother who were both U.S. citizens when he was born (he was born to a father who was a British citizen), he is not and cannot be a "natural born Citizen." He is therefore not eligible to be President and Commander in Chief.
Mario Apuzzo, Esq.
September 1, 2011
####
Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved
Mario,
ReplyDeleteRegarding the citizenship qualifications for Representative, the Constitutions says “… and been seven Years a Citizen …” and similarly for Senator “… and been nine Years a Citizen …” This language has to mean that they were citizens for the last 7 or 9 years prior to their election. If it is not the last 7 or 9 years, but rather a period of 7 or 9 years in the past, then we could have the situation where a non-citizen is elected to the House or Senate.
To illustrate my point, let us examine this scenario for a Representative: A man is born in a foreign country to foreign citizen parents. He comes to the US at age 21 and becomes a US citizen. He remains a US citizen for 7 years and then repatriates back to the country of his birth. At age 50 he comes back to the US as an alien, and does not naturalize. He is over the age of 25 and was a US citizen for 7 years (from age 21 to 28). Would he be eligible to be a Representative without having to be a citizen at the time of his election? Well, if his 7 years of citizenship were not the last 7 years, then he could be elected as an alien.
Surely, the Founding Fathers would not have wanted the above scenario, and hence it must be implied that “… been seven Years a Citizen …” (for Representatives) and “… been nine Years a Citizen …” (for Senators) means the last 7 or 9 years prior to the election.
Which brings me to the 14-residency requirement for the President, for it uses the exact same language as above: “… and been fourteen Years a Resident …” Just as Representatives and Senators must have been citizens for the last 7 or 9 years prior to their election, then the President must have been a resident for the last 14 years prior to his election, and not for a 14-year period some time in his past.
Temoma makes an ineresting incidental point. Notice in both the requirements for the House and the Senate has fixed times for being a citizen, but the President must be a RESIDENT for 14 years. This would imply that the President must have always been a citizen and would never loose their citizenship. Considering that in the early years of the Republic a person could loose their citizenship simply by accepting citizenship in another country, one can easily say that a natural born citizen is one who has unalienable and undivided allegiance to the United States of America since birth.
ReplyDeleteA second point is that since the natural born citizen clause predates the 14th Amendment, one can srmise that the 14th Amendment does not define a natural born citizen, since this term and its accepted meaning predated the 14th Amendment by 80 years. More over since the 14th Amendment does not specifical mention the term natural born citizen, it could not have altered the accepted definition of a natural born citizen at the time of the adoption of this amendment.
Texoma,
ReplyDeleteWe cannot interpret a constitutional clause in a way that leads to an absurd result. This rule of construction applies to defining the "natural born Citizen" clause and the residency requirement.
Hence, I do not believe that the Framers would have allowed a person who, in the past was a "citizen," but currently is not a "citizen" to be a Representative or Senator.
In Article II, Section 1, Clause 5, there is no stated requirement in the text that the 14 years of residency be the last ones. Moreover, with respect to the President, we have a different situation from Representatives and Senators because of the need that the President be a "natural born Citizen" which is a condition that exists from birth. What overrides the presidential qualifications is the need to be a "natural born Citizen." Citizenship is much different from residency. Citizenship has its basis in allegiance, residency does not. A person can reside in any part of the world but still be solely in allegiance to the United States.
Allegiance and citizenship under Article II, Section 1, Clause 5 cannot be abandoned like residency can be at some point of a person's life. Hence, for the President, the 14 years of residency do not need to be the last 14 years of the candidate's life. His or her need to be a "natural born Citizen" will assure from an eligibility standpoint that he or she is solely loyal to the United States regardless of where he or she has lived during his life.
Finally, remember that we are only speaking of eligibility requirements. Once the Article II, Section 1, Clause 5 eligibility requirements are met, the people and their electors still have the ultimate say on whether they want or do not want that candidate to represent them.
Can you explain the observation in section 214 that the English relied on jus soli and how that would affect your analysis?
ReplyDeleteSCOTUS seems in many opinions to have equated "native" with "natural born," too. How does this affect your analysis?
Contemporary dictionaries in the 1780s treated the word "natural" as synonymous with "native." Does that affect your analysis?
Absolute proof the Founders and Framers knew and accepted Vattel`s French“naturels” to mean “natural born” before the wrote they U.S. Constitution.
ReplyDeletehttp://www.scribd.com/doc/63745074/Absolute-Proof-the-Founders-Translated-French-Word-Naturels-to-English-Term-Natural-Born
CDR Charles Kerchner (Ret)
ProtectOurLiberty.org
CDR Kerchner's Blog
STepper,
ReplyDeleteI of II
Regarding Vattel’s Section 214, we know from our Constitution and laws that there are only two classes of citizens, “natural born Citizens” and naturalized citizens. Vattel confirms at Section 214 of The Law of Nations that there can be “naturalisation” after birth and “at birth,” an expression used by Congress in its naturalization statutes. He first presents the procedure for naturalization after birth, explaining that it can occur by the power of the “nation,” a “sovereign,” or a nation’s “deputies,” exercised in favor of a “foreigner” after his or her birth. According to Vattel, the exercise of that naturalization power produces a “citizen.” It is important to keep in mind that he said “citizen” because in Section 212, he explains that the “natural-born citizens” are those born in the country to parents who are themselves “citizens” at the moment of the child’s birth. Then he explains that in England, there also existed naturalization from the moment of birth. He show how that nation followed naturalization “at birth” without the need of other legal process after birth. We know from studying English legal history that England accomplished this through its judge-made common law. See Calvin’s Case, which created the rule of naturalization “at birth” of a child born in the King’s dominion (a postnati) to alien parents (antenati) (otherwise know as jus soli “at birth” citizenship); William Blackstone, etc. Vattel has placed a child born in the country to alien parents under the category of “citizens” who are “naturalised.” Hence, Vattel is explaining that a child born in the country to alien parents, if given citizenship regardless of his or her parents not being citizens at the time of his or her birth, is by positive law naturalized “at birth” and therefore becomes a “citizen,” but not a “natural born Citizen.” Being naturalized, such a citizen is not and cannot be a “natural born Citizen.”
The Fourteenth Amendment is consistent with Vattel’s analysis. The Amendment makes those who are born in the United States to one or two alien parents or who are naturalized in the United States after birth, provided they are “subject to the jurisdiction thereof,” a “citizen of the United States,” not a “natural born Citizen.” Hence, the amendment recognizes that if one is not born in the country to citizen parents and is in need of the amendment to become a “citizen” “at birth” or in need of a Congressional Act to become a “citizen” after birth, the person shall be considered a “citizen” but not a “natural born Citizen.”
Continued . . .
II of II
ReplyDeleteRegarding the use of the word "native,” under natural law and the law of nations a "native" and "natural born citizen" meant the same thing. Chief Justice John Marshall in The Venus (1814) confirmed that “native” and indigenes (later translated to “natural-born citizen”) were of equivalent meaning. In Minor v. Happersett (1875), the Court used “native” and a “natural born Citizen” interchangeably, first saying Virginia Minor was a “native” and then later finding that she was a “natural-born citizen.” Id. at 163 and 167-68. So under the original and proper definition of “native,” it is correct to say that there are only two types of citizens: (1) “native” or “natural born Citizen” and (2) naturalized.
The confusion is then created by how our courts have used the word “native” or “native-born." Through historical development and to show that a "citizen of the United States" was born in the U.S. and was not a naturalized citizen after birth, the courts and other authorities started to give to the term “native” or "native born citizen" a different meaning than that given under natural law and the law of nations. Under this expansive definition of U.S. citizenship, a child could be born in the U.S. to alien domiciled parents and be a “native born citizen.” See U.S. v. Wong Kim Ark (1898). But by original definition, we can see that a "native born citizen" is not a "native," for a “native,” like “natural born Citizen,” is a child born in the country to citizen parents.
The Framers wrote a constitution. Each word they selected was critical to its meaning. They chose their words very carefully and wisely. They chose “natural born Citizen,” not “native born citizen.” They probably chose “natural born Citizen” so as to avoid the confusion regarding the use of the word “native” or “native-born citizen.”
Finally, you do not amend the Constitution by changing the meaning of “natural born Citizen” by giving a certain status to someone which does not equate with the status of “natural born Citizen, ” calling that status “native-born citizen,” and then saying that “native-born citizen” is the equivalent to “natural born Citizen.”
When we read the Constitution and Vattel's The Law of Nations or Principles of Natural Law we cannot fall into the trap that the Obots set which is to read the words and ascribe to them modern day populist or even modern legal meaning. We must look to what the words meant in the time frame they were written. We have to look to the founders and framers intent as to why they used the words they used and the meaning back then of those words, not now. And it is explicitly clear what Vattel meant by his use of the word and term "native" and "natural born" because he explicitly DEFINED what they were and what they meant in the immediately following phrases in the same sentence. Thus we do not have to try to figure out what Vattel meant by those words. He told us. And as we have known all along and Hillary Clinton recently confirmed in here honorary statement to the Swiss, Emer de Vattel had great influence on the founders of our nation and the framers of our Constitution. Again, Vattel told us what he meant by his words in Section 212. We don't have to try and figure it out and certainly not using a modern dictionary heavily influenced by the Progressive movements efforts to change the meaning of words to suit their socialist goals.
ReplyDeleteCDR Kerchner (Ret)
http://cdrkerchner.wordpress.com
Mr. Apuzzo, I agree with much of what you write but come to the exact opposite conclusion. I agree that there are only two classes of citizen, "naturalized" and "natural born." Obama fits into the latter category, since he was a citizen at birth.
ReplyDeleteI don't think the 14th amendment changes the analysis since it was declarative of prior law except to the extent it made slaves citizens.
I also concur with much of what CDR Kerchner writes but, again, conclude to the contrary since "natural" meant "native" in 1787.
de Vattel was writing about the various systems of law relating to citizenship in Europe and England and found the English system to be different. That's the system we followed. On the whole, Wong Kim Ark is as close as one can get to a holding and, in fact, it finds Wong to be a "natural born Citizen" even with two non citizen parents who were disqualified from becoming citizens.
Wong Kim Ark is going to be hard to get around. And Justices Scaslia and Ginsbug have opined they believe jus soli defines citizenship. Since that's the spectrum of the court I think any decision would be 9-0. But I think that state challenges can lead to a SCOTUS decision if done carefully. Do you have any plans to do that? It could be interesting.
Do you know why Ankeny wasn't taken to SCOTUS? I know plaintiff Ankeny was pro per, but wasn't there a lawyer around to help him?
STepper,
ReplyDeleteYou have done nothing here other than repeat Obot arguments. You make conclusions without any analysis, just repeating the old, worn out script regarding "citizen" "at birth," English common law, Wong Kim Ark, and Ankeny. I have written at length on these topics and will not repeat myself now other than to say the Founders and Framers wrote "natural born Citizen," not "born" "citizen," they did not rely upon English common law to define a "natural born Citizen" and you do not have any evidence that they did, they relied upon natural law and the law of nations to define national citizenship in the new republic, Wong Kim Ark only defined what a "citizen of the United States" is under the 14th Amendment, not an Article II "natural born Citizen," and Ankeny erroneously relied upon Wong Kim Ark to declare that a person born in the U.S., even to alien parents, is a "natural born Citizen."
Appuzo,
ReplyDelete"Hence, never in the history of our nation have we had any doubt as to what a “natural born Citizen” is. See Minor v. Happersett, 88 U.S. (21 Wall.) 162, 167 (1875) (“The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.")
AND that case goes onto say that there may be other categories of citizens (mentioning the debate and saying SPECIFICALLY that there was doubt about another category, which literally means that your claim that there was "no doubt" as to who was included as a whole in the category is absolutely wrong - there was only no doubt that one specific class of people DID qualify.).
You're not showing any evidence that the definition is foreclosed - and historically lawmakers, courts, and government research has disagreed with your assertion.
That you focus on what, even if true, is a minor technicality and has really never been followed (as we've had presidents in the past that have not fit your definition, setting precedent literally against the claim) shows desperation, not understanding.
To @STepper
ReplyDeleteOf Trees and Plants and Basic Logic: Trees are plants but not all plants are trees. Likewise, “natural born Citizens” are “Citizens at Birth” but not all “Citizens at Birth” are “natural born Citizens”!
Citizen at Birth (CAB) does NOT identically equal Natural Born Citizen (NBC) at Birth.
http://cdrkerchner.wordpress.com/2010/11/05/trees-are-plants-but-not-all-plants-are-trees-natural-born-citizens-nbc-are-citizens-at-birth-cab-but-not-all-cab-are-nbc/
CDR Kerchner (Ret)
ProtectOurLiberty.org
Frank Davis,
ReplyDeleteI said that there was no doubt as to who was a “natural born Citizen,” and that there was doubt as to who a “citizen” was. There was no need for Minor to decide who a “citizen” was since Virginia Minor, being born in the country to citizen parents, was under “common-law” a “native” and “natural-born citizen.” It left undecided the question of whether a person born in the U.S. to alien parents was even a “citizen,” let alone a “natural-born citizen.” U.S. Wong Kim Ark answered the open question, holding that a person born in the United States to domiciled alien parents was a “citizen of the United States” from the moment of birth and just as much a “citizen” as a “natural born Citizen” who is born in the United States to citizen parents. Of course, we know that under Article II, it is not sufficient to be a "citizen of the United States" to be eligible to be President, for only a “natural born Citizen” is so eligible.
As far as the definition of a “natural born Citizen” being foreclosed, yes, it is foreclosed until it is changed by a constitutional amendment. You simply have no reasonable argument showing that presidential eligibility as included in a nation’s constitution should not be limited by a bright line rule. The Founders and Framers said “natural born Citizen,” 35 years of age, and 14 years a residents. These elements have specific parameters which cannot be changed at whim. These are bright line rules. These material elements do not change with the political winds or because you want to make your friend eligible to be President.
There are no legal precedents from our U.S. Supreme Court showing that any person who is born in the country to one or two alien parents is an Article II “natural born Citizen” and therefore eligible to be President or Vice President. Chester Arthur, who was born to alien parents, is no legal precedent. The issue of his parents’ citizenship was never raised and argued by anyone or decided by any legal authority. In fact, the United States, consistent with Congressional Acts that had existed since 1790, argued in Wong Kim Ark that a person born in the U.S. to alien parents was an alien. Hence, how can you say that there are any precedents for your position?
Getting back to English common law, Lord Coke in Calvin's case, stated that there were TWO TYPES of born subjects.
ReplyDeletei.e. a 'subject born' & a 'natural born subjects'
Quoting Lord Coke:
"Now what a Subject born is, appeareth at large by that which hath been said de ligeantia: and so likewise de subdito dato,171 of a donaison;172 for that is the right name, so called, because his legitimation is given unto him; for if you derive denizen from deins nee,173 one born within the obedience or ligeance of the King, then such a one should be all one with a natural born subject."
Appuzo,
ReplyDeleteYou're wrong.
Minor claims that there was doubt as to what classes of citizen qualified as a natural born citizen.
Please try again.
"These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first."
ReplyDelete-"Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents."
Sounds to me like their was doubt whether the children of aliens were citizens, not whether they were natural born citizens (which, of course, they could never be by the very definition of the term). This is reinforced when they are referenced as a separate class.
The WKA decision answered the doubts by saying born on the soil to domiciled aliens makes you a citizen by force of the 14th Amendment. It then made clear this class of citizen was not a natural born citizen. From the WKA decision: "The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle."
To break it down: born of an alien on US soil = citizen; born of a citizen on US soil = natural born citizen. (Only father's citizenship counted at the time since mother took on father's citizenship, so singular is correct).
You're wrong Frank, as bdwilcox has shown you.
ReplyDeleteFrom all of the arguments I've read over the past years the correct definition of "natural born citizen" is either
ReplyDelete"one born in the country to citizen parents"
or
"whomever we wish to extend citizenship or need an excuse to call a citizen".
If the correct definition is not the first there's really no point in the founders use of any specific phrases or terms or even in their requiring any citizenship qualifications for the office of President.
While all other definitions are subject to the manipulations, weaknesses, and designs of men; the simplicity, elegance and "naturalness" of the 1st definition make it the most appropriate and reliable to ensure the long-lasting security of our nation.
It is a testament to the wisdom of our founders.
Frank Davis,
ReplyDeleteI of II
You said: “Minor claims that there was doubt as to what classes of citizen qualified as a natural born citizen.” This is wrong.
The Minor Court had not doubts as to who the “natural- born citizens” were. Rather, the Court said that, notwithstanding what “some authorities” contended, there were doubts that children born in the country to alien parents were even “citizens,” let alone “natural-born citizens.”
From the Court’s language and definitions of citizenship we can conclude that the Court relied upon Vattel for its choice of words and definitions. The Court started by telling us who the “citizens” where. It said that there were no doubts that any child born in the country to “citizen” parents was a “citizen.” It went on to say that these “citizens” belonged to a class of “citizens” called “natives, or natural-born citizens.” Note that the Court’s use of the phrases “natives, or natural-born citizens” and its definition of those terms proves that the Court for its use of those terms and definitions relied upon Vattel at Section 212 of The Law of Nations wherein his “Les naturels, ou indigenes” was translated in the 1797 edition into English as “natives, or natural-born citizens” and defined as a child born in the country to citizen parents.
Minor also told us who the born “citizens” were who followed the first “citizens” who came into being after July 4, 1776 and lived during the Founding. It said that under “common-law” (which given its inclusion of the citizenship of the parents could only refer to natural law and the law of nations which was adopted as American common law and became part of the “Laws of the United States” in Article III), children who were born in the country to citizen parents were “citizens.” It then told us that this “class” of “citizens” were called “natives, or natural-born citizens.” The Court then commented that “some authorities” consider another “class” of persons also to be “citizens,” explaining that these children are also born in the country but are born to alien parents. The Court said that “there have been doubts” whether these children are “citizens.” The Court would never have declared this other class of children, even if it declared them to be born “citizens,” to be “natives, or natural-born citizens” because they did not meet the definition of those terms provided by the Court itself which was a child born in the country to “citizen” parents. So concerning born “citizens,” and consistent with David Ramsay’s explanation of birthright citizenship in the new republic as stated in his, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789), the only born “citizen” that the Court was willing to recognize was one that was born to “citizen” parents. The Court went even further than Ramsay and added, as Vattel did in his definition of a “native, or natural-born citizen, that the child also had to be born in the country. The Court called this class of “citizen” a “native, or natural-born citizen.” It was not willing to recognize children born in the country to alien parents as another type of class of “citizen,” let alone declaring that those “citizens” also fell within the class of “citizens” called “natives, or natural-born citizens.” It follows from what the Court said that the Court concluded that all “natural-born citizens” were “citizens” but that not all “citizens” (assuming some other class existed such as those born in the country to alien parents) were “natural-born citizens.” All this shows that the Court had no doubts as to what persons made up the class of “citizens” that it called “natural-born citizens” but that it did have doubts as to whether persons born in the country to alien parents were even “citizens.”
Continued . . .
II of II
ReplyDeleteWe also know that U.S. v. Wong Kim Ark (1898) answered the question left open by Minor, i.e., whether a child born in the country to alien parents was even a “citizen.” The Court held that a child born in the United States to domiciled alien parents was under the Fourteenth Amendment a “citizen of the United States.” If Wong had been a “natural born Citizen,” there would not have been any dispute as to his status. But since he needed to be just a “citizen,” the doubts and disagreements exited, with the United States even maintaining that he was an alien by birth and not a “citizen of the United States.” So, Wong Kim Ark created the new class of “citizen” which Minor said was in doubt whether it existed. It never intended nor did it expand the class of persons who are Article II “natural born Citizens.”
The 'natural born' of English law refered to both citizenship by descent, and otherwise than by descent (jus soli). In that regard, it was idiomatic to allegiance to a king due to his protection from birth.
ReplyDeleteUnder the U.S. constitution, protection of the citizenry and those within its jurisdiction did not define citizenship, but a numerated power of the Federal government.
Another enumerated power was that of Congress over naturalization law.
Unfortunately, Wong Kim Ark violated that by misinterpreting the 14th Amendment by taking one clause out of context, and ignoring the legislative source/history of 'under the jurisdiction thereof.
Ark also ignored stare decisis in Greisser, and the judge's own precedent in Elk vs. Wilkins.
Furthermore, that judge ignored/violated Sec. 5 of the 14th Amendment, reserving enforcement of its provisions to congress through "reasonable legislation.
Vattel wrote that a nation replenishes itself through children of its citizens. The converse is true; a nation depletes/dilutes itself through children of aliens.
I have come to prefer looking nowhere else other than the Constitution and the Laws promulgated under its authority, leaving all other considerations as if informative and guiding but NOT LAW.
ReplyDeleteThe 1st Congress of 1790 promulgated "an act to make uniform the RULES of naturalization..." that was meant to serve each of the States.
First we must observe if there is a distinction between "Rule'" and "Law" in the CONTEXT of 1st instances, i.e., 'precise language'.
A Rule is said to be a 'guiding principle' whereas a Law is made based on the principles which provide their authority.
The RULE promulgated in the act above was that U.S. Citizenship would be based on Jus Sanguinis.
The confusion arises in interpreting the LAW regarding children of Citizens born abroad.
But it must be accepted that the RULE, jus sanguinis, guided the LAW.
Given that NO LAW regarding Jus Soli existed until the 14th Amendment it CAN NOT be argued that Jus sanguinis IS NOT the RULE governing the Citizenship of U.S. Citizens, in the 1st instant.
paraleaglenm,
ReplyDeleteThere are several cases which, in defining a "citizen of the United States" and not a "natural born Citizen," in dicta have stated that an American “natural born Citizen” has the same meaning as a “natural born subject” under English common law. See for example, U.S. v. Wong Kim Ark (1898). As I have argued in numerous essays on this blog, a close look at how these terms have been historically defined shows that these courts are in error in making this statement.
I think Inglis sets the stage nicely for beginning to understand the differences between the two terms.
“This question as here presented, does not call upon the court for an opinion upon the broad doctrine of allegiance and the right of expatriation, under a settled and unchanged state of society and government. But to decide what are the rights of the individuals composing that society, and living under the protection of that government, when a revolution occurs; a dismemberment takes place; new governments are formed; and new relations between the government and the people are established."
Inglis v. Sailors’ Snug Harbor, 28U.S. 99, 120, 3 Pet. 99, 7 L.Ed. 617 (1830).
In "common law" a natural born "MEMBER" of a 'tribe, clan, village, town, city, state, kingdom, etc" was the child of parents who were themselves also MEMBERS.
ReplyDeleteEnglish Common Law Statutes defined its MEMBERS "AS IF" natural born Members to any and all that it could claim as SUBJECT to their influence and might where ever in the world that might be under the authority of the Divine Right of Kings.
I see two very different and distinct understandings and definitions.
As to whatever historical expressions may have attached due to some inheritance case in a Court or some 'scholar' may have opined, each must be viewed in the light of the circumstances of the occurrence and the breadth to which each influenced the National flavor of the Constitutional usage.
Most every "State Constitution" under the Articles of Confederation did in fact retain the English Common Law SYSTEM as guides to to administer the State, but most included a Provision that stated that any of those English Laws that were Repugnant to the Principles of their Constitutions would have no effect.
I know of little that would be considered more Repugnant to the "Sovereign Citizens" of the Free and Independent States than to be 'defined' by the Laws of "Membership" promulgated to serve the principle and needs of the Divine Right of Kings.
That is why I call the Constitutional usage of natural born Citizen a wholly American "idiom".
Although the individual words are common in language and the general sense of their juxtaposition are meant to convey the nature of relationship to the State, a wholly unique set of attributes attend and are intended by virtue of the 'idioms' placement and usage within the Executive Qualification Clause of the Constitution.
If the horse is not dead yet, I will beat it one more time! This is my layman's common sense approach to the issue at hand. As many teachers have told me, repeat in your own words what you understand so that you might be corrected.
ReplyDelete1) Before the Court could hear Mrs. Minor's case it first had to determine that she was a citizen.
2) In order to do that, the court needed to refer to an established definition.
3) The definition of "natural born citizen" was established "[at] common-law, with the nomenclature of which the framers of the Constitution were familiar..."
Persons who are "born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens..."
4) Since Mrs. Minor fit the definition of "natural born citizen", she was a member of the class, "citizens."
5)Had Mrs. Minor been born to a non-citizen parent or parents, whether she was a member of the class "citizens" was in doubt, because there was doubt about the "class that include[s] as citizens children born within the jurisdiction without reference to the citizenship of their parents..."
6) The court referred to an established definition about which it had no doubt. It was not necessary that Mrs. Minor be a natural born citizen; the fact that she was made the judge's job that much easier. He did not have to resolve the issue of the citizenship status of someone born of alien parents.
****
I have always considered a definition to be an inclusive construct. That is, a definition tells us what something is - not what it is not. The more details a definition provides, the better we will understand what we are communicating.
The definition of "natural born citizen" is an example - a person born of a country to citizen parents. If you are born in a country and one or both of your parents are not citizens of that country, you are not a natural born citizen.
@apuzzo You Inglis cite is nice, but you are more on point with the conflict of definitions/perceptions of citizens at birth, and what is a naturalized citizen, i.e., oath and renunciation versus action of positive law at birth. Case law has two camps, and they are currently at war.
ReplyDeleteScotland and England . . . Calvin's Case . . . those are nuances that don't apply, but are instructive.
United Natural Born Citizen,
ReplyDeleteI of II
We are in agreement on the reading of the Naturalization Act of 1790 and its importance in understanding what an Article II "natural born Citizen" is.
This Act along with those of 1795, 1798, 1802, 1804, and 1855, did not distinguish whether the child born to an alien was born in or out of the United States. In either case, the child was not a citizen and had to naturalize, either derivatively from the naturalizing parent if done before the child reached the age of majority or on his or her own if done thereafter. Since wives followed the national character of their husbands, this law meant that the father of a child born in the U.S. would have to naturalize which would cause both his child and his wife to then become “citizens of the United States,” not “natural born Citizens.”
These Acts were cited and analyzed in Minor v. Happersett, 88 U.S. 162, 168-170 (1875), where the Court said:
"Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided "that any alien, being a free white person," might be admitted as a citizen of the United States, and that the children of such persons so naturalized, dwelling within the United States, being under twenty-one years of age at the time of such naturalization, should also be considered citizens of the United States, and that the children of citizens of the United States that might be born beyond the sea, or out of the limits of the United States, should be considered as natural-born citizens. These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since. In 1855, however, the last provision was somewhat extended, and all persons theretofore born or thereafter to be born out of the limits of the jurisdiction of the United States, whose fathers were, or should be at the time of their birth, citizens of the United States, were declared to be citizens also.
As early as 1804 it was enacted by Congress that when any alien who had declared his intention to become a citizen in the manner provided by law died before he was actually naturalized, his widow and children should be considered as citizens of the United States, and entitled to all rights and privileges as such upon taking the necessary oath; and in 1855 it was further provided that any woman who might lawfully be naturalized under the existing laws, married, or [p169] who should be married to a citizen of the United States, should be deemed and taken to be a citizen.
From this it is apparent that from the commencement of the legislation upon this subject alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizens by birth" (footnotes omitted).
Id. at 168-69.
Continued . . .
II of II
ReplyDeleteIt is critical that with these Acts clearly in front of the Court, it ruled that there was no doubt that children born in the U.S. to citizen parents were “natural born Citizens” but that, despite “some authorities” including such children as “citizens,” “there have been doubts” about whether children born in the U.S. to alien parents were even “citizens.” If these Acts only applied to children born out of the United States, i.e., if only children born out of the United States and not also those born in the United States to alien parents had to naturalize, then the Court would have been bound by such Congressional Acts and would not have put into doubt whether children born in the U.S. to alien parents were even “citizens.”
Yet Justice Gray in U.S. v. Wong Kim Ark (1898) made the statement that the United States following the revolution and the adoption of the Constitution and down to 1898 adopted and used the English common law as the basis for the rules of decision for defining our national citizenship. There simply is no U.S. Supreme Court case law or Congressional or historical support for what Justice Gray said. Just the Naturalization Acts of Congress simply prove Justice Gray to be wrong.
Indeed, jus sanguinis ruled under our nation's naturalization acts, until Justice Gray totally disregarded them in Wong Kim Ark and through judicial power (not the power of our legislature) naturalized “at birth” children born in the United States to alien parents as Lord Coke had done in Calvin's Case (1608) when he naturalized Calvin (born in Scotland to aliens in England who were called the antenati) at birth based on jus soli subjectship (also done by the power of the judiciary and not the power of Parliament which had refused to naturalize the postnati of Scotland as English “natural born subjects”).
Hence, given what the First and Third Congress said in the 1790 and 1795 Acts (legislation passed by many founders and framers close in time to the adoption of the Constitution), we know that for those born after July 4, 1776, the Founders and Framers could not have considered a child born in the United States to alien parents to be a "citizen," let alone a "natural born Citizen."
Your last comments are appropriate for Vattel himself, since the land on which he was born was owned by the king of Prussia within the boundaries of Switzerland.
ReplyDelete'Although a subject of the king of Prussia by birth, and a servant of the elector of Saxony by profession, Vattel was first and foremost Swiss.'
http://oll.libertyfund.org/index.php?option=com_content&task=view&id=1509&Itemid=284
As an advisor to the Elector of Saxony, Vattel had to argue against the king of Prussia (Frederick the Great) that Saxons were NOT subject to conscription into the Prussian army, because they were not born subjects to the king of Prussia, although Vattel himself was.
So in the end, Vattel was forced to live out for himself all that he wrote.' That was an important consideration for the Framers of our Constitution.
Doublee,
ReplyDeleteYou said: "1) Before the Court could hear Mrs. Minor's case it first had to determine that she was a citizen."
This is absolutely correct. This is the reason that what Minor said about "citizens" and "natural-born citizens" is not dicta as the Obots tell the world, but rather a "ratio decidendi" for its decision regarding the question of whether women had the constitutional right to vote.
paraleaglenm,
ReplyDeleteYou said:
"Scotland and England . . . Calvin's Case . . . those are nuances that don't apply, but are instructive."
I disagree with your statement that those little details do not apply, but are instructive.
The point with Calvin's Case is that England did not know what to do with the postnati (those who were born in Scotland after Scottish King James IV in 1603 became King of England as James I). Were they aliens in England or were they English "natural born subjects" of England and therefore able to inherit English land? The postnati were in need of naturalization but Parliament because of political reasons did not do it. So they let the court do it. And the court naturalized Calvin at birth using the rationale that anyone born in the King’s dominions (which developed as jus soli or territorial birthright citizenship) owed him allegiance as its reason for allowing someone to become a "natural born subject" from birth by the mere fact of being born in the dominions of the King and under his obedience, even though Calvin also owed political allegiance to King James as the King of Scotland and Calvin's parents were aliens in England (antenati) who needed a legislative act to be naturalized in England. So Calvin's Case established the rule that a child born in the King's dominions and under his obedience was automatically naturalized at birth in the territory of his birth regardless of whether he may owe political allegiance to another sovereign (King James as King of Scotland) and regardless of the citizenship of his parents (aliens in England who owed allegiance to the King of Scotland).
Justice Gray--abandoning 108 years of Congressional Acts and over 111 years of American “common-law,” which, to grant citizenship to those born in the United States, relied not only upon place of birth but also upon the citizenship of the child’s parents (see Minor v. Happersett (1898))--applied the same logic in Wong Kim Ark to declare U.S.-born Wong, who at birth owed allegiance to the Emperor of China and who was born to alien parents, a born “citizen of the United States.”
But as we may come to discover by carefully studying Calvin's Case, persons like Calvin and Wong are naturalized at birth. Even though Lord Coke called them "natural born subjects," under the controlling American common law definition of the clause, they are not and cannot be "natural born Citizens." This understanding is confirmed by Vattel who in Section 214 of The Law of Nations explained that these children, being born in England’s territory to alien parents, were naturalized at birth by the mere fact of being born in that territory. Being naturalized at birth, they are born “citizens of the United States” under the Fourteenth Amendment, case law, Congressional Acts, and treaties, but are not and cannot be “natural born Citizens.”
Re: 0'bots, & dicta...
ReplyDeleteI pray that I am not lumped in with 0'Bots for calling the Minor dicta dicta...and if it is determined that the dicta rises to the level of ratio decidendi as you point out it STILL requires an 'adjudicated opinion' in order to apply it to another set of circumstances as implied by this brief summary.
Unlike obiter dicta, the ratio decidendi is, as a general rule, binding on courts of lower and later jurisdiction—through the doctrine of stare decisis.
The 'goal' needs to be a Declaratory Opinion from the SCOTUS on the 'specific' subject matter that will stand as Settled Law by the nature of the Opinion.
The Opinion would in no way change the nature of the subject nor pass it over to the Congress to promulgate 'abridgments, enlargements or other wise modify' by simple legislation.
Its position within the Constitution will not change nor would the proscription against changing it except by Amendment.
But to argue that the 'legal' definition is KNOWN is missing the point, it is not 'acknowledged' as a 'legal' definition and iunenforceableunenforcable.
Even we, fighting the same fight, look at the subjvariancesbtle variences so at times it seems we do not agree.
I have been unable to be "Certified" as being an American/U.S. natural born Citizen and took that fact to the Courts who refused Jurisdiction or to speak to the merderision with derrisprovedBut I have prooved that there is no acknowledged 'legal' Constitutionalhe Consttitutional idiom of natural born Citizen.
Now I am Challenging the Election Laws of the State of Oklahoma, (and is applicable to every State)acknowledginglack of acknowleding the Statutory Construction of Article II Section I Clause V and providing for the "exclusionary provisiprerequisitexrequirementerequisit requirment' of the Clause.
The State Constitution of Oklahoma allows for the Supreme Court to 'look into' not only the State Constitution, but also the COTUS, when it is necessary for a case at hand.
I have asked the Court to look into the Clause to determine if its Statutory Construction is applicable to the formulation of the State Election Laws and if so, Certify a Constitutional Question to the SCOTUS for a Declaratory Opinion on the definition, meaning and intent of the subject matter.
That Opinion may contain various dicta in arriving at an Opinion, but the Opinion will be Settled Law on the SUBJECT.
From Minor v.Happersett it can be summarized, that the court recognized two distinctly separate classes of children born in the country.
ReplyDelete1. "born in a country of [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens..."
2.".... children born within the jurisdiction, without reference to the citizenship of their parents.
As to this class, there have been doubts, but never as to the first."
Due to the Wong Kim Ark decision, it becomes clear that there are TWO types of born citizens.
The Obots conveniently claim that Justice Waite's doubts in Minor v. Happersett (1875) related to who can be a “natural born Citizen.” Their claim is convenient because we know that U.S. v. Wong Kim Ark (1898) resolved the question left open by Minor by declaring that Wong, a child born in the United States to domiciled alien parents who were “subject to the jurisdiction thereof,” was a “citizen of the United States” under the Fourteenth Amendment. Hence, the Obots argue that Wong Kim Ark expanded the class of persons who can be a “natural born Citizen” to include putative President, Barack Obama, who presumably was born in the United States to a United States citizen mother and British citizen father.
ReplyDeleteOn the contrary, I have maintained that the Minor doubts had nothing to do with who can be a “natural born Citizen,” but rather only to do with who can be a “citizen” under the Fourteenth Amendment.
In Wong Kim Ark, Justice Gray explained that Justice Miller, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark in The Slaughterhouse Cases, (1873): “The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States. 16 Wall. 73.” Id. at 678.
In arguing that the U.S. Supreme Court was not committed to the idea of denying the status of “citizen of the United States” under the Fourteenth Amendment to a child born in the United States to alien parents, Justice Gray then said:
“That neither Mr. Justice Miller nor any of the justices who took part in the decision of The Slaughterhouse Cases understood the court to be committed to the view that all children born in the United States of citizens or subjects of foreign States were excluded from the operation of the first sentence of the Fourteenth Amendment is manifest from a unanimous judgment of the Court, delivered but two years later, while all those judges but Chief Justice Chase were still on the bench, in which Chief Justice Waite said: "Allegiance and protection are, in this connection" (that is, in relation to citizenship), reciprocal obligations. The one is a compensation for the other: allegiance for protection, and protection for allegiance. . . . At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children, born in a country of [p680] parents who were its citizens, became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further, and include as citizens children born within the jurisdiction, without reference to the citizenship of their parents. As to this class, there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens” (citing Minor v. Happersett).
Justice Gray then went on to explain that The Slaughter House Cases’ statement was only dicta and therefore not binding on the Court.
Note that Justice Gray told us that The Slaughter House Cases dicta regarding who may be a “citizen” and Minor’s doubts about who may be a “citizen” related only to being a “citizen” under the Fourteenth Amendment, not to being an Article II “natural born Citizen.” Justice Gray did not refer in any way to who may be an Article II “natural born Citizen.” Nor did Justice Gray state that the question of what is the meaning of “subject to the jurisdiction thereof” related to a “natural born Citizen” in any way. This explanation by Justice Gray proves that Minor's doubts had nothing to do with who can be an Article II “natural born Citizen,” but rather only to do with who can be a “citizen" under the Fourteenth Amendment.
There is a story at the National Journal, accessed at http://www.nationaljournal.com/hotline/campaign-law-watch/fec-no-u-s-birth-certificate-no-presidential-matching-funds-20110903, regarding Abdul Hassan, the foreign-born New York lawyer who was naturalized in the United States after birth and who wants to run for President notwithstanding the fact that he is disqualified from doing so under Article II, Section 1, Clause 5. Mr. Hassan just obtained a tentative ruling from the Federal Election Commission which says that, even though he is clearly not eligible to be President, he can publicly solicit presidential campaign funds and must file campaign contributions reports once he becomes a candidate for President (receives at least $5,000.00 in public contributions or spends that amount on his presidential campaign), even if he is not eligible to hold the office if he were to win. The ruling also says that since he is clearly not eligible to be President, he is barred from receiving federal matching funds. The Commission has yet to publish its advisory opinion.
ReplyDeleteAt its hearing on Friday, September 2, 2011, Commission members said that the Commission has very limited jurisdiction over elections and that it does not have jurisdiction to decide whether a "candidate" is eligible to be President under Article II, Section 1, Clause 5. They said that a “candidate” for purposes of the Commission rules is not necessarily the same thing as a “candidate” who satisfies a state’s ballot access rules and is allowed onto that state’s ballot. They also said that the states have historically controlled who gets on the ballots to run for federal public office. They said that to avoid fraud, the voters should be informed if a “candidate” is not eligible to hold a public office for which he or she may be soliciting funds and that the states have to make sure to protect the public from fraudulent solicitation of campaign funds. Finally, they said that running for office does not present qualification limitations as does actually occupying the office for which one is vying during an election.
The article also reports that Mr. Hassan has filed suit in which he “contends the 14th Amendment, which prohibits any law abridging the privileges or immunities of U.S. citizens, trumps Article II, Section 1, the ban on non-U.S.-born citizens occupying the presidency.” The Commission reported during its Friday hearing that the Federal District Court in New York dismissed his case on the ground that he failed to state a claim upon which relief can be granted (called a Rule 12(b)(6) challenge). The Commission also reported that the Second Circuit Court of Appeals has affirmed the dismissal for lack of standing. Mr. Hassan will most likely file a petition for a writ of certiorari with the U.S. Supreme Court in which he will ask our highest court to review his case.
I left the following comment at the web site:
“Article II, Section 1, Clause 5 bans from being eligible for President those who are not "natural born Citizens," not those who are "non-U.S.-born citizens" as you state. The words chosen by the Founders and Framers count for something. Please do not substitute your words for the words that the Founders and Framers chose and included in the Constitution.”
Obots have a treasure trove of dicta and declaratory judgments with erroneous and assumptive language 'proving' that: there are only two types of citizens, born and naturalized; that naturalization only includes citizenship by oath and renunciation; that 'subject' = 'citizen,' and therefore English common law's 'natural born subject' is the only basis for interpreting 'natural born citizen;' and that native-born children, even of aliens, illegal or otherwise, are citizens at birth, i.e., not naturalized but 'born,' and therefore in 'natural born citizen' category.
ReplyDeleteThis is what makes the issue insurmountable in the court of public opinion . . . judicial error has corrupted jurisprudence and the constitution.
The Calvin Case is worshipped as Gospel, and yet it involves a feudal tyranny absorbing a sovereignty while the political dynamics defining 'natural born citizen' involve a free Republic separating from a tyrannical monarchy . . . therefore, Calvin is not dispositive as the fact pattern is NOT analagous, if not completely opposite.
Mario,
ReplyDeleteAgain, we come to the [lack of]understanding of "standing" (forgive the pun).
What are the appeals courts basing the opinion of standing on? They say that he can't "state a claim upon which relief can be granted."
Isn't his relief in this case the ability to run for president?
What I continue to be mystified in these decisions is why they just say "Sir, you are not a natural born citizen, per Article 2 of our Constitution" and then give a best guess of what that is.
He can then appeal that all the way to SCOTUS and they decide. Or will they not do this precisely because they know how questionable the status of the standing president?
The Stacker,
ReplyDeleteIt is legally and politically safer for a court to say no standing as opposed to saying you do not state a claim that has any merit in fact or law so that it can later say (as the situation may require for who knows what reason) I did not decide anything as to the merits of your case. This is the best way for a court to wash its hands of a matter it does not want to handle for one reason or another.
On why the Second Circuit relied on standing, I have not read the decision but will venture a guess. It probably said that Hassan's injury is too speculative or hypotetical at this point given that he has a long ways to go to show that he is a viable presidential candidate. This is a real easy way our for the court. Speculation of damage is a court favorite in the standing arsenal.
A commentator by the name of JudHanson has left the following comment at
ReplyDeleteFEC: No U.S. Birth Certificate; No Presidential Matching Funds, accessed at
http://www.nationaljournal.com/hotline/campaign-law-watch/fec-no-u-s-birth-certificate-no-presidential-matching-funds-20110903#comment-302248844 :
“This definitely belongs in "weird news." Interesting strategy to use the 14th Amendment to try and nullify Art. 2, Sec. 1, which states that candidates for President must be natural born US Citizens. However, if this did somehow make it to SCOTUS and this guy won, it would finally shut up all the idiot birthers.”
Here is my response:
“How can you consider the birthers "idiot[s]" if you need SCOTUS to shut them up?
Additionally, concerning the 14th Amendment, there is no evidence either from its text or legislative history that the amendment was suppose to change the meaning of an Article II "natural born Citizen" other than to set a standard for who could be the parents of a "natural born Citizen."
Moreover, under the 14th Amendment, Abdul Hassan is a "citizen of the United States" by naturalization after birth. Obama, if born in Hawaii, is a "citizen of the United States" by naturalization "at birth." Hence, both are naturalized citizens, one way or another, and not "natural born Citizens." Consequently, under the "natural born Citizen" clause of Article II, both are currently disqualified to be eligible to be President. If our nation wants to include one or both of them to be eligible to be President, then a constitutional amendment under Article V is necessary.”
As both you and I know, the speculation is the worst of slippery slopes. They essentially applied that to Alan Keyes bid in California when they suggested he "didn't have a real shot" at winning. The problem is, where do they get that idea? Media? Polls? Intuition?
ReplyDeleteYou have to have a chance at winning to have a fair election?
The degree to which law has become sophistry is astounding. Yes, this has always existed, but they are taking it to new levels, basically negating the rule of law with arguments invented out of thin air.
Hi Mario,
ReplyDeleteAnother fine writing. I have read many of your essays and agree completely with your logic and arguments. Nonetheless, I continue to amaze at the lack of logic and common sense of some like "Frank Davis". My favorite is the 14th amendment argument. These guys argue that it's "because I say so", not based on fact. As I read through response after response from you in these comments, as you destroy Frank and similar other arguments, I know it must get tedious for you at times to respond to such eggheads. But, you do it anyway.
You have my thanks and admiration for being out front on this and for your tireless pursuit of the truth about Barry. I frequently lose hope that we will ever see even proper media exposure of this issue, let alone a fair resolution. But I try to keep the faith that the day will come when the truth will prevail.
Thanks for your hard work.
I of II
ReplyDeleteI have argued that before U.S. v. Wong Kim Ark (1898), under the then-prevailing Acts of Congress, children born in the United States to alien parents were aliens. Obots over at Dr. Conspiracy’s blog are trying to prove that before the U.S. v. Wong Kim Ark (1898) decision, children born in the United States to alien parents were considered by our nation to be “citizens.” They fail in their endeavor on at least four fronts.
1. They fail to address that the naturalization statutes of Congress from 1790 to 1866 considered or treated children born in the United States to alien parents to be aliens.
2. They cite “some authorities” from before the Minor v. Happersett decision of 1875 that support their position. But they fail to address the fact that Minor in 1875, after defining a “natural born citizen” as a child born in the country to citizen parents, said that “some authorities” also contend that a child born in the country, regardless of the citizenship of his or her parents, is a “citizen” (the Court did not say “natural born citizen”). The Court added that “there have been doubts” whether such a position was correct and left those doubts to be decided on another day.
3. The question left unanswered by Minor was answered by U.S. v. Wong Kim Ark in 1898. The United States in Wong Kim Ark argued that Wong, born in the United States to alien parents, was an alien. The Court disagreed. To justify it holding that a child born in the United States to domiciled alien parents is a “citizen” under the Fourteenth Amendment (not an Article II “natural born Citizen”), the Court, without providing any legal or historical basis for its approach, resorted to applying in 1898 the English common law that prevailed in the colonies before July 4, 1776 to define national citizenship, and disregarded the fact that we as a new nation no longer applied the English common law to define our national citizenship but rather applied natural law and the law of nations which became American common law, as was confirmed by, among other sources, founder and historian, David Ramsay, in 1789; St. George Tucker in 1803; the naturalization acts of Congress of 1790, 1795, 1798, 1802, 1804, 1855, and 1866; and by numerous U.S. Supreme Court and other court cases including The Venus, 12 U.S. (8 Cranch) 253, 289(1814) (Chief Justice John Marshall, concurring and dissenting for other reasons); Inglis v. Sailors’ Snug Harbor, 28U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830); Shanks v. Dupont, 28 U.S. 242, 245 (1830); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Justice Daniels concurring); Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36 (1872); Minor v. Happersett, 88 U.S. 162, 167-68 (1875); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879); Ludlam v. Ludlam, 26 N. Y. 356 (1883); and United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890).
4. They argue that there are no records of children who were born in the United States to alien parents being naturalized so therefore such children must have been “citizens of the United States.” But they fail to realize that historically, there was no need for such children to naturalize on their own. These children, if their parents naturalized before their 21st birthday, automatically became “citizens of the United States” derivatively and did not need any further naturalization. Also, before 1922, if an alien women had children and married a U.S. citizen, both the alien woman and her alien children automatically became U.S. citizens. There was no need for these children to obtain any naturalization from any court. The Obots have not reported that prior to Wong Kim Ark, there are no naturalization records for persons aged 21 or over who were born in the United States.
Continued . . .
II of II
ReplyDeleteI have also argued that any child born in the United States to one or two alien parents is in effect naturalized “at birth” under the Fourteenth Amendment which was supposed to be the Civil Rights Act of 1866 constitutionalized by Congress. The Obots argue that there is no such thing as naturalized “at birth.” Calvin’s Case (1608) and Emer de Vattel in Section 214 of The Law of Nations (1758) both instruct that persons born in a country to alien parents can be naturalized “at birth.” Also, Congress has been naturalizing children “at birth” who were born out of the United States to citizen parents since 1790.
The Obots also argue that Congress never had the authority to naturalize anyone born in the United States. In making that argument, they totally disregard the Civil Rights Act of 1866 which made any person who was born in the United States and not subject to any foreign power a “citizen of the United States.” While such a “citizen” would by definition also be a “natural born Citizen,” nevertheless, Congress saw fit to apply its naturalization powers to children born in the United States, which is the only power that it has under the Constitution to make anyone a “citizen of the United States,” to declare such a person a “citizen of the United States,” regardless of the race or color of the person. See also, Jill A. Pryor, “The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty,” 97 Yale L.J. 881 (1988) (“Section II demonstrates that Congress' naturalization powers under the Constitution enable it to naturalize citizens from birth. Section III marshals textual and structural support for the alternative ‘naturalized born’ approach, which reads the clause to require that the presidential candidate be a citizen at the time of birth. Under that approach, Congress has the power to define which classes of people will be citizens upon birth, but it may not declare any person a ‘citizen at birth’ retroactively." Read the rest of her article at page 893, “The ‘Naturalized Born’ Approach,” which clearly explains that there does, indeed, exist naturalization “at birth” under our laws).
There is a lot of misinformation being put out by the Obots, all for the purpose of achieving their political agenda. One of their favorite pieces is that a Fourteenth Amendment born "citizen of the United States" replaced an Article II "natural born Citizen." They then argue that anyone who is a Fourteenth Amendment born "citizen of the United States" is therefore an Article II "natural born Citizen."
ReplyDeleteBut the Obots are wrong again. A Fourteenth Amendment born “citizen of the United States” did not amend or abrogate an Article II “natural born Citizen”
Since the beginning of our nation, an Article II “natural born Citizen” has always been defined in reference to the citizenship of the child’s parents at the time of birth in the United States.
The Fourteenth Amendment, for born “citizens,” added to the requirement of birth in the United States that the child be born “subject to the jurisdiction” of the United States. In drafting this clause, there is no evidence either from the text or the debates that the framers were someone changing or abandoning the long-standing requirement of citizen parents which applied to a “natural born Citizen.” Rather, because birthright citizenship since July 4, 1776 had been preserved only for the children of citizens, the evidence suggests that the framers were creating a new born “citizen” which had to be born in the United States and be “subject to the jurisdiction thereof.” Again, this was not a “natural born Citizen,” but rather a new born “citizen of the United States.”
Finally, it is highly unreasonable to contend that the Fourteenth Amendment, by defining a born “citizen of the United States” silently or by implication amended or abrogated an Article II “natural born Citizen.” The Founders and Framers carefully distinguished between a “natural born Citizen” and a “citizen of the United States” not only in Article II, Section 1, Clause 5, but throughout the Constitution. They specifically wrote in Article II, Section 1, Clause 5 that after the adoption of the Constitution, that is was not sufficient to be a “citizen of the United States” to be eligible to be President. Rather, one had to be a “natural born Citizen.” Additionally, our Congress, since 1790 has always distinguished between a “natural born Citizen” and a “citizen of the United States.” We cannot allow the Fourteenth Amendment to erase this carefully planned approach to defining the eligibility requirements for the President and Commander in Chief of the Military as conceived by the Founders and Framers and as recognized by our Congress since the beginning of our nation without any evidence of the framers of the Fourteenth Amendment and Congress having carefully studied and acted upon the matter.
Puzo1 wrote: "birthright citizenship since July 4, 1776 had been preserved only for the children of citizens,"
ReplyDeleteResponse:
Ramsay was wrong two hundred twenty years ago and is still wrong today.
Doctor David Ramsay ran for a South Carolina seat in the US Congress in the first election held after the Constitution was ratified. He lost. In fact, he came in third. The winner was William L. Smith. Ramsay contested the election and petitioned Congress to declare Smith ineligible. He even wrote a letter to James Madison asking Madison to support his petition. He also wrote a dissertation entitled “Manners of Acquiring the Character and Privileges of a Citizen of the United States”. He claimed that Smith was ineligible because he had not been a citizen for 7 years as required by the Constitution.
William L. Smith was born in South Carolina in 1758. His mother (a British subject) died in 1760. His father (a British subject) sent him to London in 1770, five months later the father died. William stayed in London until 1774, when he went to Geneva, Switzerland for school. He returned to London in 1779 where he studied law. He returned to the United States in 1783. He was elected to the first Congress in 1788.
In his Dissertation, Mr. Ramsay argued that Mr. Smith being absent from the United States at the time of the Declaration of Independence
couldn’t acquire citizenship of the United States and that United States citizen is a birthright only to those who were born after the Declaration of Independence and that this citizenship was inherited by children of those citizens who have taken part of the American Revolution. He noted “[b]y this eventful declaration, ‘a nation was born in a day’ Nearly three millions of people who had been subjects, became citizens.”
As such, since Mr. Smith and his parents left the United States prior to 1776 then according to Mr. Ramsay, Mr. Smith did not inherit United States citizenship from his parents because they themselves were not United States citizens since both of them died prior to 1776.
In the hearing before Congress regarding the eligibility of Mr. Smith, James Madison addressed the members on May 22, 1789 by declaring:
“He supposes [Dr. Ramsay], when this country separated from Great Britain, the tie of allegiance subsisted between the inhabitants of America and the king of that nation, unless by some adventitious circumstance the allegiance was transferred to one of the United States. I think there is a distinction which will invalidate his doctrine in this particular, a distinction between that primary allegiance which we owe to that particular society of which we are members, and the secondary allegiance we owe to the sovereign established by that society.”
In other words, Mr. Madison argued that upon separation from Great Britain by the Declaration of Independence that those persons kept their allegiance to their respective colonies. In other words, when Mr. Smith along with his father moved to Great Britain in 1770 and he became an orphan shortly thereafter and stayed in Great Britain until
1783 when the peace treaty was signed by the United States and Great Britain that Mr.
Smith was still considered a citizen of colony of South Carolina.
Mr. Madison further added
that:
”What was the allegiance as a citizen of South-Carolina, he owed to the King of Great Britain? He owed his allegiance to him as a King of that society to which, as a society he owed his primary allegiance. When that society separated from Great Britain, he was bound by that act and his allegiance transferred to that society, or the sovereign which that society should set up, because it was through his membership of the society of South-Carolina, that he owed allegiance to Great Britain.”
As such, Mr. Smith was still a citizen of South Carolina when it changed its allegiance from the king of Great Britain to the United States in 1776.
In the context of the constitutional debate going on today about the meaning of an Article II "natural born Citizen" and my contribution to that debate, this is the type of sophomoric garbage that we get back from Obots. Here is Obot Rickey commenting TODAY on Obot Dr. Conspiracy's blog about me. This would be Rickey's claim to fame and evidence of the breadth of his intellectual prowess:
ReplyDelete"I’m reminded that 'Constitutional attorney' Mario was incensed when the Kerchner case was scheduled for conference and Dwight Sullivan informed him that this meant that cert had been denied. Dwight had to school Mario on the fact that since not a single justice had asked for a response to Mario’s petition, it meant that none of them were interested in taking up the case.
However, my lasting impression of Mario is that he never demonstrated sufficient honesty to admit that he was wrong when he claimed that Americans were banned from traveling to Indonesia in 1981. When faced with incontrovertible evidence that no such ban existed, instead of acknowledging his error Mario insisted that there was a “de facto” ban. That told me all that I needed to know about Apuzzo Esq."-Obot Rickey.
Here is more reporting on the Obots’ latest machinations. Dr. Conspiracy is trying to win the hearts of good Americans (whom he perceives in his condescending mind to be vulnerable and easy prey) and therefore the debate on the meaning of a "natural born Citizen" by telling all the world how terrible our U.S. Supreme Court was in declaring in 1856 that blacks were not citizens and in 1875 that women could not vote.
ReplyDeleteI have always said that Dr. Conspiracy is a demagogue and rabble-rouser and this only further confirms my opinion of him.
Why does Dr. Conspiracy not tell us what blacks not being citizens in 1856 or women not being allowed to vote in 1875 has to do today with the definition of an Article II "natural born Citizen" which is a child born in the United States to citizen parents?
To @Atticus Finch
ReplyDeleteHello Mr. Finch:
I see you're back posting behind the veil of a pseudo ID all the while assuming the position of being an expert. If you want a real man to real man debate with Attorney Apuzzo, tell us all your name. Put your real name with your words if you believe them so strongly.
My name is CDR Charles Kerchner (Ret). What is your real name? What is your profession? The owner of this blog posts under his real name and I think you should too given your proliferation of posts with claimed expertise here. I'd like to know who you are. Put your real name on your words. You've been hiding behind your pseudo ID long enough in the blog. What is your real name and profession and claim to expertise in these matters? Or are you simply an Obot disinformation specialist afraid to reveal your real name. I'm sure others would like to know your real name too. We'd like to check out your credentials and claim to expertise.
CDR Charles Kerchner (Ret)
I need your help to continue the print media ads to expose the usurper and criminal Obama. Please make a donation today to help. « CDR Kerchner's Blog
ReplyDeletehttp://cdrkerchner.wordpress.com/2011/09/06/i-need-you-help-to-continue-the-print-media-ads-to-expose-the-usurper-obama-please-make-a-donation-today-to-help/
Please make a donation today to help. Any donation large or small will be sincerely appreciated. Synergy at work. If we all do a little together we can accomplish a lot. Use this link:
http://www.kerchner.com/protectourliberty/donate.htm
I thank you in advance,
CDR Charles Kerchner (Ret)
ProtectOurLiberty.org
@Finch
ReplyDeleteSmith did not meet the seven-year requirement; basic math tells us that 1783-1788 is only five years. Then there is the conundrum of law if being a subject within a colony translated to being a citizen of the United States. Only if the subject was a resident during 1776.
The Calvin Case considered those born in Scotland prior to a Scottish nobleman becoming King of England, to those after, i.e., antinati versus postnati. Were they Scottish, or did all Scots become British.
Usually, the law is fairly clear and common sense. However, circumstances arise that require 'tweaking' the law and winking of the eye.
Dr. Ramsay's treatise is worth reading. It is clear and concise and sensible. It is summarized adequately in his petition in the Smith case.
In fact, when the 1790 Naturalization Act was passed, ten months after Madison won his 'place of birth' argument, it was congruent with Ramsay's treatise and contained nothing of Madison's.
With his parents dead, Smith relied on extended family to preserve his Carolina estates. His actions as a de facto ambassador favored his political ties to the Revolution rather than as a Loyalist. One would hope he had joined the Revolution in more a material fashion, but he seems to have been a person of privilege.
As I have explained, if English law was so sacrosanct, then jus sangiunis as Blackstone described as an active force of law in 1350 and the 1722 British Act would have been recognized in the colonies, but it wasn't.
Why? I proposed that the limited jurisdiction of the colonies forced them to rely, for over one-hundred years, on the jus soli principle in English feudal law.
When one reads Ramsay's treatise and the 1790 Act, it is clearly evident that jus soli was abandoned for the 'enlightened' concept of jus sanguinis.
Now, if you feel the power of a Monarch controls Natural Law (a remnant of feudalism), versus the bloodline and inheritance of a father to son (Natural Law as related by Vattel), then just admit that. Don't rely on snippets of jurists past . . . you are a Citizen of the United States, not a pawn of questionable conventions of feudal times.
As for the 14th Amendment, it did not guarantee citizenship to children of aliens, rather to children of slaves, who had no nationality per se. Horace Gray violated his own stare decisis, precedent, and Sec. 5 of the 14th Amendment in order to create the jus soli citizen.
If you want to cling to jus soli as a religious dogma, fine. However, you must admit that a century later jus soli, as made law by Horace Gray, is destroying our country.
paraleaglenm wrote:
ReplyDelete"Dr. Ramsay's treatise is worth reading. It is clear and concise and sensible. It is summarized adequately in his petition in the Smith case.
In fact, when the 1790 Naturalization Act was passed, ten months after Madison won his 'place of birth' argument, it was congruent with Ramsay's treatise and contained nothing of Madison's."
Response:
The Naturalization Act of 1790 was not in your words "congruent" with Ramsay's dissertation.
The Act was applicable to foreign born children of alien parents and since Mr. Smith was not foreign born but in fact was born in the colony of South Carolina before it changed its allegiance from the British Monarchy to the United States.
Moreover, Dr. Ramsay himself acknowledged that Mr. Smith was a citizen when Dr. Ramsay voted in favor of Mr. Smith as a privy counsellor in 1785 in which the office of privy counsellor had to be a resident for five years preceding the election.
Below is a newspaper article dated November 22, 1785 regarding this matter:
"The Dr. has declared, that I was, at the time of my election, qualified to be a privy counsellor. Let us examine then the qualification of a privy counsellor---the following are the words of the constitution:---'The members of the privy council shall have been residents in this state five years preceding their election.' I arrived here from Europe in November 1783---I qualified as a privy counsellor in August 1785, the short space of 21 months. . . . In his Calm Reply, he says I was, in Nov. 1783, a British subject: in his Short Reply, he says I was in August 1785 eligible to the office of privy counselor, and in October 1785, I actually had his vote for that office. Let him reconcile this monstrous absurdity!"
paraleaglenm
ReplyDeleteIn the WND forum using the the name of su359115 you posted on
Aug 22, 2011 that Mr. Smith was
a citizen of the United States when you stated the following:
Good research . . . I am going to concede that he maintained a connection with the colonies that extended through the 1776 Declaration.
However, that satisfies Ramsay's other requirements, but not 'inheritance' as a minor from his parents.
If he was adopted by extended family who did remain in America and maintained his estate until reaching the age of majority, then there was inheritance.
But, he didn't make that point. He relied solely on colonial heritage at birth, which is distinctly different from his 'adoption' and resulting inheritance of U.S. citizenship. If he worked with Benjamin Franklin, et al, that is a distinction giving him clear rights and maybe even an exemption to the five-year residency requirement.
Again, I can't argue against superior research. Really excellent.
Atticus finch,
ReplyDeleteI of II
I have an essay entitled, “James Madison’s Place of Birth As ‘the Most Certain Criterion’ of Allegiance Does Not Define an Article II ‘Natural Born Citizen,’” which I look to publish shortly. I will just give you a condensed version as my reply to your posts.
First, Madison’s soil criterion was used by our nation only to establish the status of a “Citizen” of the United States” for the first generation of Americans into which Smith fell. These were those the grandfather clause of Article II, Section 1, Clause 5 called “Citizen[s] of the United States, at the time of the Adoption of this Constitution.” As founder and historian, David Ramsay, eloquently explained in his 1789 dissertation on citizenship, birthright citizenship for those born after July 4, 1776 was reserved only for the children of the citizens. As I have shown in numerous of my essays, this fact is confirmed by, among other historical sources, Congressional and judicial activity which followed the Founding.
Second, Article II, Section 1, Clause 5 provides "natural born Citizen" of the United States and "Citizen" of the United States as two separate tests for eligibility. These are separate and distinct terms which must be given their own meanings. For births before the adoption of the Constitution, one could be a “Citizen” of the United States, and also satisfying the age and residency requirements, and be eligible to be President. But for births after the adoption of the Constitution, one must be a "natural born Citizen" to be eligible to be President, which requirement also extends to the Vice-President under the Twelfth Amendment. Hence, the issue with Obama is whether he is a "natural born Citizen" of the United States not whether he is a "Citizen" of the United States.
Madison was speaking in 1789 about the definition of a "Citizen" of the United States which was the status needed for eligibility to be a Congressman under Article I, Section 2, Clause 2. We know from Article II itself that such a "Citizen" is not necessarily a "natural born Citizen." The only issue that the Congress debated and decided was whether Smith had been a "Citizen" of the United States for 7 years which is the requirement of Article I, Section 2, Clause 2 for anyone wanting to be a Representative. The debate was not whether Smith was an Article II “natural born Citizen” of the United States. At that time, no adult in being of the Founding generation was a "natural born Citizen" of the United States.
Third, as I have shown in many of my essays, the new Constitutional Republic did not adopt the old English common law to define the new national citizenship but rather natural law and the law of nations which became American common law and part of the Laws of the United States” under Article III. There is nothing in Madison’s speech that suggests that he relied strictly upon the English common law. Moreover, even Smith himself, during the Congressional debate on whether he was a “Citizen” of the United States cited and quoted from Vattel and The Law of Nations and not the English common law to show that he had that national character.
Fourth, as to how certain soil allegiance is, that is a debatable point. Most of what I have read from the past suggests that it is parents and not soil that is a better gauge for allegiance. Even Lord Coke in Calvin’s Case (1608) recognized and confirmed that neither climate nor soil make a "natural born subject."
Continued . . .
II of II
ReplyDeleteFifth, the Constitution gave Congress the power to make uniform the naturalization laws. Congress, in its naturalization acts since 1790 to 1855 did not make any exception for children born in the United States. It simply said that any child of any person who naturalized would fall under the act. This is broad language and included also children that were born in the United States. If Congress meant to exclude children born in the United States from having to naturalize it surely knew how to do so by using simple language. Hence, Congress considered children born on U.S. soil to alien parents to be themselves aliens. See Secretary of State Blaine, February 1, 1890 (he drew no distinction between the children born in the U.S. and those born out of it if they were born to alien parents). Here we can see that for Congress, it was the citizenship of the child’s parents that controlled and not the place where the child was born. Congress did not even give controlling effect to the fact that the child might be born in the United States, considering that child an alien if his or her parents were not U.S. citizens and allowing that child to naturalize at the moment the parents naturalized if done before that child reached the age of majority and independently on his or her own if done thereafter or never done.
Sixth, a "natural born Citizen,” (not a “native” or “native-born citizen” as those words came to be confusedly used by our courts following Wong Kim Ark (1898)) as recognized and accepted in the United States since our Founding and confirmed in numerous cases of our U.S. Supreme Court (e.g. see Minor v. Happersett (1875)) and lower courts and as implicitly stated in all our citizenship and naturalization Acts of Congress, needs both birth in the U.S. and birth to U.S. citizen parents, for neither territory nor parentage are the “most certain criterion” alone when it comes to the eligibility requirement to be President.
For the foregoing reasons, reliance upon Madison's quote for a definition of a "natural born Citizen" of the United States is misplaced.
Puzo1 wrote: "Fifth, the Constitution gave Congress the power to make uniform the naturalization laws. Congress, in its naturalization acts since 1790 to 1855 did not make any exception for children born in the United States."
ReplyDeleteResponse:
The Naturalization Acts did not apply to children born in the United States of aliens parents for the simple reason that it only applied to foreign born persons.
"this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government.", Dred Scott v. Sandford, 60 US 393, 417 (1857).
Applying the rationale in the Dred Scott case, children born in the United States to alien parents were not born in a foreign country under a foreign government.
In his dissent in the Dred Scott decision, Justice Curtis understood that the naturalization acts were used to remove the disability of foreign birth when he observed:
"Among the powers expressly granted to Congress is "the power to establish a uniform rule of naturalization." It is not doubted that this is a power to prescribe a rule for the removal of the disabilities consequent on foreign birth. To hold that it extends further than this, would do violence to the meaning of the term naturalization, fixed in the common law, . . . It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth. Scott v. Sandford, 60 U.S. 393, 578 (Curtis, J,., dissenting) (internal citations omitted)
The Supreme Court Court in Zartarian v. Billings, 204 US 170(1907) noted that absent native birth in the United States, a child born overseas needed to be naturalized. "As Mariam was born abroad, a native of Turkey, she has not become a citizen of the United States, except upon compliance with the terms of the act of Congress, for, wanting native birth, she can not otherwise become a citizen of the United States. Her right to citizenship, if any she has, is the creation of Congress, exercising the power over this subject conferred by the Constitution." Id at 173
As such, Naturalization Acts had only applied to those of foreign birth and not to native born children of foreigners seeking to be naturalized.
Atticus finch,
ReplyDeleteYour argument is not persuasive.
First, the statement of the Dred Scott Court is dicta, for there is no in-depth analysis or support for what it said. Second, your argument fails to recognize that Dred Scott said that Congress could only naturalize the “foreign born” and hence had no power to naturalize someone born in the United States because the Court ruled that blacks were not citizens and therefore did not want Congress to have the power to naturalize them. Third, Congress can decide whether one is “foreign born” or not. From the text of the early naturalization acts, we can see that Congress considered children born in the United States to alien parents as “foreign born,” even though they were physically born in the United States.” Also, consider that American Indians, children of ambassadors, and children of invading armies have also been treated under our laws as “foreign born” even though born in the United States. Fourth, Congress surely did not agree with the Dred Scott Court when it said that it had no power to naturalize persons born in the United States, for it passed the Civil Rights Act of 1866 which declared all person born in the United States and not “subject to any foreign power” “citizens” of the United States. There is no power in the Constitution granted to Congress concerning citizenship other than naturalization powers. Hence, the civil rights legislation had to be grounded on Congress’s naturalization powers. Moreover, to drive home the point, Congress went further and even constitutionalized the Civil Rights Act of 1866 through the Fourteenth Amendment. Fifth, even after passage of the Fourteenth Amendment, Congress can not only utilize Section 5 of the Amendment to enforce the amendment, but it can also continue to exercise its naturalization power over persons born in the United States by telling us what “subject to the jurisdiction thereof” means.
Also, the Zartarian quote is misplaced. What the Court there said is that if one cannot show that he or she is a citizen from birth by being born in the United States and “subject to the jurisdiction thereof,” then citizenship can only be granted by Congress through a Congressional Act. But this does not mean that Congress does not have power to naturalize persons born in the United States. It only means that if one is not a “citizen” of the United States by birth in the United States, which automatically and without any further need for naturalization grants that national character upon a person from the moment of birth, then one to acquire such citizenship will have to rely upon a Congressional Act and comply with all its requirements.
So, Finch thinks that under Natural Law we are subjects at birth to a Monarch, a King, because we were born within his dominion.
ReplyDeleteWe, who read the Naturalization Act and the 14th Amendment correctly, inherited our U.S. citizenship by Natural Law through a U.S. citizen Father and Mother . . . or by action of Positive Law if one parent was an alien.
Soil and Climate may be part of Nature, but our culture and allegiance is acquired through our parents, not the King . . . or your favored analog to our government, an absolute monarch, the STATE.
Mario et al:
ReplyDeleteSeems that "our pal" (Doktor Con) aka Kevin Davidson over on O Conspiracy Theories (odd name) is on a kick to show that Spiro Agnew was not a nbC due to Daddy's not being naturalized before his birth. Of course what he presents is not well delineated but it does stir up the Flying Monkeys to flap both their wings and their mouths.
In his view this means all birthers are liars and creeps ... sorry to let you all know you are liars and creeps - but it must be true 'cause the Auburn U. arithmetic grad COULDN'T be wrong (could he??
Jayjay,
ReplyDeleteIt seems that the Obots have conflicting conclusions on Agnew father's naturalization date. Could someone check the data out and come up with a definite answer, if one exists. Your research results could be posted here.
Dr. Conspiracy's article with comments can be accessed at http://www.obamaconspiracy.org/2011/09/vp-agnews-parental-citizenship/
Mario,
ReplyDeleteThe below was posted on free republic.
http://freerepublic.com/focus/f-news/2743661/replies?c=13
Vice President Spiro Agnew's father, Theodore Spiros Anagnostopoulos, was born in Greece. Spiro Agnew was born in 1918 but his father was still listed as an "alien" in the 1920 U.S. Census.
The 1920 Census is a mistaken entry. The census taker even has his wife listed as an alien and she was born in Virginia!!! Census data isn't always that accurate.
Agnew's father was naturalized prior to September 12, 1918. This can be seen from his WWI draft card registration dated Sept 12, 1918. One of the fields checked off is that he was a naturalized US citizen. Agnew was born in November, so his father was a US citizen at the time of his birth.
Texoma,
ReplyDeleteExcellent work!
Just one thing, do not forget that Agnew's mother's birth in Virginia would not have guaranteed her U.S. citizenship if she married an alien. Before 1922, when the Cable Act was passed, a U.S. “citizen” woman who married an alien became herself an alien. Under those same prevailing laws, when the husband naturalized, the wife and their children became "citizens" of the United States.
U.S. v. Wong Kim Ark (1898) totally disregarded all this Congressional legislation and in its place filled up the pages of its decision with the old English common law and the dominion of the King. Wong Kim Ark has caused our nation to read these naturalization acts as though the acts did not apply to children born in the United States when the text of the acts showed that they did.
The pre-Cable Act naturalization statutes also applied to Chester Arthur's parents. His mother became an alien when she married her Irish husband which means that when Chester Arthur was born, he was born not only to an alien father but also to an alien mother. Under the then-prevailing naturalization acts, Chester Arthur was therefore born an alien. He became a "citizen" of the United States when his father naturalized when Chester was 14 years old. Clearly, Chester Arthur, like Obama, was not an Article II "natural born Citizen."
Regarding ObamaCare, the Virginia Federal District Court ruled that Obama’s health care law was unconstitutional. The 4th Circuit Court of Appeals in Virginia has just ruled that the State of Virginia does not have standing to challenge the law.
ReplyDeleteI hope that the 4th Circuit does not issue an order upon the State of Virginia to show cause why it should not have to pay for the Federal Government’s cost of defending an action and appeal in which the State of Virginia did not have standing like the 3rd Circuit Court did to me for having filed the Kerchner v. Obama/Congress appeal to the 3rd Circuit when as it ruled plaintiff also did not have standing. I also hope that the Obots will not be blogging about, among other things, how incompetent Virginia’s legal team was for losing the case on standing.
An article on the litigation and appeal entitled, Federal Judge Got It Wrong, Va. Lacks Standing to Challenge Health Care Reform, 4th Circuit Rules, can be read here:
http://www.abajournal.com/news/article/federal_judge_got_it_wrong_va._lacks_standing_to_challenge_health_care_refo/?utm_source=maestro&utm_medium=email&utm_campaign=daily_email.
@finch
ReplyDeleteSmith did not meet the 7-year residency requirement . . . unless you consider him a 'resident in absentia.' [sarcasm added]
He was given a 'pass' politically by a congress that had plenary power . . . but Ramsay was right.
@apuzzo
re: Cable Act
Google the book 'A Nationality of Their Own,' which has a chapter devoted to the Cable Act.
Several sagacious congressmen and legal authorities warned against the bill because it created dual nationality.
A better solution would have been a special statute in Aliens and Nationality for abandoned wives of alien husbands given a right to renounce the alien nationality and the husband and restoration of U.S. citizenship.
Wong Kim Ark wasa a travesty of jurisprudence on so many levels . . . the dissent by Ch. Justice Fuller and the U.S. attorney's brief are excellent sources. Jus soli is a convenient, albeit erroneous solution for lazy minds.
Attention Washington Times Subscribers & Readers: Send Letters to the Editor of the Washington Times Regarding Their 9 Sep 2011 Editorial
ReplyDeletehttp://cdrkerchner.wordpress.com/2011/09/09/attention-washington-times-subscribers-readers-send-letters-to-the-editor-of-the-washington-times-regarding-their-9-sep-2011-editorial/
CDR Charles Kerchner
ProtectOurLiberty.org