Sunday, December 11, 2011

Emer de Vattel, Adolf Hitler, America’s Youth, and the Natural Born Citizen Clause

                  Emer de Vattel, Adolf Hitler, America’s Youth, and the Natural Born Citizen Clause


                                                            Mario Apuzzo, Esq.
                                                            December 11, 2011

I read with interest the story published on December 10, 2011 at WND entitled, “4th-graders brainwashed with Occupy 'propaganda'-Student's dad complains to Scholastic News publisher."  The 4th grade child’s father, who I will call “father Edward,” complained to Scholastic because in his view the publisher only provided one side of the “Occupy Wall Street” debate, only putting forth the view that those who are protesting are innocent victims of American society’s oppression but not reporting the conduct of those protesters and who is politically behind those protesters. Read more: 4th-graders brainwashed with Occupy 'propaganda' http://www.wnd.com/?pageId=376177#ixzz1gFmocVmk.  One probably would then say why would I write about that and how does the title to his article really all stay together. Well, let us take a look at how such events are really part of a much bigger picture and why I used the title that I did.

Emer de Vattel, gave us a time-honored definition of a “natural born Citizen” which the Founders and Framers used when drafting the Constitution. That definition is a child “born in the country, of parents who are citizens.” Emer de Vattel, The Law of Nations, Section 212-231 (London 1797) (1st ed. Neuchatel 1758). Accepting natural law and the law of nations of which Vattel wrote and reported, the Founders and Framers gave the critical task of being President and Commander in Chief only to future “natural born Citizens.” These were to be the children born in the United States to parents who were born or naturalized Citizens of the United States.

This natural law and law of nations definition has been adopted as part of American common law as confirmed by the following decision of our United States Supreme Court and lower courts:

(1) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814): Chief Justice John Marshall, concurring and dissenting for other reasons, cites Vattel and provides 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.’”

(2) Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 3 Pet. 99, 7 L.Ed. 617 (1830): The majority cited Vattel on the right of election to change one’s allegiance and thus citizenship in the context of the new nation being formed after revolution. The Court found on principles consistent with Vattel’s jus sanguinis and not on the English common law rule of jus soli, that simply being born in New York, after July 4, 1776 and before September 15, 1776, when the British took possession of New York, was not sufficient to establish one’s status as an American citizen, for a child of minor years is incapacitated from making any citizenship election but rather followed the citizenship held or chosen by the father. On the contrary, relying upon principles of the English common law, Justice Johnson and Justice Story, who wrote separate minority concurring opinions, would have found the child born in New York during the same time period a citizen of the State of New York, regardless of the citizenship of his parents. Id. 136 and 164. This case shows what the majority rule was on citizenship and that it followed the Vattelian doctrine that a child when born took on the national character of his or her father (meaning father and mother under the doctrine of merger of the wife’s citizenship into the husband) and did not acquire his or her citizenship from the territory in which he or she was born.

(3) Shanks v. Dupont, 28 U.S. 242, 245 (1830): same Vattelian definition without citing Vattel, stated: “If she was not of age, then she might well be deemed under the circumstances of this case to hold the citizenship of her father, for children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country.”

(4) Dred Scott v. Sandford, 60 U.S. 393 (1857): Justice Daniel concurring cites Vattel and The Law of Nations and provides his definition of natural born citizens and takes out of Vattel’s definition the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively, 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, 167-68 (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 American “common-law” definition of those terms. Providing Vattel’s law of nations definition of a “natural-born citizen,” but without citing Vattel, and not in any way referring to the English common law, it laid down the definition of a “natural-born citizen” as follows:

“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.

(6) Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879): same Vattelian definition and cites Vattel, said: “[T]he offspring of free persons…follows the condition of the father, and the rule partus sequitur patrem prevails in determining their status. 1 Bouv. Inst., 198, § 502; 31 Barb. 486; 2 Bouv. Law Dict. 147; Shanks v. Dupont, 3 Pet. [28 U.S.] 242. This is the universal maxim of the common law with regard to freemen -- as old as the common law, or even as the Roman civil law… No other rules than the ones above enumerated ever did prevail in this or any other civilized country. In the case of Ludlam v. Ludlam, 31 Barb. 486, the court says: ‘The universal maxim of the common law being partus sequitur patrem, it is sufficient for the application of this doctrine that the father should be a subject lawfully, and without breach of his allegiance beyond sea, no matter what may be the condition of the mother.’ The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (page 101), says: ‘As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. * * * The country of the father is, therefore, that of the children, and these become true citizens merely by their tacit consent.’ Again, on page 102, Vattel says: ‘By the law of nature alone, children follow the condition of their fathers and enter into all their rights.’ This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case.”

(7) Ludlam v. Ludlam, 26 N.Y. 356 (1883): In this case, it appeared that Richard L. Ludlam, a citizen of the United States domiciled in New York, went at the age of eighteen to Peru for business purposes, but took no steps toward naturalization in Peru, or toward a permanent change of domicil. He remained in Peru fourteen years and when in Peru married a Peruvian woman, who also was a native of that country. A child was born to him in Peru. This child was held by the Court of Appeals to be a citizen of the United States, domiciled in New York. From the opinion of the court which was delivered by Selden, J., we learn the following:

"It seems to me to result of necessity from these principles, that the children of English parents, though born abroad, are nevertheless regarded by the common law as natural born citizens of England. The decision upon the plea in Calvin's case, which was merely repeating what was decided in Cobbledike's case, as early as the reign of Edw. I, see Calvin's case, p. 9 b., necessarily implies that a child may owe allegiance to the king (i.e., not merely local or temporary, but natural and permanent allegiance), although born out of the king's dominions; and also that this was a broad general rule, not confined to a few exceptional cases, because if this was an exception the plea could not have been held bad on demurrer, as it was in both Cobbledike's and Calvin s cases; but the exception must have been pleaded.

Now, upon what ground can allegiances in such cases be claimed ? If natural allegiance or allegiance by birth, does not depend upon boundaries or place, as Calvin's case asserts, upon what does it depend? There can be but one answer to the question. It is impossible to suggest any other ground for the obligation than that of parentage. It must, I apprehend, be transmitted from the parents to the child, or it could not exist. This being then the nature of permanent allegiance, it follows that the king of England may properly claim allegiance from the children of his subjects, wherever born. If then the child of English parents, though born abroad, is subditus natus a born subject of the king, he must also be a born citizen of the kingdom. Allegiance and citizenship are as we have seen, correlative terms, the one being the consideration of the other. So long therefore as the parents continue to owe allegiance to the crown of England, so long will their children, by the rules of the common law, whether born within or without the kingdom, owe similar allegiance, and be entitled to the corresponding rights of citizenship.

* * * *

I suppose the doctrine that children, if legitimate, follow in regard to their political rights and duties, the condition of their fathers, to be found in natural law, and to be substantially the same in most, if not all, civilized countries. Vattel says: " Society not being able to subsist and perpetuate itself, but by the children of its citizens, those children naturally follow the condition of their fathers and succeed to all their rights." B. 1, ch. 19, § 212. In a subsequent action the same author says: " It is asked whether the children born of citizens in a foreign country are citizens, the laws have decided this question in several countries, and it is necessary to follow their regulations. By the. law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular, and cannot of itself furnish any reason for taking from a child what nature has given him. I say of itself, for the civil law, or politics, may order otherwise from particular views. Id., § 215.

It is shown by Vice Chancellor Sandford, in Lynch v. Clark, 1 Sandf. Ch. 583, 675, that the law of France, Spain, and Portugal is in accordance with this doctrine, by express enactment it is true, as it is now in England and in this country. But the uniformity goes to show that it is founded upon a law of nature, and of course prevails in every country, unless, as Vattel says, it is changed from the municipal law from particular views.”

(8) Elk v. Wilkins, 112 U.S. 94 (1884): “This section [Section 1 of the Fourteenth Amendment] contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are 'all persons born or naturalized in the United States, and subject to the jurisdiction thereof.' The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards, except by being naturalized, either individually, as by proceedings under the naturalization acts; or collectively, as by the force of a treaty by which foreign territory is acquired.”

(9) United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (same Vattelian definition and cites Vattel): “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.”

(10) U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898): It distinguished between an Article II “natural born Citizen” and a Fourteenth Amendment “born . . . citizen of the United States.” It relied on the English common law and Calvin’s Case (1608) to hold that a child born in the United States to domiciled alien parents was a “born . . . citizen of the United States” under the 1868 Fourteenth Amendment. But concerning a 1787 Article II “natural born Citizen,” it cited Minor and quoted its American common law definition of a “natural-born citizen.”

Minor, clearly stating what the firmly established American common law rule (not the British common law rule) was by which the Founders and Framers were guided, had no doubts about who a "natural-born citizen" was, defining one as a child born in the country to citizen parents. Minor said that under that same American common law rule there were doubts as to whether a child born in the United States to alien parents is even a "citizen." Wong Kim Ark resolved those doubts and held that Wong, who was born in the United States to domiciled alien parents, was a Fourteenth Amendment "born . . . citizen of the United States." But in so doing, it did not alter or amend the original and long-standing American common law rule of what a “natural born Citizen” was and therefore did not hold that Wong was an Article II "natural born Citizen." There is no other U.S. Supreme Court case following Wong Kim Ark which changed the Minor original American common law definition of a "natural-born citizen."

We have seen that Vattel informed us what a “natural born Citizen” is and, as our U.S. Supreme Court and some lower courts have confirmed throughout the span of American history, our Founders and Framers, when drafting the presidential eligibility requirements included in Article II, Section 1, Clause 5, adopted that definition. But there is another important message in what Vattel wrote which is really the basis for the Founders and Framers choosing Vattel’s definition of a “natural born Citizen.” Vattel also warned us that we cannot preserve our society but through the children of its citizens. Vattel said in Section 212 The Law of Nations that a society cannot fundamentally preserve itself other than through the children of its citizens who he calls the “natives, or natural-born citizens.” Vattel told us that it is the youth of any society that will eventually, upon reaching the age of majority (then it was 21 and today it is 18), assume the power to administer and preserve that society. Vattel was perfectly correct in what he said and Adolf Hitler knew it also.

Hitler, who was not born in Germany and was therefore not a "natural born citizen" of that nation, made his plans for the youth of Germany publicly known when he said: “He alone who owns the youth, gains the future.” -- Adolf Hitler, speech at the Reichsparteitag, 1935. "One of the most important functions of the Hitler Jugend was to prepare the youth for membership in the Party and its formations. Hitler said at the Reichsparteitag, 1935:

'He alone, who owns the youth, gains the Future! Practical consequences of this doctrine: The boy will enter the Jungvolk (boy 10-14) and the Pmpf (members of the Jungvolk) will come to the Hitler Youth, and the boy of the Hitler Youth will join the SA, the SS and the other formations, and the SA man and the SS man will one day join the Labor Service, and from there he will go to the Armed Forces, and the soldiers of the people will return again to the organization of Movement, the Party, the SA, the SS, and never again will our people be so depraved as they were at one time.' (2656-PS; 2401-PS). " 
http://www.nizkor.org/hweb/imt/nca/nca-0… Almost the same words were said by Vladmir Lenin, when he said: “Give me just one generation of youth, and I’ll transform the whole world.”

Hitler knew that it was not going to be easy for him to win the hearts of all Germans. “He realized that he would never be able to convert all Germans to National Socialism. He converted many, but many others saw through the official propaganda. The younger generation was a different matter. They came to the Hitler Youth as more of a clean slate which were much more vulnerable to ideological manipulation. He was skeptical about the schools, especially the schools he inherited in 1933. The Hitler Youth was a program that the NAZIs could completely control. Not only did the Hitler Youth provide the vehicle which the future generation of Germans could be shaped, but the youth could be used in many other ways by Hitler and the NAZIs.” http://histclo.com/youth/youth/org/nat/hitler/hitler.htm.

From what Vattel teaches, we can see that allegiances and values are nurtured in the family. And Hitler knew that, too. He also knew that “Youth is easily deceived, because it is quick to hope.”—Aristotle. The First Hitler Youth Law proclaimed: "The future of the German people depends on its youth. Therefore, all of the German youth must be prepared for its future duties." Two subsequent Hitler Youth Laws were designed mostly to prevent families from evading the requirement to enroll their children in the HJ. http://histclo.com/youth/youth/org/nat/hitler/hitler.htm.  In studying the Hitler Youth, we find that “[f]amily attitudes are especially interesting because part of the purpose of the HJ [Hitler Jugend] was to break down family allegiances and cement loyalty to the Party and F├╝hrer.” “The boys were encouraged to question or even reject some authority figures, such as parents or church leaders, which appealed to many boys. They were required, however, to accept NAZI principles without question.” http://histclo.com/youth/youth/org/nat/hitler/hitler.htm.

It also does not take much time to fundamentally transform a nation’s youth. NAZI youth organization began in 1922. The NAZIs seized power in 1933. Independent youth groups were absorbed into the Hitler Youth or abolished. The NAZIs by 1935 had enrolled 60 percent of Germany's youth into their youth movement. http://histclo.com/youth/youth/org/nat/hitler/hitler.htm.  The Hitler Youth consisted of two sections, the Deutsche Jugend for the younger (10-14) boys and the Hitler Jugend proper for the older (15-18) boys. “The Hitler Youth grew from a group with a handful of boys to one of the most important uniformed youth group in Europe. No group so thoroughly succeeded in their stated purpose. Had the NAZIs succeeded, the elite of Europe would have been raised and trained through the Hitler Youth. Membership increased from about 1,000 boys in 1923 to nearly 8 million in 1939 when Hitler launched World War II.” http://histclo.com/youth/youth/org/nat/hitler/hitler.htm.

Arthur Axmann, a Hitler Youth Leader, presented Hitler with a newly formed division--the 12th SS Panzer Division Hitlerjugend--on his birthday in April 1944. The Division was composed of HJ youth born in 1926, making them 17-18 years old. The senior NCOs and officers were mostly SS veterans from the Eastern Front. This Division played a prominent role in the Normandy fighting.

How does any of this relate to America? The message that we should learn is that we should not take so lightly the Occupy Wall Street, text messaging, text+, iPhones, YouTube, Facebook, Twitter, Tumblr, Droid, etc. movements and networks, especially if someone attempts to use those channels of education and communication to influence and manipulate American youth the way Hitler did German youth. While Scholastic states on its web site that it is committed to publishing all information for the sake of preserving a free society (see the WND article) and it has perceived that there is an important need to “educate” our children about the “Occupy Wall Street” movement, I have not seen one word in its publications about the ongoing national debate about whether President Obama is an Article II “natural born Citizen.” Omission of the “natural born Citizen” issue from its publications, but inclusion therein of the “Occupy Wall Street” movement, should surely raise grave suspicions on the part of any sound thinking concerned American.

What our nation’s youth learns through any medium is, indeed, vital to the survival of our nation as we known it. Therefore, let us be, as father Edward is, forever vigilant about what someone is trying to teach our children, no matter what that subject or the professed motivation for teaching that subject might be.

Mario Apuzzo, Esq.
December 11, 2011
http://puzo1.blogspot.com/
####

Copyright © 2011
Mario Apuzzo, Esq.
All Rights Reserved



21 comments:

MichaelN said...

Puzo1 quoted:
"(7) Ludlam v. Ludlam, 26 N.Y. 356 (1883)....

Now, upon what ground can allegiances in such cases be claimed ? If natural allegiance or allegiance by birth, does not depend upon boundaries or place, as Calvin's case asserts, upon what does it depend? There can be but one answer to the question. It is impossible to suggest any other ground for the obligation than that of parentage. It must, I apprehend, be transmitted from the parents to the child, or it could not exist."
-----------------
Mario, this is supported by Coke in Calvin's case where Coke says:-
"Calvin the plaintiff, naturalized by procreation and birth right"

Calvin being ruled a 'natural born subject', with pure, absolute and indefinite allegiance "due by nature and birthright"

The notion that an alien parent produces a natural born subject, has been (conveniently) cherry-picked and is only a part of the truth, the most crucial part has been omitted in discussions, i.e. that the alien parent father of a child born in England, must be a 'subject', so the child may be "born under the ligeance of a subject".

Without the parent father being a 'subject', then the child cannot be a 'subject' or a 'natural born subject' even if born in England.

It is completely irrelevant as to how or why the parent father is himself a 'subject'.

The English common law as regards qualification as 'natural born subject' has ALWAYS been about the subject status of the parent father.

William said...

There is an excellent written piece by the Historian and Constitutional expert researcher P.A. Madison pertaining to the Occupy Wall Street issues. It is titled, "There is No Constitutional Right to Occupy."

It can be reviewed in full at: http://www.blogger.com/comment.g?blogID=7466841558189356289&postID=5867093233794772942


Well worth the read.

William said...

Additionally,

P.A. Madison writes a wonderful piece titled: "Historical Analysis of the Meaning of the 14th Amendment's First Section."

Can be reviewed at: http://www.federalistblog.us/mt/articles/14th_dummy_guide.htm

And another titled: "Defining Natural-Born Citizen."

Which can be reviewed at: http://www.federalistblog.us/2008/11/natural-born_citizen_defined/


I continue to always enjoy your prolific well historical documented writings Mario and look forward with full enthusiasm to your future articles.

William Richardson

Puzo1 said...

William,

I am familiar with P.A. Madison's early writings on the Fourteenth Amendment and the "natural born Citizen" clause. He did some very good work. I recommend reading his articles to everyone.

James said...

Mario,
This might interest you quite a bit as you live and in New Jersey.

http://obamaballotchallenge.com/new-jersey-citizen-to-file-obama-ballot-challenge

paraleaglenm said...

In his work on Conflict of Laws, § 48 (1834), Mr. Justice Story, treating the subject as one of public law, said:

"Persons who are born in a country are generally deemed to be citizens of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business. It would be difficult, however, to assert that, in the present state of public law, such a qualification is universally established."

Why is this query in Conflicts of Law? Because Joseph Story recognizes that the law, and reason, only allow children of citizens to be citizens at birth . . . HOWEVER, he recognizes a trend in the 'public law' that ignores his 'reasonable qualification' that citizenship did not fall to children of non-citizens.

If one reads Sec. 3 of the 1795 Uniform Naturalization Act, minor children of aliens become citizens upon naturalization of the father . . . one of particular Bias towards the JUS SOLI must really read between the lines of the Act to insist that this section only referred to foreign-born children, as one judge did.

While this section of Conflicts discusses naturalization law, Article II is specifically discussed in §1473 of his Commentaries: "It is indispensable, too, that the president should be a natural born citizen of the United States; or a citizen at the adoption of the constitution, and for fourteen years before his election. This permission of a naturalized citizen to become president is an exception from the great fundamental policy of all governments, to exclude foreign influence from their executive councils and duties. It was doubtless introduced (for it has now become by lapse of time merely nominal, and will soon become wholly extinct) out of respect to those distinguished revolutionary patriots, who were born in a foreign land, and yet had entitled themselves to high honours in their adopted country. A positive exclusion of them from the office would have been unjust to their merits, and painful to their sensibilities. But the general propriety of the exclusion of foreigners, in common cases, will scarcely be doubted by any sound statesman. It cuts off all chances for ambitious foreigners, who might otherwise be intriguing for the office; and interposes a barrier against those corrupt interferences of foreign governments in executive elections, which have inflicted the most serious evils upon the elective monarchies of Europe."

Common Law and the Calvin's Case relied on Jus Soli, but the 1772 British Nationality Act AND the 1790 Uniform Nationality Act, et seq 1855, relied on the national condition of the father.

Under jurisprudence, legislated Act supersedes foreign case law and the common law . . . so, in time, the judiciary took it upon itself to ignore Art I, Sec 8 in order to re-write Naturalization law, as occured in Wong Kim Ark.

Mick said...

Hello Mario,
Is there a specific statute in NJ Election codes that allows challenge of eligibility by an elector?

Joe said...

Hi Mr. Apuzzo,
This article looks like our answer to the deceitful CRS report that recently came out. It is very well done.

Thank you for another superb article on this subject.

jd

Joe said...

Hi Mr. Apuzzo,

Could you check your email? I would like to get in touch with you about representing our group in MS.

thanks

paraleaglenm said...

Notice how in the Elk case, the 14th Amendment 'born or naturalized' aids in conflating 'natural born' with 'native born,' as most consider a child born on U.S. soil of alien parents not naturalized per se.

Therefore, they are raising statutory Jus Soli to the level of natural law.

In his work on Conflict of Laws, § 48 (1844), Mr. Justice Story, treating the subject as one of public law, wrote:

"Persons who are born in a country are generally deemed to be citizens of that country. A reasonable qualification of the rule would seem to be that it should not apply to the children of parents who were in itinere in the country, or who were abiding there for temporary purposes, as for health or curiosity, or occasional business. It would be difficult, however, to assert that, in the present state of public law, such a qualification is universally established."

Of course, the conflict is the public law concept of jus soli undermining the ‘reasonable qualification’ that was, since 1790, an integral part of legislated Act requiring aliens to first naturalize before their minor children could become U.S. citizens.

Sec. 3. Uniform Naturalization Law by Congress “And be it further enacted, 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:"

The champions and defenders of the Jus Soli insist that Sec. 3 applied only to children born abroad . . . yet cannot prove this when challenged.

Justice Story's Commentaries describes the reason for making Naturalization law Uniform through Federal legislation. See http://www.constitution.org/js/js_316.htm

Uniform Law relies heavily on the Plenary Powers Doctrine. The courts in each state were limited to administering oaths and keeping records. Later, that part of Naturalization Law was given over to the Executive Branch. As cases and controversies in suit against the Secretary of State ensued, the courts declared Article III power over naturalization law and the liberal courts began rewriting it.

I recommend Mark R. Levin's article at http://www.cis.org/CitizenshipSupremeCourt

Congress has the power to 'fix' the Wong Kim Ark interpretation of the 14th Amendment, merely by adding a brief definition of 'under the jurisdiction thereof' to 8 USC 1401, but our congressmen are, almost unanimously, misinformed and uneducated on the subject.

Indeed, a President Gingrich could address congress and teach them, and encourage them to challenge the SUPREME (or not so supreme) Court.

h2ooflife said...

Vattel's observations about the constitution of societies and nations is best describable as a description and not a definition. He was not presenting his observation as a definitive authoritarian final word on the subject of citizenship, but merely as a general principle that was true in practically all cases, but he didn't bother including or excluding the exceptions to the general rule, namely, those born abroad to parents who were not emigres. They also are citizens, and more than mere statutory citizens, they are natural citizens via citizenship by descent, -natural inheritance. So, place of birth is irrelevant and should not be asserted as a necessary element of natural citizenship because that would violate the very principle upon which it is based.

http://obama--nation.com

Puzo1 said...

h2ooflife,

As to place of birth:

Vattel in Section 215 of The Law of Nation said that nations are free to pass municipal laws to regulate how they will treat persons born abroad to citizen parents.

First, Vattel asked whether these persons are "citizens," not whether they are "natural-born citizens."

Second, the First Congress in the Naturalization Act of 1790 said that such persons "shall be considered as natural born citizens." Under the definition of “naturalization” at that time, such language connoted naturalization. Also, the act was a naturalization statute. Furthermore, the statute was only retroactive.

Third, the Third Congress, repealing the Naturalization Act of 1790 and replacing it with the Naturalization Act of 1795, considered such persons to be only "citizens of the United States." This is critical given that Article II, Section 1, Clause 5 distinguishes between a “natural born Citizen” and a “Citizen of the United States,” with only the former being eligible to be President after the adoption of the Constitution.

These early Congresses would have known how the Founders and Framers defined a "natural born Citizen." Our U.S. Supreme Court has given great weight to early Congressional statutes in interpreting terms in the Constitution.

Hence, we can see that place of birth was, indeed, a controlling factor in defining a "natural born Citizen."

The other necessary element, as stated by Vattel in Section 212 and confirmed by several U.S. Supreme Court cases (see, for example, Minor v. Happersett and U.S. v. Wong Kim Ark), was that the child be born to citizen parents.

paraleaglenm said...

It is obvious that citizenship is either inherited or statutory. The two can coincide, but may not be in conflict.

Two U.S. parents = Inherited
One U.S. parent = Statutory
No U.S. parents = Statutory

Mr. Apuzzo adds a subsection to Two U.S. parents thanks to the 1795 revision, Two parents foreign born = Statutory

A Wong Kim Ark citizen has two nationalities at birth by constitutional amendment as (mis)interpreted by the Supreme Court, thus a conflict of laws exists until statute dealienages one citizenship. The statutes were revised later to comply with Wong Kim Ark, i.e., 8 USC 1401(a).

Only a natural born citizen is solely a U.S. citizen at birth by force of natural law, inheritance.

English law describes the two conditions as 'citizen by descent' and 'citizen otherwise than by descent.'

If Gingrich became president, I'd like to see him lecture congress on the 14th Amendment (after all, Gringrich is a Civil War Era scholar) and promise congress he would sign any bill revising 8 U.S.C. 1401(a) to follow legislative history and case law prior to Wong Kim Ark.

Stranger said...

Mario,

Natural citizens are such via birth to citizens, just as tigers are tigers via birth to tigers. Law has nothing to do with it, other than an inviolable Law of Nature. That is the principle of natural citizenship. It's an unalienable right which one is born with if their parents are citizens. Therefore, location has no relevance. Natural citizenship is not a concept of legislated statute, but of the common sense principle of group membership based on Natural Law. It is not found anywhere in U.S. legislated law or the Constitution itself because it precedes them in every way. It is an element of Natural Rights along with Life, Liberty, and Pursuit of Happiness. It, like they, can be revoked due to criminal or other behavior but that doesn't mean that it isn't a right that humans are born with.

You said; "Under the definition of “naturalization” at that time (1790), such language ("considered as natural born citizens") connoted naturalization."
I can't believe I'm reading that you're saying that they viewed natural born citizens as "naturalized". Something isn't making any sense.

The 1790 Act states: “... the children of persons duly naturalized, dwelling within the United States,...; 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:"

It is very important to grasp who this language was addressed to. It was not written for anyone other than the administrators of immigration policy who could easily misconstrue the truth about the mentioned citizens and treat them as aliens in violation of their constitutional rights. It made sense to place that language in the Naturalization Act because it was the Act aimed at the immigration authorities.
Understand this, the children of naturalized citizens were automatically U.S. citizens by the traditional policy of derivative citizenship and that statutory language was written only to protect their rights, not to define them nor grant them anything.
Similarly with the natural citizens born to American outside of U.S. territory. They not only were citizens but were natural born citizens and the Act meant to insure that they were treated as what they were. But it need not have mentioned their type of citizenship because presidential eligibility was not at issue, (unless one of them later sought to run for President). That was why that language was dropped in 1795, -only citizenship or no citizenship was the issue.

Stranger said...

Mario, Pt. 2
It's a logic error to assume that the 1795 Act "defined" them as "only" citizens, rather it limited itself to dealing solely with the issue of "citizenship or no citizenship". It was the intent of the framers of the Constitution that children of Ambassadors, Diplomats and Consuls should be considered as future material for the presidency since they were born to true-blue American patriots in serve to their country. It would have been viewed as a gross injustice to deny the sons of such faithful servants the same honor as their fellow countrymen simply because of the location of their birth. That is the reason why they only required 14 years residency out of a minimal life-span of 35 years. That means they could have spent 21 years of their life abroad! That's three fifths. McCain could have live 58 years abroad!
You use the words "other necessary element" in regard to natural citizenship requiring a domestic birth but it is a logic error to consider that element as necessary. It is merely concomitant in essentially all cases, with the rare exceptions of citizens born abroad, therefore it need not have been mentioned that there are rare exceptions to that general "rule" which is nothing more than an observation and NOT a rule. Every reference to domestic birth is given not as a definition but as an observation, and observations only cover that which is being discussed in a general sense, not in a comprehensive and all-inclusive sense. It's not legalese covering every possible base and scenario.
There is a principle, there is a PRINCIPLE beneath natural citizenship and it is not an arbitrary assumption of what one or more people presume to make a semblance of sense. Natural citizenship follows a Law but none of the authorities through the years and centuries has bothered to identify it. The British did in regard to being a natural subject, but their bastardized reasoning was based on the limitless right of the King to be boss of everyone born within his domain. That is not the reasoning to be followed in America. We must follow the principle of natural law and by it only parentage matters. Under jus soli only location matters and not parentage, but there is nothing natural about jus soli. A natural American Citizen is not created by a bastardized combination of jus soli and jus sanguinis. There is nothing natural about such a combination. Keep focused on that which is natural and resist the siren call of the song of the soil. It will draw one onto the rocks of confusion.

Stranger said...

paraleaglenm
I don't see any conflation of native born and natural born in the 14th A because it contains no reference to nbc. It's words describe both types of citizenship but was not written to address the nbc class, only the native born class. The nbc class needs no law or Amendment to secure its rights because they are a fundamental element of Natural Rights.

The 14th's all-inclusive wording sacrificed clarity for brevity, and clarity was the big loser. "subject to the jurisdiction thereof": undefined but not undefineable. Perhaps its definition seemed self-evident to the authors but others are afraid to read their logical minds. But I'm not. Foreigners are not subject to U.S. jursidiction, whether they are inside or outside of the U.S. Only citizens and legal immigrants are subject. Domiciled illegal immigrants could also be ruled to be subject, or not.

They did something unusual with the Amendments wording by throwing in "or naturalized" where it doesn't really belong because its presence creates a meaning of "All persons naturalized in the United States are citizens of the United States" That would be a ridiculously obvious statement to deliberately make except for one thing, no law of Congress can change that stated fact. It would require a repeal or rewrite of the Amendment to change that.
I Love the Justice Story quote about exceptions to U.S. jurisdiction because it reflects that same common sense logic that I've imputed to jurisdiction. How can anyone possibly take any stance against it? They would have to be dunderheads or deliberately intellectually dishonest about what the authors thought, meant, and intended. Such an interpretation makes the jurisdiction requirement unnecessary and superfluous because it views EVERYONE within U.S. borders to be subject. Then why the need to say it? No answer. Obfuscation.

You wrote: "Congress has the power to 'fix' the Wong Kim Ark interpretation of the 14th Amendment, merely by adding a brief definition of 'under the jurisdiction thereof' to 8 USC 1401"
I'm not a constitutional lawyer but I'm pretty sure Congress can't define anything in the Constitution and its amendments, only the courts. But if only the 1866 Civil Rights Act existed, they could change or clarify that.

Stranger said...

Today,while perusing official U.S. Code Interpretations I came across mentions of native and natural born citizens. I was surprised to find that because I've never read any mentioned of their existence in U.S. law in such a form. Let me share: http://www.uscis.gov/ilink/docView/SLB/HTML/SLB/0-0-0-1/0-0-0-45104/0-0-0-48602.html
Interpretation 324.2 Reacquisition of citizenship lost by marriage.
(b) Naturalization . At one time or another since September 22, 1922, women who expatriated themselves under the circumstances set forth in INTERP 324.1 have been able to regain citizenship by means of a simplified form of naturalization,
[paragraph 6] The effect of naturalization under the above statutes was not to erase the previous period of alienage, but to restore the person to the status if NATURALIZED, NATIVE, or NATURAL-BORN citizen, as determined by her status prior to loss."
WOW! Where has this been hiding all through the three years that PhoxarRed has been declaring that the native born are natural born? This is equivalent to an iron skillet to the head of his lying position. I wish I'd known of this statement 6 months ago so I could have whacked him on the head with it each time he claimed there was no difference.
This sentence is preceded by another one also using the same terminology. Time to spread the word. Obama's entire claim of eligibility is premised on a Hawaiian birth making him a native born American. This section of law shows that the native born are distinct from the natural born. Check-Mate.

Stranger said...

The reason I was perusing "Expatriation by Marriage" was to find out if U.S. law allowed derivative citizenship for Obama at birth with his mother being married to an alien. I learned that the Attorney General who construed a Supreme Court decision regarding loss of citizenship (expatriation) when American women marry foreign men had ruled that they didn't lose their citizenship without a willful act, which marriage isn't, even though the scotus has never ruled on his opinion. The 1907 Act could still be controlling.

So it isn't truly "settled" law that Obama was even a U.S. citizen at birth though the view of scotus might uphold the A.G.s finding.
But that still leaves the question about Obama and the source of his citizenship. I've never heard anyone opine on whether or not a child born of a foreign male decades ago would have had only his father's citizenship or not. It seems that every other conceivable bush has been beaten about except this one. Were children born of alien fathers deemed to have inherited their American mother's citizenship or only the father's? We need answers people! Was he even a citizen at birth? What question is more important than that? My final essay on his eligibility needs an answer before it can be finalized. It's working title is: A Britain by Birth; An American by Naturalization Please help.

YJ Draiman said...

Can we charge politicians with treason for violating oath of office?
Swearing exclusive loyalty, fealty, allegiance to the United States

YOU SWORE ON THE BIBLE: WHAT AN OATH MEANS

A promise is always an important thing. But an oath is not just an ordinary promise. An oath is a promise made in such a way as to accentuate its importance, and to make it binding, as much as is possible to do.

An oath has been defined thus:
“Invocation of a supernatural or holy being called to verify the veracity of a statement… An oath was a special appeal, an expression of sincerity backed up by the threat of divine retribution should the uttering prove false — hence the term ‘oath-breaker’. An oath breaker was assumed to have committed a crime against God or of some divine entity, which would lead to damnation or another form of severe penalty.”
A PROMISE MADE TO GOD

A connection is explicitly made between the promise (relating to earthly matters) and the sacred realm. The promise is thus made a sacred thing. The result is that nothing can legitimately overrule the promise. It is stated in an unequivocal way — unequivocal, literally, in that there is no other “voice” that can equal, let alone supplant, the voice of the promise.

Historically, the taker of the oath consents to the severest of judgments should he violate that oath: “a crime against God…which would lead to damnation or another form of severe penalty.”

That is a part of the background for the “oath of office” which every member of the United States Congress takes.

A TREASONOUS OFFENSE

And of the oath of office, it is said:
“Oaths of office are usually a statement of loyalty to a constitution or other legal text, as well as an oath to the state or religion the office holder will be serving. It is often considered a treasonous or highly illegal offense to betray one’s oath of office.”
“A treasonous or highly illegal offense…” Taking this oath is supposed to be no small thing.

And so, just what is it that Members of Congress promise that they will do? Here’s what they swear:
‘”I do solemnly swear (or affirm) that I will support and defend the Constitution of the United States against all enemies, foreign and domestic; that I will bear true faith and allegiance to the same; that I take this obligation freely, without any mental reservation or purpose of evasion; and that I will well and faithfully discharge the duties of the office on which I am about to enter: So help me God.”‘

Stranger said...

Today I was inspired to write what may be the final word on natural citizenship: A Dissection of the “Definition” of Natural Born Citizen" I dissect the logic errors that clouds the issue.

Here's a sample from near the end: A born citizen is anyone who is a citizen from birth and not one born abroad to foreign parents, nor naturalized into citizenship during adulthood. They are born into citizenship but that citizenship can be either natural citizenship inherited from the parents, or naturalized citizenship granted by the laws of the government.
If that citizenship is inherited from the parents then it is natural citizenship and therefore can be called the natural-type of born citizenship as opposed to the naturalized-type. Natural citizens should not be called born-citizens because some are foreigner-born to foreign immigrants (-not naturalized immigrants). Their citizenship is not natural, but instead is statutory citizenship via the Civil Rights Act of 1866, which subsequently became Constitutional Citizenship via the 14th Amendment (1868) as interpreted by a Supreme Court ruling in 1898. Natural citizens do not possess constitutional citizenship. They possess natural citizenship and it is not found anywhere in the Constitution or it’s amendments.
Natural citizenship is via natural law, and no law exists which grants it because it is an unalienable right.
The framers of the Constitution did not feel they had the right and authority to make statutes regarding rights that are universally viewed as unalienable. That was why they did not write a Bill of Rights into the Constitution. cont...
http://h2ooflife.wordpress.com/dissection-of-nb/ a.r. nash

Stranger said...

Barack Obama is a United States constitutional citizen! Therefore he has ALL of the rights of ALL citizens!…uhhhh…with one tiny little insignificant caveat, -he just has to recuse himself from serving as the Commander-in-Chief because that job was singled out by our founding fathers to be off-limits to constitutional citizens. -a slight minor footnote, a detail hardly worthy of attention because no one who wasn’t qualified to be President would ever have the audacity to run for an office that he’s unqualified to serve in. Right?

~~~Holy Crap! Rip Van Winkle just woke up and can’t believe what he’s seeing! A foreigner by birth is seating in the White House? How the hell did that happen? Isn’t anyone going to do something about it? Or at least say something about it? What are our national leaders and our guardians in the Press saying?
zzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzzz

Dear Rip Van Winkle, you should be shocked because one was elected and took office who holds it in violation of the Constitution. He may be a Constitutional Citizen of the United States, or a Naturalized citizen, or a....
That makes him ineligible to be the President. No one who is a Constitutional Citizen, nor a Statutory Citizen, nor a Naturalized Citizen, nor an Administrative Policy “Derivative” Citizen is allowed to be President by the Constitution because they are not NATURAL Citizens but instead are various types of Naturalized Citizens. That means that they had one or both foreign parents. Natural citizens have only American parents. The office of the President can be entrusted only to them even though naturalized citizens may be even more patriotic, Constitution-love and defending citizens, but they aren’t Constitution-qualified to be President.

And yet some people don't give a tinker's damn about abiding by the Constitution, nor even understanding it. Whatever seems preferable to achieve their idealistic humanitarian, elitist autocratic goals is OK because after all, the ends DO justify the means, right? Why let a piece of paper stand in the way of all that social good that redistributionism can produce? Anyone who can't see that wisdom is must be a simpleton. Simpletons think that the government doesn't know what's best for everyone. How dare they question the wisdom and intelligence and integrity, and morals of the government? After all, their existence is for the sake of the government, not the other way around, right?
a.r. nash http://obama--nation.com