Tuesday, September 20, 2011

Having the Status of Birthright Citizenship Is Not Sufficient to Make One an Article II “Natural Born” Citizen

Having the Status of Birthright Citizenship Is Not Sufficient to Make One an Article II “Natural Born” 
                                                                      Citizen

                                                           By: Mario Apuzzo, Esq.
                                                             September 20, 2011

Horace Gray, Associate Justice
of the U.S. Supreme Court







I just read an article regarding a debate going on in Liberia about Presidential and Vice-Presidential eligibility requirements. The issue is whether the residency has to be immediately before the election. The article may be read at http://allafrica.com/stories/201109200851.html.

The President or Vice-President eligibility requirements in Liberia are: (1) being a natural born citizen 35 years or more, (2) 10 years residence in Liberia 10 years prior to elections; (3) owner of unencumbered real property worth not less than 25,000; and (4) President and Vice-President must not come from the same county.

Note that the Liberian Constitution even considers those acquiring the status of "citizen" after birth as "natural born citizens."

What struck me as interesting is that they treat their "natural born citizens" like the Founders and Framers treated plain "Citizens" of the United States (distinguished from "natural born" Citizens of the United States). What is also interesting is that Liberia considers a person to be a "natural born citizen" even if that status was not acquired at birth. Indeed, they have created a contradiction and oxymoron right in their own Constitution.

I suspect that Liberia is treating a "natural born citizen" just like the British treated their "natural born subject." For the British, who followed the feudal and monarchial system of subjectship with allegiance to a sovereign King rather than a true republican system with voluntary membership and allegiance to the sovereign nation and its people through free choice made by a child’s parents who then pass that decision to their children, it did not matter if one was truly a "natural born subject" or even a naturalized subject, for they considered all their subjects to be "natural born subjects," which conveniently for the King carried with it allegiance to the King for life.

The Founders and Framers did not adopt the same oppressive system for the constitutional republic. They rejected that a person was born into the allegiance of a King or any nation for life. They also rejected that one could be born with allegiance to more than one nation or later in life maintain multiple allegiance at the same time. Throughout the Constitution, they were careful to distinguish between a "natural born" Citizen of the United States and a "Citizen" of the United States. In their eyes, a “natural born” Citizen was born with sole and absolute allegiance and jurisdiction to the United States and its people. They gave Congress the power to add additional members to the new republic through naturalization, which could be granted to a person only if he or she swore or affirmed to have the same sole and absolute allegiance to the United States which a “natural born” Citizen acquired by nature at birth. So for the Founders and Framers, all the “citizens” of the republic, either by birth or naturalization, had sole and undivided allegiance and jurisdiction to the United States. Through this process, people could make a decision based on free will whether they first and then through them their children wanted to become members of the republic.

The Constitution gave Congress the power to make uniform the naturalization laws. Congress first exercised that power in 1790. The act of March 26, 1790, 1 Stat. 103, c. 3, provided for the naturalization of aliens and then provided that "the children of such persons so naturalized, dwelling within the United States, being under the age of twenty-one years at the time of such naturalization, shall also be considered as citizens of the United States."

The third section of the act of January 29, 1795, 1 Stat. 414, 415, c. 20, provided "that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization, and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States," etc.

The fourth section of the act of April 14, 1802, 2 Stat. 153, 155, c. 28, carried into the Revised Statutes as section 2172, was: "That the children of persons duly naturalized under any of the laws of the United States, or who, previous to the passing of any law on that subject, by the government of the United States, may have become citizens of any one of the said States, under the laws thereof, being under the age of twenty-one years, at the time of their parents being so naturalized or admitted to the rights of citizenship, shall, if dwelling in the United States, be considered as citizens of the United States."

The provision that children born in the United States to alien parents was carried in all of the following naturalization acts, including that of 1804, 1855, and the Civil Rights Act of 1866 which required that the child be born in the United States and not be “subject to any foreign power.” Given the world-recognized doctrine of jus sanguinis (also utilized by our own Congress in 1790 to make children born out of the United States to U.S. citizen parents “natural born citizens” and starting with 1795 “citizens of the United States”), the only way such a child could be born not subject to any foreign power was to be born in the United States to U.S. citizen parents or to parents who had long lost any foreign nationality who at that time were American slaves and their descendents.

As we can see, Congress, in all of these acts, 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.

From a reading of the text of these acts, we can see that only non-naturalized persons, i.e., person not acquiring citizenship under these Congressional Acts could be "natural born" Citizens. From this legislative history, we can see that the only persons not needing naturalization, i.e., not needing any positive law to acquire U.S. citizenship, were the children born in the United States to U.S. citizen parents. This is confirmed by, among others, the following historical and judicial sources:

(1) Emer de Vattel, The Law of Nations, Sec. 212 (London 1797) (1st ed. Neuchatel 1758):

"§ 212. Citizens and natives.

The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country."

(2) David Ramsay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) . He said that after July 4, 1776, birthright citizenship was preserved only for a child born to U.S. citizens. He defined the “natural born citizens” as the children born to citizen parents. Concerning the children born after the declaration of independence, he said that birthright “[c]itizenship is the inheritance of the children of those who have taken part in the late revolution; but this is confined exclusively to the children of those who were themselves citizens….” Id. at 6. He continued that “citizenship by inheritance belongs to none but the children of those Americans, who, having survived the declaration of independence, acquired that adventitious character in their own right, and transmitted it to their offspring….” Id. at 7; Finally, he said that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776….” Id. at 6.

(3) The Venus, 12 U.S. (8 Cranch) 253 (1814). Chief Justice John Marshall, concurring and dissenting for other reasons, cited Vattel and provided his definition of natural born citizens, and said: “Vattel, who, though not very full to this point, is more explicit and more satisfactory on it than any other whose work has fallen into my hands, says ‘The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives or indigenes are those born in the country of parents who are citizens. Society not being able to subsist and to perpetuate itself but by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights.’” Id. at 289.

(4) Dred Scott v. Sandford, 60 U.S. 393 (1857). Justice Daniels concurring cited Vattel and The Law of Nations and provided his definition of “natural born citizen” and removed Vattel’s references to “fathers” and “father” and replaced them with “parents” and “person.” He stated: “The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As society cannot perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their parents, and succeed to all their rights.” Again: I say, to be of the country, it is necessary to be born of a person who is a citizen; for if he be born there of a foreigner, it will be only the place of his birth, and not his country. . . .”

(5) Minor v. Happersett, 88 U.S. 162 (1875). Even though the Fourteenth Amendment had already been passed, Minor did not rely upon that amendment to define either a “natural born Citizen” or a “citizen.” Rather, it applied the “common-law” definition of those terms. Providing the same Vattelian definition without citing Vattel, and not in any way referring to the English common law, it held:

“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. 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.”
Id. at 167-68.

Minor did not cite Vattel but as can be seen the Court’s precedential definitions of a “citizen” and a “natural-born citizen” are taken directly out of Vattel’s The Law of Nations, Section 212. Hence, when Minor said “common-law,” it was not referring to the English common law but rather to American common law which had its basis in citizenship matters in natural law and the law of nations. Minor also distinguished between “natural-born citizens” and “citizens.” When Minor spoke of the “common-law,” it referred to the “citizens” and the “natives or natural-born citizens,” explaining that there never had been any doubts that the children born in the country to “citizens” were the “natives or natural-born citizens.” So Minor concluded that any person who was a “natural-born citizen” was necessarily also a “citizen.” The Court, was not, however, willing to say that a child born in the country to parents who were not U.S. citizens was even a “citizen” under the Fourteenth Amendment, let alone a “natural-born citizen” under Article II. The Court added that “there have been doubts” as to whether that child was even a “citizen.” Having decided that such a child was not a “natural-born citizen,” it left the question of whether such a child was a “citizen” of the United States under the Fourteenth Amendment to another day.

It is important to understand that if the English common law prevailed in the United States to define national citizenship, the Court would not have stated that “there have been doubts” whether children born in the country to alien parents were citizens. Under English common law, there was no doubt that such children would have been “natural born subjects,” for under that law the citizenship of the parents was not a factor in determining subjectship when the child was born in the dominion of the King.

So as we can see from this case law, and especially from the precedential definition confirmed by Minor, a “natural born Citizen” was well-defined. All other persons not falling under the well-established American “common-law” definition of a “natural born Citizen,” who wanted to be "citizens" needed a Congressional Act (positive law) to gain membership in the United States which we call naturalization. And these latter persons became so naturalized either at birth or after birth only by Congress.

(6) All this continued unchanged until the U.S. Supreme Court, per Justice Horace Gray--who was appointed to the Supreme Court by President Chester Arthur whom history has recently shown was not a “natural born” Citizen (see the legal research of Attorney Leo Donofrio at http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/ )--decided the famous case of U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). The question that Minor did not answer was answered by Wong Kim Ark, in which the United States argued that a child born in the U.S. to alien parents was not a “citizen” of the United States either under the Civil Rights Act of 1866 or the Fourteenth Amendment which had been adopted in 1868. Ruling against the government, Wong Kim Ark declared a child born in the country to domiciled alien parents to be a “citizen” of the United States under the Fourteenth Amendment.

Wong Kim Ark applied the Fourteenth Amendment and colonial-era English common law to determine whether a person born in the United States to domiciled alien parents was a “citizen” of the United States under that Amendment. With the Wong Kim Ark decision, even the judicial branch of government, like Lord Coke did in Calvin’s Case (1608), naturalized a person at birth. By doing so, it went beyond what as we have seen above Congress had always expressed in its naturalization statutes was a born “citizen” of the United States and expanded that "citizen" class. Indeed, Wong Kim Ark did not change the definition of an Article II “natural born Citizen.” Rather, it created another class of born "citizens," those born in the United States to one or two alien parents. Congress had never considered these children to be born “citizens” of the United States. Rather, Congress had always required that these children naturalize, either derivatively when their parents became citizens if done before the child’s age of majority or on their own if done thereafter. These born “citizens” do not meet the definition of a "natural born" Citizen but because of the Wong Kim Ark decision are nevertheless granted a birthright citizenship through naturalization at birth. By naturalizing Wong at birth, the Wong Kim Ark decision, like Congressional Acts which also naturalize children at birth, also created the anomaly that these children are born with allegiance and jurisdiction to the United States and to the nations of their alien parents (through jus sanguinis citizenship), but are not despite our citizenship history required to give an oath of sole allegiance to the United States.

Hence, we now have three birthright citizenships, (1) one under Article II which gives the national status of "natural born Citizen" of the United States, (2) another under the Fourteenth Amendment, Wong Kim Ark, and 8 U.S.C. Sec. 1401(a) which gives the national status of born "citizen" of the United States to person born in the United States to one or two domiciled alien parents and “subject to the jurisdiction thereof,” and (3) another under Congressional Acts (8 U.S.C. Sec. 1401et seq.) which also gives the status of born “citizen” of the United States to children born out of the United States to one or two U.S. citizen parents. But because the Founders and Framers distinguished in Article II’s grandfather clause between “natural born” Citizens of the United States and “Citizens” of the United States (prior to the adoption of the Constitution, one could be a “Citizen” of the United States and be eligible to be President but for those born after its adoption, one had to be a “natural born” Citizen”), only a person who has Article II "natural born" Citizen status is eligible to be President. This means that only a person who was born in the United States to two U.S. citizen parents is eligible to be President.

This all brings us to putative President, Barack Obama. If Obama was born in Hawaii (a fact that he has yet to conclusively prove) and if his parents are Barack Obama and Stanley Ann Dunham (it is reported that these are his parents), he can be a Fourteenth Amendment and 8 U.S.C. Section 1401(a) born “citizen” of the United States, but he cannot be an Article II “natural born Citizen” of the United States which is the constitutional standard that he must meet to be eligible to be President and Commander in Chief of the Military. His mother, Stanley Ann Dunham, was a “citizen” of the United States at the time of Obama’s birth. But his father, being born in 1934 or 1936 in what was then the British colony of Kenya, was under the British Nationality Act of 1948, a Citizen of the United Kingdom and Colonies (“CUKC”). Obama himself by right of decent from his father under the same Act was also born a CUKC. Hence, because Obama was not born in the United States to United States citizen parents, he was not born under the sole and undivided allegiance and jurisdiction of the United States. Obama was not born with sole citizenship in the United States. Consequently, he was not born with unity of allegiance to and citizenship in the United States. Obama, therefore, cannot be an Article II “natural born Citizen” and is not eligible under Article II, Section 1, Clause 5 to be President and Commander in Chief of the Military, just as much as if he had not been at least 35 years of age or 14 years a resident of the United States.

Mario Apuzzo, Esq.
September 20, 2011
http://puzo1.blogspot.com/
####

Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved

39 comments:

jayjay said...

Why should ne not, then, be declared as found by Congress to have "... failed to qualify ..." for the office under the XX Amendment??

Send him back to HI of Kenya (or Boston) along with his other scofflaw relatives here illegally.

paraleaglenm said...

Wong Kim Ark is 'settled law,' but should one 'follow' it?

The 'quality' of Horace Gray's reasoning and jurisprudence is highly questionable vis-a'-vis his own contradictory stare decisis in Elk vs. Wilkings, case law precedent cited by Chief Justice Fuller in his dissent, and the well-reasoned U.S. Attorney brief submitted to the Ark court.

In addition, the fact pattern of Calvin's Case is not dispositive, and the 1790 Naturalization Act et seq through 1855, mis-cited by Gray, contradicts Gray's departure from that statute.

Furthermore, Gray violated not only Article I, Sec. 8, which he admitted by conceding congress had plenary power over naturalization law, but that very precept as written into the 14th Amendment in Section 5.

Therefore, from this moment onward, please refer to the jus solis citizenship at birth 'Grey Law,' not '14th Amendment' law. Follow it if you will, but at your own risk, Cf. Ninth Circuit Court precedential value.

Doublee said...

The key phrase in the 14th amendment is "subject to the jurisdiction thereof."

When the phrase is applied to the preceding clause and it is applied to each part, we then have:

All persons born in the United States, and subject to the jurisdiction thereof...
or
All persons naturalized in the United States, and subject to the jurisdiction thereof...

The first construction make sense. There are two requirements placed on "born" citizenship: birth on U.S. soil and being born subject to the jurisdiction of the U.S.

The question is, "What does it mean to be subject to the jurisdiction of the government?" Even legislation has used the same phrase without any clarification.

There has been much debate on the meaning of the phrase. Has the debate ever been settled in the legal sense?

I have a problem with making a baby born to parents who are here as tourists a U.S. citizen. The baby will be brought back home not as a full citizen of his parents' country, but as a baby saddled with dual citizenship.

The second construction makes no sense. Is it possible to be naturalized in the U.S. and not be subject to its jurisdiction?

Kat7 said...

"Wong Kim Ark is 'settled law,' but should one 'follow' it?"

Of course because IT IS "SETTLED LAW".

Does OPINION now trump "settled law"?

Kat7 said...

"Wong Kim Ark is 'settled law,' but should one 'follow' it?"

Yes because IT IS "settled law".

When does OPINION trump "settled law"?

Puzo1 said...

Kat7,

There are two problems with your comment. The first problem is that we have to ask ourselves "settled law" as to what. You have not provided your unstated conclusion on that. Also, please note that Wong Kim Ark cited and quoted Minor's definition of a "natural-born citizen." Am I to take your comment to mean that we have "settled law" as to what the definition of a "natural-born citizen" is which Minor said was a child born in the country to citizen parents?

The second problem is that our Supreme Court is not bound by "settled law." There are many examples in our judicial history but I think just one will make my point. Plessy v. Ferguson, 163 U.S. 537 (1896) became settled law that racial segregation in private business was constitutionally allowed under the doctrine of separate but equal. But did the U.S. Supreme Court in Brown v. Board of Education of Topeka, 347 U.S. 483 (1954), follow that "settled law" when it held that separate is not equal? We know that the answer is "no," for it no longer followed that "settled law."

Frank Davis said...

Apuzzo,

I don't think that you're going to believe me on this point...but what I'm telling you is essentially first term law school stuff. Reading of case law is completely different from other types of reading, and discerning the holding requires asking the question whether or not the discussion is essential to the holding.

Opinions contain many discussions that aren't part of the holding, and therefore not controlling. They may be quite persuasive, but they are not controlling.

Whether or not Minor was a citizen was disposed of by the Fourteenth Amendment. That was not the important issue. The important issue was what rights were available to citizens under the Constitution historically - which is where the various discussions of citizens come in.

This part of the holding is what was actually overruled by the Nineteenth Amendment.

However, the definition is a good one, but merely part of the Court's dicta. If you cannot show that the definition of minor as a NBC was NECESSARY for the court to reach its holding, then it is part of dicta.

Rights given to NBC is not necessary because the only issue is what rights are associated with citizenship.
'
The only way that the definition of NBC would be part of the holding would be if after the decision courts would need to determine whether one was a NBC to find out whether they had Fourteenth Amendment rights violated.

As this is clearly not the case - it is dicta.

Please show how it is necessary .

(2) The problem with your charge of dishonesty is that it does not matter why you bring it up. The COURT stated that the definition of NBC was decided regardless of the parent's status. It based it on common law, and contradicted Vattel.

It undermines your one extrajudicial source - and demonstrates that courts firmly stated NBC Article II definitions well outside what you claim they are...and these statements were made by courts that you cite.

bdwilcox said...

Doublee,

This is a good place to start to see the intent of the 14th Amendment from its authors. There's much more material in the Congressional Record, but this will give you a good overview of what was meant by "subject to the jurisdiction thereof" from the very men who wrote it.

Remember that the primary proponent of the 14th Amendment was John Bingham (the "father of the 14th Amendment") in the House; Jacob Howard was his counterpart in the Senate.

You can see a further analysis of how the 14th relates to Obama on Leo Donofrio's blog here.

Kat7 said...

"Am I to take your comment to mean that we have "settled law" as to what the definition of a "natural-born citizen" is which Minor said was a child born in the country to citizen parents?"

Yes am I mistaken in that perception?
Seems pretty “settled” to me since the last SCOTUS ruling was 119 years ago.

When I went to school parents meant plural.
I admit that was long before Clinton argued “it” actually meant something other than “it” and many accepted that.

I believe the clear definition of "natural born citizen" is provided by congressional records in statements by John Bingham 1862 and 1866.

I don't know but to the lay person like me with no legal expertise when Bingham said “[I] find no fault with the introductory clause [S 61 Bill], which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of PARENTS not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen…. . . ”
I figured he was articulate enough to say what he meant and mean what he said.

Cut and dry for me?
Pretty much.

When I went wading through
The Venus, 12 U.S. 8 Cranch 253 253 (1814)
Shanks v. Dupont, 28 U.S. 3 Pet. 242 242 (1830)
Minor v. Happersett , 88 U.S. 162 (1875)
United States v. Wong Kim Ark, 169 U.S. 649 (1898)

I figured that was simply confirming icing on the cake.
Your article even adds another confirming layer to the study.
BRAVO and thank you :)

Clearly none of this is the perception of those who want to sidestep the Constitution on this matter.

I suppose it could be argued that Bingham mistakenly meant parent instead. That probably would fly as well as Clinton's “it” argument with cognitive thinkers :)

The fact that NO ONE in congress is willing to address this issue makes it clear exactly how corrupt this government is today.

Carlyle said...

What amazes me the most is that if someone had pondered the definition of NBC 10 or 20 years ago - when the answer would have no immediate consequences - the answer would have been clear even to the thickest of dolts.

In fact, since the Founders put it in there as a restrictive and protective measure, if there is even the slightest doubt, it is prudent to come down on the side of safety.

All the yammering and convoluted pretzel-logic of today is for the sole purpose to trying to pretend that Duh Won is legitimate.

Further, when the dust settles, it will be clear that all this is fussing over minutiae in that he is likely not any type of a citizen at all, let alone NBC.

He would never have been elected in the first place if the mainstream media had even remotely done their job. There were serious serious questions about his background as early as mid 2008 and probably much sooner. Regular people across the land, were lulled into a stupor because they believed that if there were anything to these issues the media and the other side would have been digging harder.

"I'm sure if something were really wrong, somebody tell us."

How do we fix THIS problem so it never happens again???

Puzo1 said...

Frank Davis,

I of III

1. You might have learned in your first year of law school the definition of a holding, but your surely did not learn how to read a case and how to argue consistently and without contradicting yourself. Now you have a new approach. Let me help you by putting your argument in the logical order in which you wished you would have presented it.

“The important issue was what rights were available to citizens under the Constitution historically - which is where the various discussions of citizens come in.”

“Rights given to NBC is [sic] not necessary because the only issue is what rights are associated with citizenship.”

“The only way that the definition of NBC would be part of the holding would be if after the decision courts would need to determine whether one was a NBC to find out whether they had Fourteenth Amendment rights violated.”

“Whether or not Minor was a citizen was disposed of by the Fourteenth Amendment.”

Now let me help you with how you wished your conclusion read: Given that one does not have to be a “natural born” Citizen in order to enjoy privileges and immunities under Article IV and the Fourteenth Amendment but only needs to be a “citizen,” Minor’s definition of a “natural born” citizen is dicta because it was not necessary for the Court to analyze and discuss that status when it set out to determine whether Virginia Minor was entitled under the privileges and immunities clause to the right to vote and to due process and equal protection of that right under the Fourteenth Amendment.

Now that I have clearly stated what you wished you said, let me educate you on what you are up to now and show you where you are wrong.

What You Are Up To

In your earlier posts you said that the Court’s discussion on citizenship was not essential to the Court’s decision and therefore dicta. I have proven you wrong in making this statement. Since I have proven you wrong when you said that the Court’s treatment of the citizenship issue was not essential, now you take a different approach. Now you concede that “discussions of citizens” was essential. But now you attempt to distinguish between an Article II “natural born” Citizen and a Fourteenth Amendment “born” citizen and say that the Court did not need to discuss the former but only the latter. Therefore, whatever the Court said about a “natural born” Citizen is dicta.

Why You Are Wrong

First, in order for you to make your argument that Minor only needed to define a Fourteenth Amendment born “citizen” and not an Article II “natural born” Citizen, you are now conceding that there is a distinction between the two types of citizens. Thank you for reading my essays and agreeing with me.

Second, the Fourteenth Amendment cannot save you. Minor did not decide whether Virginia Minor was a “citizen” by relying upon the Fourteenth Amendment. It specifically told us that the Fourteenth Amendment was not needed to bestow citizenship upon Virginia Minor. If the Court had relied upon the Fourteenth Amendment to find that Virginia Minor was a “citizen,” then the Court would have had to mention the “subject to the jurisdiction thereof” clause, define what it meant, and apply that definition to Virginia Minor. The Court did no such thing which tells you it did not rely upon the Fourteenth Amendment for her citizenship. Rather, Minor relied upon American “common-law” to declare that Virginia Minor was a “natural-born citizen” and a fortiori also a “citizen.” That common law did not speak of “jurisdiction.” Rather, that common law relied upon the parents and their citizenship as the agent which bonds the child to the nation in which he or she is physically born (there cannot be any stronger bond than that) and not any concept of jurisdiction.

Continued. . .

Puzo1 said...

II of III

Third, whether or not we need to know that someone is a “natural born” Citizen in order to enforce the Fourteenth Amendment is irrelevant to the question of whether Minor gave us a precedential definition of an Article II “natural born” Citizen. Minor defined citizenship as it understood it at that time. It defined that citizenship which the Court believed would give someone the status needed to be able to claim privileges and immunities under the Constitution. The Court told us that after the “original citizens” who came into being during the Founding, additional citizens could be made either by birth or naturalization. There was no question that Virginia Minor was not a naturalized citizen. Hence, the only other way she could have been a “citizen” of the United States was by birth. The Court realized that the only birthright citizenship that existed at that time was birth in the country to citizen parents. Hence, the Court gave us that definition as the meaning of a “natural born” Citizen and applied it to Virginia Minor to also declare her a “citizen” which was the status needed to be entitled to privileges and immunities under Article IV and the Fourteenth Amendment.

Minor said that the Fourteenth Amendment was only declaratory of existing law. Hence, what Minor also shows is that there was no difference between an Article II “natural born” Citizen and a Fourteenth Amendment born “citizen.” This conclusion also follows from the fact that the Civil Rights Act of 1866, the precursor to the Fourteenth Amendment, said that one was a “citizen” if born in the United States and “not subject to any foreign power.” In effect, what the Act defined was, like the Fourteenth Amendment, a “natural born” Citizen. Also, the equivalence between an Article II “natural born” Citizen and a Fourteenth Amendment “born” citizen had already been established by the U.S. Supreme Court in The Slaughter House Cases (1872) (“‘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”); and Elk v. Wilkins (1884) (a born citizen under the Fourteenth Amendment owes "no allegiance to any alien power").

What I have explained in my essay is how U.S. v. Wong Kim Ark (1898) created a new “born” citizen under the Fourteenth Amendment. For the first time in our nation’s history, we now had a “born” citizen who was born in the United States, but not to two U.S. citizen parents. Hence, we now had a “born” citizen who was born subject to a foreign power by being born to one or two alien parents. What I have also explained is that this new “born” citizen, not being born within the full and complete allegiance and jurisdiction of the United States, was not a “natural born” Citizen.

What this all means is that Minor defined a “natural born” Citizen because that was the only “born” “citizen” status that it could define. That was the status that it believed one had to have in order to be a “born” citizen and therefore have the citizenship status needed to qualify for the privileges and immunities of the Constitution. Minor’s discussion and definition of a “natural-born citizen” and the application of that definition was therefore an essential part of its reasoning and decision on whether Virginia Minor had the right to vote and is therefore not dicta but rather a holding.

Continued. . .

Puzo1 said...

III of III

2. I cited Lynch v. Clark (1844) 1 Sandf.Ch. 583 (1844) on the issue of whether women are eligible to be President since you implied that women were not so eligible. I have written extensively on this blog on Lynch and will not do so again at this time. Suffice it to say that Lynch was a state law case that did not deal with political rights but rather with state property rights. At that time, New York did not have any statute that defined citizenship and so the court applied the old English common law. The New York Legislature in 1860 overruled Lynch:

Political Code of the State of New York (1860)

Sec. 5. The citizens of the state are:

1. All persons born in this state and domiciled within it, except the children of transient aliens and of alien public ministers and consuls;
2 All persons born out of this state who are citizens of the United States and domiciled within this state.

Lynch’s parents were “transient aliens.” Hence, under this statute, Lynch would not have been a citizen of New York. Before the Civil Rights Act of 1866, a person was a citizen of the United States only if he or she were first a citizen of a State. If the children of transient aliens were not even considered citizens of a state, they surely would not have been considered “natural born” Citizens of the United States.

Finally, Lynch’s definition of a “natural born” Citizen was also overruled by the U.S. Supreme Court in Minor v. Happersett (1875), which said that a “natural-born citizen” was a child born in the country to U.S. citizen parents. Lynch had said that parental citizenship was not relevant. The last time that I looked, the U.S. Supreme Court trumps a state court decision. So it looks like my “extrajudicial source” Vattel was right and your Lynch (which you have the nerve to call “courts” in the plural) was wrong.

John Quincy said...

"He would never have been elected in the first place if the mainstream media had even remotely done their job."

I often hear this style of refrain. While it is true, it is the Oath sworn duty of Congress to ensure that only the eligible are sworn into Office. That is where the Responsibilty rightfully lays. And where it is derilict.

paraleaglenm said...

1) If you say Minor’s citizenship was determined by the 14th Amendment, that may be almost as bad as solely relying on Minor’s so-called “dicta” to define NBC. The judiciary is less reliable in determining citizenship than legislated act. [Cf. the Schneiderman case (1844), where the court abrogates Art I, Sec 8 to force the unlawful naturalization of an avowed communist activist.] As Mr. Apuzzo stated, Minor relied on both the common law and legislated act to back up who was a citizen.

2) Minor’s declaration that it was ‘without doubt’ that the child of two U.S. citizens is a natural born citizen is not an analysis, but a restatement of the obvious. It needs no proof, for it falls within the realm of common knowledge. I believe that ‘common knowledge’ as applied towards NBC in Minor is of a higher level of reliability than dicta, i.e., Judicial Notice.

3) Mr. Apuzzo’s analysis in ‘II of III’ is priceless, and his dismissing of Lynch in ‘III’ icing on the cake, so to speak.

Otherwise, this is the kind of discussion that should be taking place in the greater media . . . and those citizens such as Kat7 who have done their due diligence can refine their understanding.

Carlyle said...

John Quincy - You are of course correct. But the fact that the people made an ill-informed decision (because the MSM did not properly inform them) caused an almost unsolvable political problem for the congresspeople and electors. One could hope that said authorities had the cojones to do what was right, but at best cries of racism and at worst likely national scale riots certainly had to temper their judgment. I maintain that the MSM is the PRIMARY culprit. The correct time to nail this problem, and the only politically palatable time, would have been well prior to the primaries. Once the ball got rolling beyond that, it was impossible to stop.

Mario - Thank you for publishing my acerbic post. After I submitted it I can see how the phrase "arguing about minutiae" could have been read as offensive to you and others. Please accept my apologies and know that I did not mean it that way. You guys are heros and doing the right thing. I only meant that whether or not he is a NBC may turn out to be secondary in that I believe he is not a citizen at all.

We know for sure that he should have lost American citizenship as a result of his adoption in Indonesia. And we know there is no record of him ever gaining it back. We further know that his SSN and Selective Service are cocked up in a way that would have not been necessary for any real citizen. And then all the secrecy. His published works already have enough facts to prove he is not NBC, so what is he hiding? And finally, what about that bizarre adoption into that Indian tribe? There is no other explanation that makes sense except as how he was trying to cover his a$$ by trying to finesse some kind of citizenship.

Many of us are stressed with great fear and concern that Zero is clearly not a NBC and may have foreign allegiances. But it is unclear whether there are a critical mass of us. But imagine the uproar and outrage when everybody finds out he is no kind of citizen at all!

This, I fear is the Big Secret. And one which could very well have MAJOR future and retroactive consequences.

Doublee said...

Re: bdwilcox

I found the links quite informative. The bottom line is that there is no such thing as birthright citizenship, and this leads to the conclusion that there are only two classes of citizenship.

Both classes presume that your allegiance is to the United Staes.

A natural born citizen is born with a natural allegiance by virtue of both parents being citizens.

A naturalized citizen becomes a citzen by virtue of his swearing allegiance to the United States.

Puzo1 said...

Doublee,

My suggested correction to your comment:

"A naturalized citizen [after birth] becomes a citzen by virtue of his swearing allegiance to the United States.

Puzo1 said...

To my readers,

Some readers may still wonder if both putative President, Barack Obama, and U.S. Senator, Marco Rubio, are Article II “natural born” Citizens under the Fourteenth Amendment (1868) and U.S. v. Wong Kim Ark (1898).

In addition to the briefs and petitions that I have submitted to the federal courts in the case of Kerchner v. Obama/Congress which went up to the U.S. Supreme Court, I have written extensively on the Fourteenth Amendment and Wong Kim Ark at this blog. Among the many writings that I have provided on this amendment and Wong Kim Ark, you might want to read my July 14, 2009, essay entitled, Neither the 14th Amendment nor Wong Kim Ark make one a Natural Born Citizen , accessed at http://puzo1.blogspot.com/2009/07/neither-14th-amendment-nor-wong-kim-ark.html.

Here is another essay I wrote on September 8, 2009, entitled The Natural Born Citizen Clause of Our U.S. Constitution Requires that Both of the Child’s Parents Be U.S. Citizens At the Time of Birth , accessed at http://puzo1.blogspot.com/2009/09/natural-born-citizen-clause-requires.html.

You might also want to read my latest essay of September 20, 2011(this thread), in which I discuss “natural born” Citizen status before and after Wong Kim Ark. The essay is entitled, Having the Status of Birthright Citizenship Is Not Sufficient to Make One an Article II “Natural Born” Citizen , and can be accessed at
http://puzo1.blogspot.com/2011/09/having-status-of-birthright-citizenship.html.

All this shows, among other things, that Article II, Section 1, Clause 5 presents a different citizenship standard than does the Fourteenth Amendment as applied by Wong Kim Ark and subsequent courts. A “natural born” Citizen under Article II continues to be a child born in the United States to two U.S. citizen parents. A “born” citizen under the Fourteenth Amendment is a child born in the United States and “subject to the jurisdiction thereof.” The modifier “natural born” is more exacting than the qualifier “subject to the jurisdiction thereof,” for under judicial interpretation the latter is satisfied by merely being born subject to our laws which is even achieved with birth of a child in the United States to one or two alien parents who are not serving in any diplomatic capacity or part of any invading army, while the former is only achieved with birth in the United States to two U.S. citizen parents. In short, while Wong Kim Ark can make putative President, Barack Obama (if Obama was born in Hawaii to a U.S. citizen mother and a non-U.S. citizen father), and Senator, Marco Rubio (if Rubio was born in Florida to two-non-U.S. citizen parents), Fourteenth Amendment “born” citizens, it does not make them Article II “natural born” Citizens.

paraleaglenm said...

You said: "A naturalized citizen [after birth] becomes a citzen by virtue of his swearing allegiance to the United States."

There is a court case supporting this when a judge, relying on 'two types of citizens, born or naturalized, defined 'naturalized' as a citizen by formal oath of allegiance.

But what about a child born with dual nationality? Doesn't that child rely on 'positive law' in order to determine which nationality has jurisdiction?

The inchoate nationality, i.e., without jurisdiction, may linger in the minor child until he reaches the age of majority, when naturalization law once again is applied to permanently remove one nationality, or the other.

In English law, a foreign born child of a British subject may acquire jus soli citizenship, but British law, since 1722, recognized the father's right to preserve British nationality to the foreign-born child.

This disproves the Obot's claim that jus soli is THE principle determination of nationality. Jus soli is limited to place, and if a sovereignty offers that form of feudal nationality. However, jus sanguinis is unencumbered by borders or law as it relies solely upon the natural flow from the father.

Therefore, the shortsighted judge would have been more accurate defining a naturalized citizen as one 'dealienaged' by naturalization law, versus a natural born citizen, i.e., without alienage.

Obviously, a child cannot physically or lawfully enter into an oath, but may acquire nationality by naturalization law nonetheless.

Carlyle said...

Now you are getting really close to the heart of a great matter. The 14th Amendment is the worst thing to ever happen to the constitution. Not that some of its intentions and results were not good, and even necessary, but what a mess was made of it.

First of all, it inverted the constitution in one quick blow. The constitution being the charter for creating and running the Federal Government, how does it make any sense to now use this precious document to have the Federal Government dictate to the States and the People? But that is a whole long topic worthy to occupy many blogs and many textbooks.

Germane to the exact point at-hand, let us focus on Citizenship. After the war and after emancipation what was needed? A clear definition and a way to force the recalcitrant entities to free the slaves and give them Citizenship. And not some kind of secondary are alternate Citizenship but the exact same kind as free white people had. A majority of the words of the 14th Amendment are focused on that purpose.

In the interpretation and application of this Amendment, it must be kept in the foreground at all times that the purpose was to fix an instantaneous and urgent problem. It was not the purpose (in fact contrary to the purpose) for new types of citizenship to be created. In retrospect it is easy to see that if one were successful in legitimizing and "citizenizing" all the slaves, then their descendants would forever be treated just like the free white people had been treated for generations. That is all that was needed.

In fact, I will go so far as to say that any proper interpretation of the 14th Amendment would clearly recognize the "one time good deal" nature of the Citizenship aspects and would eschew trying to twist the words or concepts into some sort of prolonged change to Citizenship Law.

As part of the great "restore the constitution" movement, we need to insist that ALL amendments, and most especially the 14th, be interpreted properly. Another laudable goal would be to repeal and/or rewrite the most troublesome Amendments. But I believe this will never happen because the whole process would implode on itself (i.e. "backfire") and that more trouble would be created than eliminated. But that makes it even more imperative to campaign on behalf of better interpretations.

My insistence is that "better" primarily mean two things: 1) Stronger recognition and understanding of the context and intent of the various Amendments, and 2) Restoring the scope and range of the Constitution to be a charter for the Federal Government. This latter, in particular, means that we will have to create a new mechanism to interpret the constitution and enforce it. Having one part of the Federal Government be the final say makes no sense. How can a chartered body police itself? In corporation terms that many can understand, the Federal Government can indeed perform "internal audits" on itself, but ultimately the final authority has to be an entity outside the Federal Government, accountable to the chartering body.

Bottom line: The proper interpretation of the 14th Amendment should have no bearing whatsoever on any citizenship issue at this point in time. It especially provides no relief to the "Obama Problem" at all.

Puzo1 said...

paraleaglenm,

You will note from reading Vattel Sections 211-233 that he did not provide for any right of election as belonging to any "natural-born” citizen. He did in Section 212 say that such a citizen could decide upon reaching the age of majority if he or she wanted to remain a member of the society in which he or she was born and which he or she inherited from his or her parents. But this was not a right of election because it was not necessitated by having dual allegiances, but rather by one's desire to quit one society and join another. Minor v. Happersett (1875), which defined a “natural-born” citizen, also did not speak about any right of election when defining the term.

Because of decisions such as U.S. v. Wong Kim Ark (1898), which institutionalized dual allegiance and nationality at birth in the United States, the need then arises for a child born with such dual allegiances and citizenships to make an election as to which allegiance and citizenship he or she will pursue as an adult. We did at one time utilize the right of election upon reaching the age of majority. It was, however, done away with.

So now we have children born with dual allegiances and citizenships who, unlike our “natural born” Citizens and naturalized citizens, never in life give an oath to be solely loyal to the United States. The fact of being born with dual allegiances tells us that none of these "born" citizens can be "natural born" citizens. After all, how could nature alone produce a person who is born with allegiance to more than one society? To say that it could is like saying that a child could by nature alone have more than one natural father or natural mother. Hence, “natural born” Citizens never need the right of election to chose between which of two or more societies in which they were born they will give their allegiance.

paraleaglenm said...

The question is, then, 'Did Obama, born with British nationality, have a right of election?'

1) Obama's Kenyan and British nationality expired, the British nationality in 12 months, and with Kenyan independence.

This, however, was from the action/inaction of his father. Obama's natural allegiance to his father never expired. In fact, British law did give Obama the right to apply for 'citizenship by descent' once reaching the age of majority.

2) Obama, as Barry Soetoro, became an Indonesian citizen upon Dunham's marriage and relocation in Indonesia, by derivative of a minor due to the parent's action.

Under U.S. law, if Obama had NOT maintained 'continuous' U.S. residency for a period of five years between the ages of 14 and 23, Obama's U.S. 'citizenship at birth' would have expired in favor of his Indonesian citizenship.

Did Obama consciously 'elect' U.S. citizenship? He continued using his Indonesian passport, but the courts have dismissed this as allowable as a matter of "convenience."

At age 19, by pure accident of residency in the U.S. for schooling while living with his grandparents and on college campus, Obama's U.S. citizenship was preserved.

Therefore, the question is if Obama had 'alienage' at birth, which could influence his allegiances upon applying for candidacy to the presidency.

The answer is, 'Yes, . . . he had alienage. That alienage was removed by various naturalization laws.

SaipanAnnie said...

Frank Davis said:
I don't think that you're going to believe me on this point...but what I'm telling you is essentially first term law school stuff.

I wonder why you choose to pair Mr. Apuzzo's 'disbelief' of what you propose on this blog with a 'scolding'. Do you really hold that Mr. Apuzzo is defective in his comprehension of the law?

From your establishment of various synthetic identities here, I sense the opposite to be true. I sense you fear his insight, and his wisdom - compelling you to return again and again, in an attempt to silence him 'by any means necessary'.

Well, here's what may be news to you, sir: Truth endures. So does Integrity.

If you had an ounce of sense, what you would take away from these discussions is respect for those who dedicate their lives to decency.

And you'd do your darndest to emulate - not quell - them.

cfkerchner said...

Linda Jordan, U.S. Citizen and Employer of Putative President Barack Obama, sends an E-Verify system Failure Notice Letter to Putative President Barack Obama, employee:
http://cdrkerchner.wordpress.com/2011/09/25/linda-jordan-u-s-citizen-and-employer-of-barack-obama-sends-a-e-verify-system-failure-notice-letter-to-barack-obama-putative-employee/

CDR Kerchner (Ret)
http://www.protectourliberty.org

Puzo1 said...

paraleaglenm,

Minor v. Happersett (1875) defined an Article II “natural born” Citizen by examining American common law on national citizenship (which was not British common law on subjecthood) that prevailed during the Founding. U.S. v. Wong Kim Ark (1898) defined a Fourteenth Amendment “born” citizen under the English common law that prevailed during the Founding. If we were to apply that English common law to when Obama Sr. was born, we would see that a person born in Kenya at a time when the country was a British-occupied colony and therefore part of the dominion of the Crown was a British “natural born subject,” which status extended to his children. Under the doctrine of indelibility of allegiance, both father and son held that status for life. So there was no right of election under the British common law. On the contrary, a British subject faced the risk of prosecution for treason that carried a death sentence if he or she violated his or her life allegiance to the King. At one point in British history, just thinking harm upon the King could result in death.

The British Acts of Parliament did abrogate the English common law with respect to citizenship in its occupied colonies. We saw that with the Kenya Independence Act of 1963, which by British naturalization law questionably removed “at birth” British citizenship from persons born in Kenya during the time it was a British colony, and from their children, and allowed those persons to assume the allegiance and citizenship of the nation of Kenya. Hence, Obama Sr. was born by nature, like our Founders and Framers, an English “natural born subject” and by positive law (the British Nationality Act of 1948) a Citizen of the United Kingdom and Colonies (CUKC). His son, Obama Jr., under both English common law and the same British Nationality Act, was born by descent with the same status. So, both Obama Sr. and Jr. were born subjects of Great Britain by both British common law and positive law. Being born a subject of a foreign power, Obama is not and cannot be an Article II “natural born” Citizen, who by definition is born within the sole, full, complete, and undivided allegiance and jurisdiction of the United States.

cfkerchner said...

New Ad: Obama’s Social Security Number (SSN) 042-68-4425 Fails E-Verify System - 26 Sep 2011 issue Washington Times National Weekly edition - pg 5
http://cdrkerchner.wordpress.com/2011/09/26/new-ad-obamas-ssn-042-68-4425-fails-e-verify-system-26-sep-2011-issue-washington-times-national-weekly-edition-pg-5-cdr-kerchners-blog/

We are pursuing a multi-pronged strategy this week to bring this to the attention of the elected officials and authorities.

CDR Charles Kerchner (Ret) http://www.protectourliberty.org/

P.S. If you can visit ProtectOurLiberty’s website and make a donation to help pay for more ads in the print media such as this one:

paraleaglenm said...

Actually, the proper application of the 1948 Act and U.S. statute goes as follows:

1) The British citizen father is required to register a Hawaiian-born child within one-year with the British secretary of state.

2) If not done, the child may still apply for British citizenship by descent.

3) Due to a void marriage (bigamy), and abandonment, U.S. statute gave legal parent status only to Dunham.

4) Being born 'in the United States' only helped determine the residency requirement of Dunham as an unmarried mother bearing the child of an alien, non-immigrant father.

Finally, if born in 1791 under the same circumstances, Obama would be a British subject . . . with limited rights due to being a 'bastard' child, i.e., nullius fillius.

Upon abandonment, the American 'maiden' thus sullied by the British rake could claim U.S. citizenship for the child under provisions for a bastard child of an alien father.

Post the 1790 Act, there were no provisions for jus soli . . . the father was still the determinative of nationality.

The 1772 Nationality Act provided the father to confer all rights of a natural born British subject to a son of an alien mother, if born in the American colonies and the United States.

Frank Davis said...

Apuzzo,

(1) You must show how the definition of NBC was NECESSARY to the holding. The holding is that suffrage was not a right or privilege for citizens as contemplated by the 14th Amendment.

Please show how an Article II definition is controlling. If it is not controlling it is not part of the holding.

That's it. That's the only way it's a holding. That's the only way it's binding. If the decision could be made without discussing Article II, then it is at most persuasive.

(2) The court in Lynch went to common law, you agree. And as it went to old English common law, where our common law comes from, you can see that such common law relies on the rule of JUS SOLI - citizenship established by country of birth regardless of parentage.

This is a broad and absolute statement of English common law. Please indicate how Vattel, not an authority on English common law but more on international law, overrides the common law we actually took as our own.

(3) You have misread the NY Code. The 1860 code section you point to relates to citizenship of the STATE, not the nation...and defines "transient aliens" in subsection 17 as citizens of the U.S. BUT NOT of NY State. You can see that here:

http://www.archive.org/stream...

The court stated that the state could not determine a federal right to citizenship in Lynch. The Code only pertains to state citizenship, and only denies it to transient aliens which were U.S. citizens from another state, but does NOT comment on U.S. citizenship.

(4) Your assessment of the Minor holding is wrong. It does not overrule Lynch in any way because:

First, you cannot show how the Minor holding depended on an NBC definition.

Second, the Court did not reach the definition of NBC besides one that fit minor's facts and if it had added facts that would have been dicta regardless.

Third, and most importantly, the Court stated that there were authorities that included people born in the U.S. to non-citizen parents, and it openly REFUSED to deny those authorities instead resting on its own facts. Lynch is such an authority. Therefore, it's definition would remain untouched by Minor EVEN IF their discussion of NBC was a part of the holding. IN ORDER TO OVERRULE Lynch, the Court must expressly state that the authorities stating alien parentage makes no difference were NOT correct, and that would have to be essential to the holding.

Puzo1 said...

Frank Davis,

I of II

(1) You concede that if Minor had to define a “natural-born citizen” in order to rule whether Virginia Minor had a constitutional right to vote, then the Court’s definition of a “natural-born citizen” is not dicta, but rather binding precedent. There in no doubt that the Court was compelled to define a “natural-born citizen” in order to decide whether Mrs. Minor had a constitutional right to vote. Hence, by your own concession, the Court’s definition of a “natural-born citizen” is not dicta, but rather binding precedent.

Let us now examine why the Court needed to define an Article II “natural-born citizen.
Under our Constitution, only “citizens” are entitled to privileges and immunities under Article IV and to the due process and equal protection those privileges and immunities receive under the Fourteenth Amendment. The Constitution does not list what these privileges and immunities are. Virginia Minor, a woman, argued that the right to vote was one of these privileges and immunities. She also argued that she was “citizen,” and therefore entitled to privileges and immunities guaranteed to “citizens” in Article IV and protected by the Fourteenth Amendment, one of which was the right to vote. Hence, we can see that Virginia Minor’s entire argument and success hinged on whether she could convince the Court that she was a “citizen.” Indeed, whether she was a “citizen” was a condition precedent to her argument that she had a constitutional right to vote which Missouri could not deny or abridge. Consequently, Minor set out to analyze and determine whether Virginia Minor was a “citizen.”

Minor recognized that in the United States, following the “original citizens,” “citizens” could be added to the nation only by birth or by naturalization. Hence, following the Founding, there were only two classes of “citizens” that could come into being, the “natural born” and the naturalized. Virginia Minor was not a naturalized citizen. So the only way that she could be a “citizen” was by birth. Minor explained that the only birthright citizenship that without any doubt existed then was that enjoyed by a “natural born” citizen. Hence, the Court was compelled to thoroughly discuss the definition of a “natural-born citizen” which it had to in order to decide whether Virginia Minor was a “citizen” and as such entitled to privileges and immunities under the Constitution, one of which Mrs. Minor contended was the right to vote. The Court could not have decided whether Virginia Minor had the constitutional right to vote without first deciding whether she was a “citizen,” which in her case could only be a “natural-born citizen.” The Court’s definition of a “natural-born citizen,” i.e., a child born in the country to citizen parents, was therefore essential to its holding that voting was not a privilege and immunity originally guaranteed by the Constitution and that Mrs. Minor, a woman, even though she was a “natural-born citizen,” did not have a constitutional right to vote. Minor’s definition of a “natural-born citizen” is therefore binding precedent which to this day has not been changed.

(2) Our “common law” does not come only from English common law as Minor clearly shows. We did not adopt the English common law on the national level after the Revolution. Rather, apart from relying on the Constitution, Acts of Congress, and treaties, we adopted the law of nations which became part of the “Laws of the United States” under Article III. Our application of the law of nations became American common law on the federal level. English common law relies on jus soli. American common law and Congressional Acts relied on jus sanguinis until Justice Gray rendered the Wong Kim Ark decision. With this backdrop in mind, Vattel overrides the English common law simply because the Founders and Framers looked to Vattel and his explication of natural law and the law of nations for a definition of a “natural born” Citizen and not the English common law.

Continued. . .

Puzo1 said...

II of II

(3) I did not say that the New York Code defined national citizenship. I only used it to show that it overruled Lynch which was itself a New York state case which could only authoritatively define New York state citizenship and not national citizenship. I see that you concede that Lynch, a state case, is not a binding authority on defining a national “natural born” Citizen.

(4) I have shown in No. 1 above how the Minor holding depended on its definition of a “natural-born citizen.” Not addressing whether a child born in the United States to alien parents was a post-Founding “citizen,” the Court only analyzed whether Virginia Minor was a “natural-born citizen.” We know that Virginia Minor was not a naturalized “citizen.” Since the Court concluded that she was a “citizen,” it had to conclude that she was a “natural-born citizen,” for there was no other way for her to be a “citizen.” So the Court defined and applied the definition of a “natural-born citizen” to the facts that were presented to it. As I have explained to you numerous times, Minor’s doubts only related to who was a “citizen,” not who was a “natural-born citizen.” Anything that the state law case of Lynch said regarding a “natural-born citizen” that is inconsistent with Minor, a U.S. Supreme Court case, must fail. To the extent that Lynch ruled that Lynch was a “citizen” of New York, Minor would not affect it but the subsequent New York statute would.

One final point on Lynch, when it comes to defining a “natural born” Citizen, you are willing to pray to altar of Lynch, a state law case, but not to the altar of Minor, a U.S. Supreme Court case. You say that Minor’s definition of a “natural-born citizen” is dicta, but Lynch’s definition of the same clause is gospel. You make all these unpersuasive arguments about how Minor’s definition of a “natural born” Citizen was not necessary to its holding and therefore dicta, but in your mind the same objection does not apply to Lynch. Suffice it to say that your intellectual credibility needs much to be desired.

Puzo1 said...

WorldNetDailyExclusive

Nation 'tearing itself apart' over presidential eligibility
Supremes need to 'do their job,' make ruling on constitutional question

By Bob Unruh of WND

--------------------------------------------------------------------------------


Read more: Nation 'tearing itself apart' over presidential eligibility http://www.wnd.com/?pageId=349545#ixzz1ZCuv9UnO


http://www.wnd.com/index.php?fa=PAGE.view&pageId=349545

cfkerchner said...

Nation ‘tearing itself apart’ over presidential eligibility Supremes need to ‘do their job,’ make ruling on constitutional question | by Bob Unruh | @ WND.com
http://cdrkerchner.wordpress.com/2011/09/27/nation-tearing-itself-apart-over-presidential-eligibility-supremes-need-to-do-their-job-make-ruling-on-constitutional-question-by-bob-unruh-wnd-com/

CDR Kerchner (Ret)

paraleaglenm said...

Great contribution, Mr. Apuzzo, to Mr. Unruh's article.

On Minor: One might also consider the rules reserving the vote to 'adults' and 'property owners.' So, owning property was required at one time, and women's property rights and rights of inheritance was an evolutionary process leading to reforms in laws of succession, and suffrage.

J. Waite, in Minor, was establishing her citizenship, which was secured by 'common law' terms in the constitution, i.e., 'natural born,' as well as the 14th Amendment, upon which she was declaring her equal protection and civil rights.

Instead of muddying up the argument with legal distinctions and differentials, let us consider the FACT that British law, as cited by Blackstone, from 1772, conferred natural born subject status to children born of British subjects on foreign soil, i.e., the United States.

Jus Soli was solely relied upon for a century of British colonialization of the American states for the simple reason is the states had no jurisdiction other than under the protection of the Monarchy.

Yet, the British law (which arguers supporting the jus soli argument of natural born citizenship) favored natural born subject 'by descent,' rather than by place of birth.

When the colonies claimed independence, they established jurisdiction also favoring jus sanguinis, i.e., by descent.

This is the root of the judicial confusion, a century of being limited to jus soli as colonies. The 1790 Act was a quantum break from that limitation, requiring the alien father to naturalize before a minor child could be a citizen . . .

This should, hopefully, be sufficient information for an 'Ah Hah!' moment . . . and it can be backed up by the common law.

Early Pennsylvania law (1700s and 1800s) denied force of law to any English statutes if in conflict with U.S. legislated act, or if those common law priniciples were not codified with the state supreme court.

Otherwise, English law could be relied on as precedent . . . however, it seems many jurists were not well-read in the entirety of English law, vis-a'-vis my citation of 1772 British statute.

cfkerchner said...

Skip Tracer/Debt Collector Al Hendershot’s Video Linking Barack Hussein Obama II and Harrison J. Bounel | @ BirtherReport.com

See video and other breaking news about Obama SSN and Tax Fraud at this link:
http://cdrkerchner.wordpress.com/2011/09/28/skip-tracerdebt-collector-al-hendershots-video-linking-barack-hussein-obama-ii-and-harrison-j-bounel-birtherreport-com/

CDR Kerchner (Ret)

Kanbun said...

Have you seen this? REPUBLICANS EYE HISPANIC HALF OF THE TICKET. Financial Times, September 28.

Here: http://www.ft.com/cms/s/0/462fe322-e9e5-11e0-a149-00144feab49a.html#axzz1ZHwIW3Y1

Now, nobody has to be Natural Born.

Joe said...

Mario,

I enjoyed watching Justice Scalia and Breyer talk about the role of the SC in our government, how they decide which cases to take and their philosophy on how they decide cases. I know you will too.

http://www.c-spanvideo.org/program/301909-1

chewtoy said...

okay,son of a very famous black leader, Malcolm X, named B├óri′ M. Shabazz was assigned social security number 084-54-5926, issued in New York, in 1974.” has no highschool photos, '74 minus'59 is 15. no photos!!! really, this IS really big. no girl friends, his sister doesnt have a photo of the two of them together. really! how do you cover up a missing photo. drivers license photo from NY.this is the root to the vine.

Kim Papit said...

Mario,

I'm sorry if you've already answered this specific question, but I'm curious about the 14th and Ark in relation to what are referred to as "anchor" babies. I know that the 14th and Ark conferred born citizenship on anyone subject to the jurisdiction of the US, in the case of the former, and not born or a foreign diplomat or alien enemy in the case of the latter. However, it seems to me that the Court in Ark stressed that a key to the decision was that Ark's parents were permanently and legally domiciled in the US and conducting business there. Am I wrong in this belief? If not, wouldn't that preclude children of illegal aliens from birthright citizenship? By what federal precedent are such persons declared US citizens from birth? For that matter, wouldn't Ark exclude Obama since it doesn't match his circumstances? Obama Sr. was not permanently domiciled and was not conducting business here. What federal precedent then makes him a citizen from birth?