Fox News Is Spreading False Information on the Meaning of a “Natural Born
Citizen”
By Mario Apuzzo, Esq.
May 1, 2012
Read this article entitled, “Bret explains "natural born citizen" requirements for president and vice president, posted at http://www.foxnews.com/on-air/special-report/blog/2012/05/01/bret-explains-natural-born-citizen-requirements-president-and-vice-president#ixzz1tdaf5KNc . The post is by a Katy Ricalde. She posts the argument of Bret Baier as to how a "natural born Citizen" is defined. Baier argues that since the Constitution does not define a "natural born Citizen," the Constitution allows Congress to do so through its naturalization statutes such as those found at 8 U.S.C. Sec. 1401 et seq. He concludes that any Congressional Act which makes one a "citizen of the United States" from the moment of birth is a "natural born Citizen," regardless of where or to whom born. He concludes:
"That is how legal experts interpret the 'natural born' requirement.. and how you get that status is actually pretty open. Until the Supreme Court weighs in on this issue (and there are no plans that we know of that that will happen)... -- to your emails... Senator Marco Rubio and Governor Bobby Jindal are both eligible to run and become Vice President or President."
There are several problems with Mr. Baier's argument:
1. He fails to understand that “Citizens of the United States” and their “natural born Citizen” children already existed since after July 4, 1776 and before the Constitution was adopted in 1787. The Founding generation knew who those citizens were. That generation abandoned the English feudal and monarchial notion of subjecthood and perpetual allegiance to the King. They replaced the notion of membership in the civil society by calling their members “citizens” and “natural born Citizens” rather than “subjects” and “natural born subjects” and providing that children followed the political condition of their parents who by free will selected that condition for them until their age of majority at which time they were free to accept or change that choice, not that of some King without choice and for life. While the Constitution itself does not define a "natural born Citizen," historical evidence and case law from the U.S. Supreme Court and other courts do so. That evidence shows that a "natural born Citizen" is a child born in the United States to parents who at the time of their birth were both either "natural born Citizens" or "citizens of the United States." See my blog at http://puzo1.blogspot.com/ for a discussion of this historical evidence and case law.
2. Regarding Presidential eligibility, Article II, Section 1, Clause 5 provides:
“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.”
This eligibility clause shows that the Framers during the period that the grandfather clause of Article II, Section 1, Clause 5 was in effect (for births prior to the adoption of the Constitution), allowed naturalized citizens to be eligible to be President. After the grandfather clause expired (for births after the adoption of the Constitution), it was no longer sufficient to be simply a “citizen of the United States” to be eligible to be President, for such citizens also include naturalized citizens. Rather, one had to now show that one was a “natural born Citizen” which was not a naturalized citizen by any positive law.
3. The Founders and Framers required that future Presidents and Commanders in Chief of the Military be "natural born Citizens" so as to assure that they would be born with undivided and sole allegiance and love of country only to theUnited States Union ." Alexander Hamilton, The Federalist, No. 68. Persons who are “citizens of the United States United States
4. The Constitution on matters of citizenship in Article I, Section 8, Clause 4 gave Congress the power only to naturalize persons to become “citizens of the United States.” This power could not and does not include the ability to define a “natural born Citizen” any differently than how the People who adopted the Constitution defined that term. To give Congress such power would give it power to change the presidential eligibility requirements of Article II, Section 1, Clause 5 without constitutional amendment. So the Constitution gave power to Congress to add through naturalization more citizens to the original “Citizens of the United States” and “natural born Citizens.” But such power did not include the power to make more “natural born Citizen” other than by birth in the United States to citizen parents. We can see that Congress only uses the clause "citizen of the United States" in its naturalization acts, including the statutes cited by Mr. Baier. In none of the statutes cited by Mr. Baier do we see the clause "natural born Citizen."
5. Mr. Baier would like for us to believe that all "legal experts" agree with him. That is an outlandish claim.
6. Mr. Baier would like for us to believe that his legal position is the status quo and that only by the U.S. Supreme Court changing it will the law change. The truth is that there is no U.S. Supreme Court decision that agrees with his position. Hence, what he says is not the legal status quo. Rather, the last time the U.S. Supreme Court ruled on the matter as to what is a “natural born Citizen” was in Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) (decided after the Fourteenth Amendment was adopted in 1868 and holding 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"). What Minor said about a “natural born Citizen” was confirmed in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (acknowledging and confirming Minor’s American common law definition of a “natural-born citizen” but adding based on the English common law that since “‘[t]he child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle [birth in the country]’” (bracketed information supplied), a child born in the United States to domiciled alien parents was a Fourteenth Amendment “citizen of the United States”). This American common law definition of a “natural born Citizen” has never been changed, not even by the Fourteenth Amendment (only uses the clause "citizen of the United States" and does not mention "natural born Citizen") or Wong Kim Ark, and therefore still prevails today. Both those U.S. Supreme Court cases define a "natural born Citizen" as a child born in a country to parents who are citizens of that country. Hence, it is Mr. Baier who needs a U.S. Supreme Court decision to change the current status of the law, not us who know what the law is.
Based on the current state of the law as presented by the historical record and our U.S. Supreme Court, putative President Barack Obama (born to a British/Kenyan father in an undetermined location), Senator Marco Rubio (born to Cuban parents in the United States), and Senator Bobby Jindal (born to Indian parents in the United States) are all not “natural born Citizens.” That means that under Article II, Section 1, Clause 5, none of them are eligible to be elected President or Vice-President.
Mario Apuzzo, Esq.
May 1, 2012
http://puzo1.blogspot.com/
####
Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
Citizen”
By Mario Apuzzo, Esq.
May 1, 2012
Read this article entitled, “Bret explains "natural born citizen" requirements for president and vice president, posted at http://www.foxnews.com/on-air/special-report/blog/2012/05/01/bret-explains-natural-born-citizen-requirements-president-and-vice-president#ixzz1tdaf5KNc . The post is by a Katy Ricalde. She posts the argument of Bret Baier as to how a "natural born Citizen" is defined. Baier argues that since the Constitution does not define a "natural born Citizen," the Constitution allows Congress to do so through its naturalization statutes such as those found at 8 U.S.C. Sec. 1401 et seq. He concludes that any Congressional Act which makes one a "citizen of the United States" from the moment of birth is a "natural born Citizen," regardless of where or to whom born. He concludes:
"That is how legal experts interpret the 'natural born' requirement.. and how you get that status is actually pretty open. Until the Supreme Court weighs in on this issue (and there are no plans that we know of that that will happen)... -- to your emails... Senator Marco Rubio and Governor Bobby Jindal are both eligible to run and become Vice President or President."
There are several problems with Mr. Baier's argument:
1. He fails to understand that “Citizens of the United States” and their “natural born Citizen” children already existed since after July 4, 1776 and before the Constitution was adopted in 1787. The Founding generation knew who those citizens were. That generation abandoned the English feudal and monarchial notion of subjecthood and perpetual allegiance to the King. They replaced the notion of membership in the civil society by calling their members “citizens” and “natural born Citizens” rather than “subjects” and “natural born subjects” and providing that children followed the political condition of their parents who by free will selected that condition for them until their age of majority at which time they were free to accept or change that choice, not that of some King without choice and for life. While the Constitution itself does not define a "natural born Citizen," historical evidence and case law from the U.S. Supreme Court and other courts do so. That evidence shows that a "natural born Citizen" is a child born in the United States to parents who at the time of their birth were both either "natural born Citizens" or "citizens of the United States." See my blog at http://puzo1.blogspot.com/ for a discussion of this historical evidence and case law.
2. Regarding Presidential eligibility, Article II, Section 1, Clause 5 provides:
“No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution shall be eligible to the Office of President; neither shall any person be eligible to that Office who shall not have attained to the Age of thirty five Years, and been fourteen Years a resident within the United States.”
This eligibility clause shows that the Framers during the period that the grandfather clause of Article II, Section 1, Clause 5 was in effect (for births prior to the adoption of the Constitution), allowed naturalized citizens to be eligible to be President. After the grandfather clause expired (for births after the adoption of the Constitution), it was no longer sufficient to be simply a “citizen of the United States” to be eligible to be President, for such citizens also include naturalized citizens. Rather, one had to now show that one was a “natural born Citizen” which was not a naturalized citizen by any positive law.
3. The Founders and Framers required that future Presidents and Commanders in Chief of the Military be "natural born Citizens" so as to assure that they would be born with undivided and sole allegiance and love of country only to the
4. The Constitution on matters of citizenship in Article I, Section 8, Clause 4 gave Congress the power only to naturalize persons to become “citizens of the United States.” This power could not and does not include the ability to define a “natural born Citizen” any differently than how the People who adopted the Constitution defined that term. To give Congress such power would give it power to change the presidential eligibility requirements of Article II, Section 1, Clause 5 without constitutional amendment. So the Constitution gave power to Congress to add through naturalization more citizens to the original “Citizens of the United States” and “natural born Citizens.” But such power did not include the power to make more “natural born Citizen” other than by birth in the United States to citizen parents. We can see that Congress only uses the clause "citizen of the United States" in its naturalization acts, including the statutes cited by Mr. Baier. In none of the statutes cited by Mr. Baier do we see the clause "natural born Citizen."
5. Mr. Baier would like for us to believe that all "legal experts" agree with him. That is an outlandish claim.
6. Mr. Baier would like for us to believe that his legal position is the status quo and that only by the U.S. Supreme Court changing it will the law change. The truth is that there is no U.S. Supreme Court decision that agrees with his position. Hence, what he says is not the legal status quo. Rather, the last time the U.S. Supreme Court ruled on the matter as to what is a “natural born Citizen” was in Minor v. Happersett, 88 U.S. (21 Wall.) 162 (1875) (decided after the Fourteenth Amendment was adopted in 1868 and holding 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"). What Minor said about a “natural born Citizen” was confirmed in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (acknowledging and confirming Minor’s American common law definition of a “natural-born citizen” but adding based on the English common law that since “‘[t]he child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle [birth in the country]’” (bracketed information supplied), a child born in the United States to domiciled alien parents was a Fourteenth Amendment “citizen of the United States”). This American common law definition of a “natural born Citizen” has never been changed, not even by the Fourteenth Amendment (only uses the clause "citizen of the United States" and does not mention "natural born Citizen") or Wong Kim Ark, and therefore still prevails today. Both those U.S. Supreme Court cases define a "natural born Citizen" as a child born in a country to parents who are citizens of that country. Hence, it is Mr. Baier who needs a U.S. Supreme Court decision to change the current status of the law, not us who know what the law is.
Based on the current state of the law as presented by the historical record and our U.S. Supreme Court, putative President Barack Obama (born to a British/Kenyan father in an undetermined location), Senator Marco Rubio (born to Cuban parents in the United States), and Senator Bobby Jindal (born to Indian parents in the United States) are all not “natural born Citizens.” That means that under Article II, Section 1, Clause 5, none of them are eligible to be elected President or Vice-President.
Mario Apuzzo, Esq.
May 1, 2012
http://puzo1.blogspot.com/
####
Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved
79 comments:
Fox article doesn't allow one to log in to post comments or rebuttals. Pure coincidence, I'm sure...
Maybe Mr. Baier is trying to ingratiate himself with the White House after their internal memo leaked calling him a lunatic.
Email: katyricalde@yahoo.com (Katy Ricalde @ Fox News. From the ORYR site)
https://twitter.com/#!/BretBaier (Bret Baier's twitter account)
https://twitter.com/#!/SRGrapevine (Bret Baier's Special Report Grapevine)
http://www.bretbaier.com/contact/index.php
Email: special@foxnews.com (Special Report with Bret Baier. From fair.org)
"5. Mr. Baier would like for us to believe that all "legal experts" agree with him. That is an outlandish claim."
That would include every judge who has given an opinion in US history. Sounds less than outlandish to me.
In the founding and framing period, the first 'citizens' were self proclaimed.
The children of these self proclaimed "citizens", who were in their minority (under-age), would have been "natural born Citizen"s, due mainly by natural descent.
Native-birth could not have been sufficient to make a "natural born Citizen", as it would have included the children of those people who were not a part of the revolution, the non-citizen, the sojourners, "fence-sitters", loyalists.
The Obots are all over the internet misrepresenting what Minor and Wong Kim Ark decided and did not decide.
Minor in 1875 told us that there was no doubt as to who was a "natural-born citizen." It defined one as a child born in a country to parents who were its citizens. Minor added that despite what “some authorities” maintained, “there have been doubts” whether a child born in a country to alien parents was a “citizen” and by extension a "citizen of the United States" under the Fourteenth Amendment. It did not say that there were any doubts whether that child was a “natural-born citizen.” It therefore did not leave open any question whether that child was a "natural born Citizen." It only left open the question whether that child was a “citizen.”
Wong Kim Ark in 1898 answered the question left open by Minor. It said that such a child is a Fourteenth Amendment "citizen of the United States." It arrived at its holding by saying that by the fact of being born in the country, the child of alien parents was just as much a “citizen” as the natural born child of citizen parents. Here is the actual quote from the Court: “‘[t]he child of an alien, if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle [birth in the country]’” (bracketed information supplied).
In order for Wong to be a “natural born Citizen,” he had to first show that he was a “citizen.” The dissent maintained that he was not even a “citizen,” let alone a “natural born Citizen.” The dissent in Wong Kim Ark in referring to eligibility to be President was only addressing the lower court’s position that Wong was a “natural born Citizen.” Again, the majority in Wong, although the issue was well raised both in the lower court and in the Supreme Court, never held that Wong was a “natural born Citizen.” It only held that he was a “citizen.” Hence, the dissent’s comments on that point prove nothing.
So there you have it. Virginia Minor, born in the United States to citizen parents, was a “natural-born citizen.” Wong, born in the United States to alien parents, was a "citizen" under the Fourteenth Amendment, but not a "natural born Citizen" under Article II.
We might give Bret Baier a D for originality. That is, he has found a rather clever sounding argument. But on closer inspection one might wonder at the Founders just carelessly tossing undefined and arcane phrases into a document which they at least were taking very seriously. So otherwise, we have to be honest and give Mr.Baier an F. As a journalist though he is probably shameless and his grade need not be publicly displayed anywhere except here. And here is clearly not a place he would ever be likely to come.
What worries me is the number of people proud of their learning and intelligence who will fall for an argument like this.
Reality Check,
We are not in a court of law. Now we are in the court of public opinion. Here you either sink or swim on your own. Hence, make your case here or you lose.
Mario,
Court do not like to admit they are wrong. This may be why the courts have failed to give a real independent meaning of the Constitutional term of "Natural Born Citizen." The courts know they are wrong and won't admit it. The courts also know the intense Constitutional Ramifications of ruling on what NBC is contary to Obama's circumstances. No court is brave enough or has courage to admit mistake and rule on the law.
Puzo1:
Methinks that Reality Check has already made his "point" - and lost.
The only judges who have formally commented upon the term "natural born Citizen" with the force of law to define its meaning were a number of Supreme Court justices in 1875 (Minor ...) and that is legal precedent and has never been overturned no matter how much the media flacks defending Obama might wish it otherwise and so pronounce.
Perhaps Mr. Baier could lay out the legal precedents that he believes govern. Neither he nor Reality Check ave done so
Sent an email to Brett Baier advising him he was wrong. Following is his answer:
Thanks Harry for the email… as you can see by my post – there is a lot of debate about that. This is how many legal experts we talked with here in Washington.. describe it. But.. as I also said.. the term is undefined by the founding fathers.
We’ll do a story and a panel on it.
Bret Baier
Anchor, "Special Report with Bret Baier"
Fox News Channe
The Life and Opinions of Tristram Shandy, Gentleman by Laurence Stern. Now I doubt there are many readers that can go through this novel without reference to a good dictionary. However, if readers just adopted their own definitions and especially if this was done by graduate students in English literature, they would find a good many professors strongly responding. Simply not knowing what a word or phrase means in something written a century or more ago is not liberty to invent. And yet this has become the case in 21st century America today. My daughter who is a junior in college had no trouble at all grasping the material presented here and realizing its importance not only with respect to the natural born citizen phrase but also to the Bill of Rights. A libertine approach to the Constitution will abridge our freedoms, not amplify them. In their own way journalists like Bret Baier are first rate traitors. Maybe they sleep the sleep of the just (with the aid of Ativan) but there is a worm in their conscience which will eventually devour their sanity.
"the term is undefined by the Founding Fathers." Firstly, we are not dealing with Finnegans Wake (James Joyce)--but even with this monstrosity of ambiguity scholars have managed to figure out a great deal. Secondly, the way Baier states this suggests a duty left undone--as though the Founders in some kind of haste left the barn door open. But of course Baier is simply scuffling around in his own lack of education and not sitting on some imponderable puzzle. I wonder how much literature from the 18th century he has under his belt. Is he a scholar of that century? As for the attorneys like all professionals there are usually a bunch who belong to the go along to get along crowd. And those like the physicians who balked at the idea of hygiene. This is such a deplorable bit of journalistic tripe . . .
Thirdly, Baier obviously can't accept the possibility that in the late 18th century only a pedant would bother to define a commonly understood phrase. I wonder if Baier spends a good deal of time each slithering in the dust.
The Minor court would have stated that "THE COMMON LAW goes further and includes as citizens, etc, etc"... RATHER THAN....
"SOME AUTHORITIES go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents."
Why would the supreme court judges say "some authorities" if they really "knew" and meant that it was "common law"???
Based on the Obots claim that English common law provides that native birth alone suffices to make a "natural born", then ....
It is IMPOSSIBLE for the Minor court to have been referring to the English "common law", because if English "common law" itself recognized native-birth as sufficient to make a "natural born", then the Minor court would have not even mentioned "authorities", but rather "common law" instead.
Nor would the Minor court have recognized any un-solved doubts about native birth being sufficient to make an NBC, if they really believed that native-birth sufficed to make a "natural born".
The judges would not have recognized an doubts, nor that the doubts were un-solved.
Alternatively, IF the Minor court WAS really referring to the English "common law", then, the English common law must hold that native birth alone DOES NOT suffice to make a "natural born", and that the subject/citizen status of the parents is the determining factor in making a "natural born", thus the doubts were because of alien parentage of a native born.
---------------------
Puzo1 said...
The Obots are all over the internet misrepresenting what Minor and Wong Kim Ark decided and did not decide.
Minor in 1875 told us that there was no doubt as to who was a "natural-born citizen." It defined one as a child born in a country to parents who were its citizens. Minor added that despite what “some authorities” maintained, “there have been doubts” whether a child born in a country to alien parents was a “citizen” and by extension a "citizen of the United States" under the Fourteenth Amendment. It did not say that there were any doubts whether that child was a “natural-born citizen.” It therefore did not leave open any question whether that child was a "natural born Citizen." It only left open the question whether that child was a “citizen.” "
Mr. Apuzzo - the educatin' continues...
When the BIG Talker "thought leaders" on radio or tv talk about the Constitution and the meaning of an 1787 Article 2, Section 1, Clause 5 "natural born Citizen" in a generic sense, without reference to the OCCUPIER-in-Chief BHObama, that is an opportunity to cause a fumble and pick up the ball and run with it...
... so, here goes, one small step for "we the people" and a common sense foundational understanding about
- the 1787 Constitutional Convention "adoption" of Article 2, Section 1, Clause 5 and "natural born Citizen...
- BEFORE it was "ratified" in 1788...
- BEFORE the new U.S. Government "began" in 1789
- and General George Washington was elected President two months later... in compliance with the Constitution "adopted" in 1787.
- - - - - - - - - -
Just 8 easy questions, no tricks, for emails to Bret Baier and other BIG Talker "thought leaders" on radio and tv -
1-
Does an Article 2, Section 1, Clause 5 "natural born Citizen" refer to a child born on U.S. soil to two U.S. "Citizen" parents?
2-
Does an Article 2, Section 1, Clause 5 "natural born Citizen" refer to a child born on U.S. soil to one U.S. "Citizen" parent and one non-U.S. "Citizen" parent... whether the papa is known to be foreign born or unknown as the result of rape?
3-
Does an Article 2, Section 1, Clause 5 "natural born Citizen" refer to a child born on U.S. soil to zero U.S. "Citizen" parents?
4-
Does an 1787 Article 2, Section 1, Clause 5 "natural born Citizen" mean the same thing as an 1787 "Citizen?"
4a-
Why?
4b-
Why not?
5-
Does an 1787 Article 2, Section 1, Clause 5 "natural born Citizen" mean the same thing as an 1868 14th Amendment "Citizen?"
5a-
Why?
5b-
Why not?
6-Does and 1868 14th Amendment "Citizen" mean the same thing as an 1787 "Citizen?"
6a-
Why?
6b-
Why not?
7-
Does a child born on U.S. soil to two non-U.S. "Citizen" parents qualify to be POTUS?
7a-
Why?
7b-
Why not?
8-Does a child born on U.S. soil to one U.S. "Citizen" parent and one non-U.S. "Citizen" parent qualify to be POTUS?
8a-
Why?
8b-
Why not?
- - - - - - - - - -
Of course, Mr. Arpuzo, there are many more questions to ask "anti-birther" misunderstanders of
the ORIGINAL intent of
the ORIGINAL words of
the ORIGINAL "birther" document of our Republic,
the U.S. Constitution, specifically Article 2, Section 1, Clause 5,
but apparently the educatin' is still in progress with the
- BIG Talker "thought leaders" on radio and tv, and the
- BIG Writer "thought leaders" in print, and the
- BIG Blogger "thought leaders" on the web.
Art
"A libertine approach to the Constitution will abridge our freedoms, not amplify them. In their own way journalists like Bret Baier are first rate traitors. Maybe they sleep the sleep of the just (with the aid of Ativan) but there is a worm in their conscience which will eventually devour their sanity."
Hear, hear!
The notion that the Framers were just throwing words around...inserting phrases into the Constitution that had no objective meaning...is simply laughably absurd.
Thus Baier's infantile drivel is entirely self-refuting, and doesn't merit a substantive reply.
Unfortunately, this kind of nonsense from the traitorous apologists for the state, has by now become boringly commonplace.
But don't forget: This embarrassing drivel isn't intended to fool reasonable people; rather, it's intended to the give the masses of fools and moral cowards an excuse to not think, and that is a top priority.
The moral cowards can never question the "state", because questioning the state they support, means questioning themselves...it means looking in the mirror...which they will never, ever allow themselves to do.
Thus as the state waxes worse and worse, starting more wars, stealing more money, doing more lying and raping and robbing and killing, the moral cowards must likewise wax ever more fanatical in defense of the state (and by extension, themselves), and the propaganda they need to fool themselves must wax ever more absurd accordingly.
I of II
4zoltan,
I can speculate that Massachusetts going back and forth between a “natural born citizen” and a “natural born subject” in its naturalization laws could have been caused simply by which lawyer or member of the legislature wrote its naturalization laws at any given moment in its history. If it had a lawyer or legislator who was then attached to new republican principles, he used “natural born citizen” which was the new term the Founders and Framers adopted to describe the new membership in the republic. But if the commonwealth had a lawyer or legislator who still longed for the English common law, he called them “natural born subjects.” But any of that does not prove what the correct definition of a “natural born Citizen” was on the national level.
Without speculation, we do know these facts. Prior to July 4, 1776, each colony decided for itself who were its “subjects.” That practice continued until the Constitution went into effect in 1789 or until the First Congress passed the Naturalization Act of 1790. After those events, the meaning of a “citizen” and a “natural born Citizen” came from national law, not the law of a state such as Massachusetts which had retained the English common law for its state matters until abrogated by state statutes. Indeed, with the new federal system, the definition of a “natural born Citizen” pertained to a national political right, not a state one. Even Congress, and Congress alone, was given the exclusive power by the Constitution to make uniform our naturalization laws. And given the way the colonies all had different laws on naturalization and even Massachusetts going back and forth with the terms it used for its naturalized citizens, we can see why the Founders deemed it necessary to unify naturalized citizenship under the powers of Congress.
Hence, in looking for the definition of a “natural born Citizen,” we have to look to that national law that the Founders and Framers adopted to define a “citizen” and “natural born Citizen.” Critical in this connection is the fact that in matters of citizenship the nation never adopted the English common law as part of its national law. Rather, the nation adopted natural law and the law of nations as a guide to define the new national citizenship. When our nation adopted that law at the Founding, that law became part of American common law and was incorporated into the Article III “Laws of the United States.” With this new national law as the guiding light, whatever Massachusetts called its citizens no longer mattered. As Minor v. Happersett informed in 1875, it was now “common-law” that controlled the definition of a “citizen.” That “common-law” could not have been the English “common-law,” for Minor told us that “there have been doubts” whether a child born in the United States to alien parents was even a “citizen.” Under English common law, there would simply not have been any such doubts.
Continued . . .
II of II
American common law provided that a child born in a country to citizen parents was not only a “citizen,” but also a “natural-born citizen.” The Framers left it up to Congress to determine how to treat children born in the United States to alien parents. Congress did so in the Naturalization Acts of 1790, 1795, 1802, and 1855. These statutes treated such children as aliens. These statutes also dealt with the citizenship status of children of U.S. citizens born out of the United States, giving them (except for the short-lived 1790 act which gave “natural-born citizen” status) the status of “citizens of the United States.” These federal statutes abrogated any English common law that may have continued to prevail in any state of the Union and which at one time granted citizenship to children born in those states, regardless of the citizenship of the parents. Hence, under the new national scheme, only a child that was born in the United States to citizen parents could be a “natural born Citizen.”
One other point on the English common law deserves mentioning. The original constitution included the law of nations as part of the “Laws of the United States.” It did not do the same for the English common law. The Bill of Rights, which were ratified in 1791, did bring into the Constitution important rights that had existed under the English common law. But none of those amendments covered matters of national citizenship.
All this shows that when the Founders and Framers chose the clause “natural born Citizen,” and given that they did not see any need to define the clause, they could have only thought such a “citizen” to be a child born in the country to citizen parents. Such a definition satisfied the definition of citizenship of all nations and of all laws of the civilized world. The Founders and Framers concluded that no law was necessary to define a “natural born Citizen.” Rather, it was his or her birth circumstances accepted by civilized nations that gave him or her that special national character. They did not and could not have adopted a definition of the clause based on the jus soli principles of the English common law which was not universally accepted by those civilized nations. Moreover, they would not have seen any need to grant eligibility to be President to children born in the United States to alien parents, for such children would have come into existence only in the future and would have been handled by Congress under its naturalization powers.
The constitution was written in plain colonial style english by scollars the likes of which have yet to be born. Colonial yes but plain english none the less. Todays so called scollars who attempt to contort the constitutions true meaning for their own gain, be that what it may, are traitors. They themselves should be stripped of their citizenship and banished....
Time for a bit of humor.
"Honest" John Woodman in full bleat mode.
" The critical claim that Chinese-American Wong Kim Ark, born on US soil of two Chinese parents, was found by the US Supreme Court to be only a “citizen” and not a natural born citizen has been destroyed.
The flagship claim that the US Supreme Court in Minor v Happersett defined “natural born citizen” as “a person born on US soil of two citizen parents” has been ground into the dust over the course of five articles.
The equally important claim that the Founding Fathers and Framers of the Constitution relied on Vattel, rather than on the English common law, for the concept of “natural born citizen” has been pulverized — here too.
The claim that the citizenship law Thomas Jefferson wrote for the Commonwealth of Virginia in 1779 only gave citizenship to children born on Virigina soil if their parents were already citizens has been thoroughly debunked.
And the claim that “Congress in the Naturalization Acts of 1790, 1795, 1802, and 1855 told us that a child born in the U.S. to alien parents was not even a ‘citizen’” has been shown to be absolutely false."
John, can you explain how the English "common law" that was "relied on by the Framers" (according to the Minor court) somehow provided for there to be "doubts" as to native birth being sufficient to make a "natural born"?
John, how come the Minor court recognized the doubts and stated that the doubts were not yet solved?
If in fact the POTUS already held that native birth was all that was needed to make a "natural born", then why John, why?????
Waiting John.
MichealN,
I do not expect to get any reasonable answer from John Woodman. He does not even know what American "common law" is or where it came from in the early years of the Republic.
All of this can be laid at the feet of Orrin Hatch.
For years he tried to amend the Constitution to allow Arnold Schwarzenegger to run for President.
He could not get it through the front door of the Senate.
So, the Senate and Washington insiders have been engaged in a 'back-door' amendment to the U.S. Constitution by setting precedents of nominees and elected officials running for office by flooding the system with candidates who are clearly not eligible -- Marco Rubio and Bobby Jindahl for the Republicans, and Obama and Bill Richardson for the Democrats.
They then call anyone who calls them on this a 'bigot!'
Jesse Jackson, Jr. is eligible, but Marco Rubio is not.
That is not the statement of a 'bigot,' but someone who believes in the U.S. Constitution.
Perhaps someone could tell me how to "choose an identity" other than Anonymous. I have a blog with Wordpress.org--but that does not work. I have not been able to figure out how to use OpenID via Gulag, oops, I mean Google . . . Thanks.
Mr. Apuzzo,
"I can speculate"
Or it could be that they considered both terms to mean the same thing.
We know that John Adams used "citizens of the Commonwealth" and "subjects of the Commonwealth" in the 1780 Constitution of Massachusetts. And we know that in 1798 the Massachusetts legislature passed a resolution titled "Resolve Requesting the Senators and Representatives in Congress to Propose an Amendment to the Constitution Providing, that none but Natural Born Subjects be eligible to certain offices" which goes on to request that Senators and Representatives must be "natural born Citizens".
Mario,
Don't forget, it was the Madison administration (in 1811) that refused to acknowledge "citizenship" (let alone "natural born Citizenship") based solely on being born in country.
The case of James McClure, born in North Carolina in 1785 to a father who was naturalized months later in 1786, illustrates that:
1) There was NO uniform jus soli (or, born in the country) laws in the country that gave citizenship to children born here to foreigners
because
2) The Government of the U.S. did NOT recognize such claims
and
3) Some STATES did NOT recognize such claims (jus soli). Ex. North Carolina had no such law in 1785.
The case of James McClure is a very important one when understanding that not all states followed jus soli, and that the federal government did NOT either. The Madison administration didn't even recognize James McClure (born in North Carolina, 1785) as a "citizen."
Correction
James McClure was born in SOUTH Carolina (not North Carolina).
Puzo1:
Why don't you contact Brett Baier and offer to be an informed member of his (supposed) "panel discussion" mentioned above about the nbC meaning. No doubt he's interested in an informed discussion representing all sides of the matter (as any good journlist would be -:)).
If you do that I'm sure you can do so by either an audio or video link and not have to travel to Brett's locale.
Should you get an affirmative answer and date, I'll contact Jerry Corsi and suggest the same thing to him.
Please advise!
Puzo1:
Perhaps you should contact Brett Baier and offer to be one of the panelists on his supposed even-handed discussion of all sides of the nbC issue ... assuming he is, as any good journalist would be, interesting in presenting differing views and not just the monolithic propaganda views of his unnamed "Washington experts" on the matter.
I'm sure he could connect you via either an audio or viedo link remotely so you needn't travel to his locale. You can explain to him about the hands-on involvement you've had with the issue and the Constitution, but of course he might prefer Bill O'Reilly or Bob Beckel.
If he agrees to a date for such, please let me know and I'll urge Jerry Corsi to do likewise. If he's not interested then THAT is meaningful also. Please advise!!
http://thesteadydrip.blogspot.com/2012/05/fox-news-bret-baier-craps-on.html
Would Obama, born white or black, have been considered even a US Citizen at birth in 1790, if born of an alien father? The answer of course is no.
And since the nbC clause has never been amended, then it is impossible that Obama is a nbC today.
Simple Logic beats the liars every time.
Congress' only role, outside of the CON CON, is w/ respect to "laws of the US", not the US Constitution. The "laws of the US" must be w/ discretion to the US Constitution.
Baier is actually saying that a child born abroad of 1 US Citizen parent is nbC? That's what happens w/ an illogical argument--- it gets twisted up in knots!
OBVIOUSLY this comes from the WH.
rxsid,
Regarding the early naturalization acts and the James McClure case, today at 2:17 p.m., I left the following comment for ballantine at John Woodman's blog:
ballantine,
Rather than always repeat that everything that I say has been debunked and talking about the lack of authorities either way, why not address the text of Jefferson's citizenship laws which is pretty straightforward?
It is simply absurd to think that Congress, before the Fourteenth Amendment was passed, did not have the capacity under its naturalization powers to declare that children born in the United States to aliens were themselves aliens.
And for your information, "Publius" (probably James Madison) agrees with me on how I read the early naturalization acts of Congress. An 1811 Publius article states that James McClure was born in the United States on April 21, 1785. His father was a British subject at the time of his birth. On February 20, 1786, his father naturalized to be a citizen under the laws of South Carolina. McClure remained in the United States until 1795 when he was sent to England for his education. He never returned to the United States. His father also returned to his country, Great Britain.
Publius on October 7, 1811, in The Alexandria Herald, concerning the “Case of James McClure,” published:
"Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States—he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does—for, “all free persons born within the territory of this commonwealth,” is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen, but the U. States’ act does not go so far. A man must be naturalized to make his children such."
See Leo Donofrio's article at http://naturalborncitizen.files.wordpress.com/2011/12/alexandria-herald.pdf which explains this find by a internet researcher.
So what do you have to say, ballantine?
Indeed Mario.
The link to Leo's write up regarding the James McClure case is:
http://naturalborncitizen.wordpress.com/2011/12/28/the-publius-enigma-newly-revealed-evidence-establishes-that-president-james-madisons-administration-required-citizen-parentage-to-qualify-native-born-persons-for-u-s-citizenship/
I believe the other link you've posted is to a pdf image of part of the 1811 newspaper article.
This James McClure case really is key.
It clearly domonstrates that not all states followed the jus soli principles of the English common law.
And, most importantly, the federal government (in 1811) under non other than the father of the Constitution, didn't even recognize children born in the country to aliens parents as citizens...let alone NBC.
Clearly, Madison didn't think English Common Law ruled federal guidlines on citizenship.
Some big Repub muckety muck has come late to the party. He uses Freemont and Arthur to legitimize Rubio.
http://www.humanevents.com/article.php?id=51134#comments
rxsid,
See this comment to me at Woodman's site:
"gorefan says:
May 2, 2012 at 4:13 pm
The National Archives has a copy of this Monroe letter which reads:
Joel Barlow Esq. Department of State
Paris Nov. 27, 1811
Sir
I have the honor to enclose several affidavits and certificates just handed to me by Mr. Cheves the Representative in Congress from the City of Charleston proving that James McClure now detained in France as a British Prisoner of War was born in Charleston since the Revolution. To these Papers is annexed a Certificate of W[illiam] Johnson Esq. one of the Justices of the Supreme Court of the United States before whom the affidavits were taken stating “that agreeable to the laws and usage of the United States, the said affidavits and Certificates are sufficient to establish the fact that James M McClure above named is a Citizen of the United States.” As such he must be considered by this Government. You will therefore interpose your good offices in his behalf and obtain his release from confinement as soon as possible.
I have [the honor]
James Monroe
Secretary of State Monroe specifically mentions the fact that he was born in Charleston after the Revolution and makes no mention of his father. That would not have been necessary if McClure’s citizenship was based on the Naturalization Act of 1802."
I of II
rxsid,
Here is my reply to gorefan:
gorefan,
The Publius article which was published in The Alexandria Herald stated what the Naturalization Act of 1802 said regarding children born in the U.S. to alien parents. It said they were not citizens which is the same that I have argued. There is no record of anyone writing back and taking issue with that interpretation of that naturalization act. If it was so clear and established that the act said what you say it says, i.e., that it only applied to children born out of the United States, why would someone who was so familiar with the McClure case invent such an interpretation in 1811? According to John Goodman and ballentine, since Publius says the same as what I have said about the acts, looks like both Publius and I cannot read English.
That Secretary of State James Monroe almost two months later after the article published decides to intervene and state that McClure was a citizen does not prove your point. We do not know whether this was anything but a political decision made by the U.S. Government for who knows what reason. There is nothing in Monroe’s letter that addresses what the law on citizenship was. You have not provided the affidavits and Certificates which Monroe said were “sufficient to establish the fact that James M McClure above named is a Citizen of the United States.” I want to see by what reasoning James Monroe arrived at his decision before I can give more weight to what he wrote than I give to Publius who was most likely James Madison.
Lynch v. Clark, 1 Sandf.Ch. 583 (1844), reported in the New York Legal Observer, in 1844 also attempted as you do to explain away the early naturalization acts. In Lynch, the plaintiffs also argued that the naturalization acts also applied to children born in the United States. Add another to your list of people who cannot read the English language. The court conceded that “[t]he acts make no distinction between children born here, and those born abroad.” Id. at 258. But then simply ignoring the plain text of the acts, the court said that they applied only to children born abroad. The court said that since the amount of children born in the United States to aliens was so small in comparison to those born to aliens out of the United States, it was not “necessary” for Congress to act upon them and such children were therefore to be removed from the reach of the statutes. It would have been nice if Congress said that rather than a court which was suppose to only interpret what Congress plainly wrote.
The court then used the fact that the Naturalization Act of 1804 did not distinguish between widows who were born in the United States and those who were born abroad as justification for its decision to limit the acts just to children born abroad. Apart that it is highly suspect for the court to use a provision about women in the 1804 act to interpret a provision about children in the 1802 act, the court’s point makes no sense given that wives followed the citizenship of their husbands and therefore there was no need for Congress to make any distinction between widows who were born in the United States or abroad. In other words, any woman marrying an alien became an alien if she was a U.S. citizen and remained an alien if she was herself an alien. I cannot imagine that the court did not know that Congress understood based on natural law and the law of nations that both wives and children followed the citizenship of the husbands and fathers.
Continued . . .
II of II
The court then said: “[u]pon the whole, the implication claimed from these statutes, is not a necessary one, and cannot be raised to overturn an established legal principle.” But it was up to Congress to say what was or what was not necessary. Also, in the very decision the court repeatedly said that the English common law would not have any application in defining national citizenship if there was a Congressional statute that abrogated it. Now in total contradiction, it said that an Act of Congress could not be raised to overturn the English common law which it said was “an established legal principle.” What is amazing is that the court thrust the English common law jus soli citizenship rule upon the national government when the historical record shows that the Founders and Framers, while adopting in 1791 only certain English common law rights through the Bill of Rights, did not include in that adoption the jus soli English common law rule on the national level.
Lynch did not cite to any authorities that supported its outlandish position on the meaning of the naturalization acts. The court basically just made things up about the meaning of what Congress plainly wrote. What a shameful display of judicial workmanship, all for the purpose of arriving at a preconceived result. The damage that Lynch did to citizenship jurisprudence in the United States is inestimable. Even Wong Kim Ark cited to and blindly relied upon its decision.
If you really pushed the issue, even if Barak was born in Hawaii, he was still a British Citizen at birth. There is no dispute about that, Barak admitted he was subject to the BNA of 1948 upon birth.
That term "subject to the Jurisdiction" comes in to play when aliens give birth to children in the USA.
"The word “jurisdiction” must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment… Aliens, among whom are persons born here and naturalized abroad, dwelling or being in this country, are subject to the jurisdiction of the United States only to a limited extent. Political and military rights and duties do not pertain to them. (14 Op. Atty-Gen. 300.)"
This is what was in the minds of the people who wrote the 14th Amendment. If we comply with this, that means that Barak Hussein Obama wasnt even a Citizen of the USA at birth, assuming his BC is Legit.
The Obots and their supporters, including some state administrative law judges such as New Jersey ALJ Masin, insist that the Founders and Framers defined a “natural born Citizen” by looking to an English common law “natural born subject.” I have argued that they did no such thing and that rather, they looked to natural law and the law of nations, which on matters of citizenship was codified by Vattel in Section 212 of his The Law of Nations. In this connection, consider what Madison wrote to George Washington on October 18, 1787:
"What can he mean by saying that the Common law is not secured by the new constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all the constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. The Constitution of Virga. drawn up by Col Mason himself, is absolutely silent on the subject. An ordinance passed during the same Session, declared the Common law as heretofore & all Statutes of prior date to the 4 of James I. to be still the law of the land, merely to obviate pretexts that the separation from G. Britain threw us into a State of nature, and abolished all civil rights and Obligations. Since the Revolution every State has made great inroads & with great propriety in many instances on this monarchical code. The "revisal of the laws" by a Committee of wch. Col. Mason was a member, though not an acting one, abounds with such innovations. The abolition of the right of primogeniture, which I am sure Col. Mason does not disapprove, falls under this head. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution. This objection surely was not brought forward in the Convention, or it wd. have been placed in such a light that a repetition of it out of doors would scarcely have been hazarded. Were it allowed the weight which Col. M. may suppose it deserves, it would remain to be decided whether it be candid to arraign the Convention for omissions which were never suggested to them — or prudent to vindicate the dissent by reasons which either were not previously thought of, or must have been wilfully concealed. But I am running into a comment as prolix, as it is out of place."
2 Documentary History of the Constitution, IV, 334-336. 3 Records of the Federal Convention of 1787, p. 129 (M. Farrand ed. 1911). http://www.constitution.org/jm/17871018_wash.htm.
Surely, Madison said it all regarding whether the Founders and Framers adopted the English common law or its "antirepublican doctrines" into the national republic. The Founders and Framers had a revolution to change American government from a monarchy to a republic. Jus soli and subjecthood to a King for life was considered monarchial, feudal, and "antirepublican." On the other hand, citizenship through consent of the parents, with the right of children to make their own decision upon reaching the age of majority, was republican.
Excerpt;
"...2. The Constitution has been determined to be the Supreme Law of the land and Statutory in its construction, therefore any interpretation of a provision within the Constitution or legislation made under its authorities requires that any interpreted definitions of words and their meanings, be consistent with the intent of the provision.
3. The Constitution clearly, without ambiguity or discretionary language, intends the term of words of natural born Citizen to mean a form of citizenship acquired at birth in conformity to requisite circumstances that are readily identifiable and exclusive to the United States and to the exclusion of all other means of acquiring Citizenship that the Congress may thereafter adopt in that it was enunciated prior to any subsequent Acts of the Congress. ..."
Over at John Woodman's site, ballantine had this to say:
“One can debate the extent that the american common law was different than the English all day. The only relevant point is whether anyone thought our common law of citizenship was different and Mario knows that there is no early authority that says that. He also knows I can cite authority all day saying our common law of citizenship was the same as England. All he can do is say it doesn’t count.”
Then ballantine cites various state law cases (except for one lower federal court case) and commentators as “authorities” regarding what the English common law said about “subjecthood” and its application in any particular state or the United States. Then he concludes: “One could probably cite a hundred of such authorities if they wanted. I know, I know. Everyone is wrong and Mario and his anonymous writer are right.”
Too bad for ballantine that he fails to understand that the states retained the English common law to a limited degree until they abrogated it by statute, but that the federal government, except later to a limited extent through the Bill of Rights which have nothing to do with citizenship, did not adopt it. Too bad for ballantine that he fails to understand that citizenship in the United States is a national character to be determined by national law and not a state character to be decided by the outdated and outmoded English common law. Too bad for ballantine that he does not understand that the Naturalization Acts of 1790, 1795, 1802, 1804, 1855, and the Expatriation Act of 1868 abrogated the English common law on matters of citizenship. Too bad for ballantine that there is a case from the United States Supreme Court called Minor v. Happersett, 88 U.S. 162, 167-68 (1875), which in 1875 explained while specifically addressing U.S. citizenship that:
“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.
In Minor, our Supreme Court told us what it thought about what American federal “common-law” (not English common law) said about the meaning of a “natural-born citizen.” And regarding ballantine’s local and other “authorities” on the English common law, the Court also covered them. The Court while acknowledging such “authorities,” which the Court did not recognize as binding or precedential to any degree, said that “there have been doubts” whether their position that a child born in the United States to alien parents was a “citizen” (nota bene it did not say “natural-born citizen”).
And that U.S. v. Wong Kim Ark in 1898made a policy decision based in part on the English common law that such children, born in the United States to domiciled alien parents, would be allowed admission to American society as “citizens” did not change the national American “common-law” definition of an Article II “natural born Citizen” which since the Founding has been a child born in the United States to parents who are both either “natural born Citizens” or “citizens of the United States.”
I have been known to say there is no acknowledged legal, (enforceable), definition of natural born Citizen.
With the S.Res.511 110th Congress 2nd Session 4/10/08 it was noted as the CAUSE for their consideration in regard to the status of McCain;
"...Whereas the term `natural born Citizen', as that term appears in Article II, Section 1, is not defined in the Constitution of the United States; ..."
The 1790 "an Act to establish an uniform Rule of naturalization" provided;
“…And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: …”
But then in 1795 the provision was Amended in its Sec.3 to read;
"...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:..."
So, the U.S. Senate and those who prepared reports for their consideration failed to look at the US Laws on the subject and looked instead to foreign laws and unsupportable Judicial Opinions, which also failed to look at the US LAWS.
Read the 1st two acts on the subject of naturalization, (citizenship), then construe the effect of each of their provisions and then realize that their words REQUIRE the existence of 'native born' natural born Citizens who are born of a Citizen father and whose wife had acquired his citizenship, regardless of what her Citizenship may have been privious to the marriage.
Re;
Justice Waite in Minor v.;
Justice Waite, ironically, must be credited at once with adding both to the confusion and to the clarity on the subject of determining the “definition, meaning and intent” of “natural born Citizen”.
"...The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that..."
Minor v. Happersett 88 U.S. 162 [p168]
Although Justice Waite continued in his opinion expressing thoughts that would lead some to “resort” at once to Vattel and or Blackstone, which would then lead researchers down the divergent paths seeking the origins, contextual meanings and usage history might offer up.
But both the preceding and subsequent paragraphs to the citation provides a more judicious direction which would be an obligatory “resort” when responding the specific question of subject matter under the Supremacy of the Constitutional Rule of Law and the Constitutionally legislated Acts of the Congress;
(Paragraph preceding “resort” citation);
"...Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides that "no person except a natural-born citizen, or a citizen of the United States at the time of the adoption of the Constitution, shall be eligible to the office of President," and that Congress shall have power "to establish a uniform rule of naturalization."
Thus new citizens may be born* or they may be created by naturalization.
(Paragraph subsequent to “resort” citation);
“…Under the power to adopt a uniform system of naturalization Congress, as early as 1790, provided "that any alien, etc.…….
…..These provisions thus enacted have, in substance, been retained in all the naturalization laws adopted since….”
The specific provisions within the foregoing citation are omitted to emphasize the point the paragraph was making by braketing the "resort" statement by citing legislated Acts, which then leads to the necessity of further “resort” to construe the statutory construction of the first two Acts in order to determine if the “definition, meaning and intent” of “natural born Citizen” is expressed or deducible in the words or in words that would require it under the Rules established by those Acts.
The question of Minor was not if the Petitioner of the case was or was not a natural born Citizen in conformity to the entirety of the “definition, meaning and intent” of the “Clause” and accordingly Justice Waite limited his determination by concluding, “…It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens…”
He construed those circumstances as requisite under the Rules of the Acts, but was not obligated to ascertain if additional political aspects may attach by virtue of the usage within the Clause so it can be surmised he stopped shot of making a Declaratory Judgment on THAT issue so as to avoid any Political Question/Separation of Powers concerns not subject to the case at hand.
Mr. Apuzzo,
In the dissenting opinion in Wong Kim Ark, Chief Justice Fuller wrote,
"Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that "natural-born citizen" applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not."
Why didn't he cite the Minor opinion as binding precedent? He wrote the Ex Parte Lockwood decision, so he was certainly familar with it.
Mario [May 3, 2012 7:47 AM],
"In this connection, consider what Madison wrote to George Washington on October 18, 1787:"
Not only did the "father" of the Constitution state that, but the "father" of the Bill of Rights said this:
June 18, 1788 - George Mason, In Convention, Richmond (Debates in the Several State Conventions on the Adoption of the Federal Constitution):
"We have it in our power to secure our liberties and happiness on the most unshaken, firm, and permanent basis. We can establish what government we please. But by that paper we are consolidating the United States into one great government, and trusting to constructive security. You will find no such thing in the English government. The common law of England is not the common law of these states."
http://lcweb2.loc.gov/cgi-bin/query/r?ammem/hlaw:@field%28DOCID+@lit%28ed00319%29%29:
@ 4zoltan.
Why do you suppose the Minor court recognized and acknowledged doubts as to whether a native-born child, born to alien parents, was even a citizen, given it were true that the Minor court was referring to the English "common law" in the paragraph of text these doubts were mentioned, and also given that English common law mainatined that native-birth sufficed to make a "natural born subject" and "citizen" and "subject"????
I of II
4zoltan,
With respect to citizenship, Minor only answered the question of whether Virginia Minor, a woman, having been born in the United States to citizen parents, was a “citizen” from birth. In order for her to claim entitlement to privileges and immunites of Article IV, Section 2, which she claimed included the right to vote, she only had to show that she was a “citizen.” It was not necessary for her to show that she was also a “natural-born citizen.” In fact, the question that the parties presented to the Court referred to her as a “citizen” under the Fourteenth Amendment.
In the process of answering that question of whether Virginia Minor was a “citizen,” the Court first explained that Virginia Minor did not need the Fourteenth Amendment to be a “citizen.” It explained what birth circumstances since before the Fourteenth Amendment was passed allowed a child born in the United States to be a “citizen.” In telling us what a “citizen” was, the Court defined a “natural born Citizen.” It told us that the Constitution, which included the Fourteenth Amendment, did not define a “natural-born citizen,” but the “common-law” did. Under that “common-law,” the Court then presented the only circumstances allowing one to be a birthright citizen. In describing that birthright citizenship, it told us that a child born in a country to parents who were citizens of that country were not only “citizens,” but also “natural-born citizens.” Because all “natural-born citizens” were necessarily “citizens” under the Court’s definition and because Virginia Minor was a “natural-born citizen,” i.e., born in the United States to citizen parents, the Court concluded that she was a “citizen.”
In the same analysis about citizenship, the Court added that “[s]ome authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents.” The Court stated that “there have been doubts” whether this other class of persons were “citizens,” but never have there been any doubts whether the other class were “natural-born citizens” and therefore “citizens.” Note that the Court did not say that these “other authorities” did not agree with the Court’s definition of a “natural-born citizen.” Rather, it said that these “other authorities” wanted to include children born “in the jurisdiction” to alien parents as “citizens.” Note also the reference to “jurisdiction” rather than “country” which former word is one of the requirements of the Fourteenth Amendment’s citizenship clause.
Since Viginia Minor was born in the United States to “citizen” parents and therefore a “natural-born citizen” which made her necessarily a “citizen,” it was not necessary for the Court to decide if this other class of child, i.e., born in the United States to alien parents, was a “citizen” under the Fourteenth Amendment. We know, given the Court’s definition of a “natural-born citizen,” which required not only birth in a country but also birth to parents who were citizens of that country, that if that child was a “citizen,” it would have been one under the Fourteenth Amendment and not one under Article II which for those born after the adoption of the Constitution was reserved only for the children born in the United States to citizen parents.
Continued . . .
II of II
Wong Kim Ark was presented with the question left open by Minor, i.e., whether a child born in a country to alien parents was a “citizen.” While Wong was born in the United States, he was not born to “citizen” parents. Hence, he could not be a “natural-born citizen,” but rather could only be a “citizen” under the Fourteenth Amendment if it was determined that he was born “subject to the jurisdiction” of the United States. Also note that “jurisdiction” analysis is not necessary in determining whether a person is a “natural-born citizen.” So, the Court did not and had no need to analyze whether Wong was a “natural-born citizen.” Like I said, Minor did not answer the question with which the Wong Kim Ark Court was faced. Having read and studied the Minor decision (he cited and quoted it in Ex Parte Lockwood), Chief Justice Fuller knew that. So, there is no reason why Fuller in the Wong Kim Ark dissent would have cited Minor on a question that Minor did not answer.
In order for Wong to be a “natural born Citizen,” he had to first show that he was a “citizen.” The dissent maintained that he was not even a “citizen,” let alone a “natural born Citizen.” The dissent in Wong Kim Ark in referring to eligibility to be President was only addressing the lower court’s position that Wong was a “natural born Citizen.” Again, the majority in Wong, although the issue was well raised both in the lower court and in the Supreme Court, never held that Wong was a “natural born Citizen.” It only held that he was a “citizen.” Hence, the dissent’s comments on that point prove nothing.
Another important point needs to be made about Minor. In United States v. Rhodes, 27 F. Cas. 785 (No. 16,151) (C.C. Ky. 1866) (Justice Swayne on circuit), Circuit Justice Noah H. Swayne, sitting in the Circuit Court, said:
“All persons born in the allegiance of the King are natural-born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England. . . . We find no warrant for the opinion [p663] that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”
Justice Swayne was appointed to the U.S. Supreme Court on January 24, 1862. Riding the Circuit, he wrote the decision in Rhodes in 1866. Then in 1875, he was part of the unanimous decision in Minor. So we can see from Minor that he had a change of heart as to how U.S. citizenship was defined in the United States. No longer did he look to the English common law for its basis as he had done in Rhodes. Now he looked to natural law and the law of nations as codified by Vattel in Section 212 of his The Law of Nations.
Mr. Apuzzo,
If I understand your argument when Justice Waite writes,
“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” Minor v. Happersett, the common-law he is talking about is the American Common Law not the English Common Law.
But when I read Justice Grays’ opinion in Wong Kim Ark, he begins by saying, “The Constitution of the United States, as originally adopted, uses the words "citizen of the United States," and "natural-born citizen of the United States."
He goes on to explain that the Constitution does not define these terms and the Constitution “must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.” He then cites directly from the Minor opinion “”The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that" and he says this about Justice Waite, “And he[Justice Waite] proceeded to resort to the common law as an aid in the construction of this provision.”
But in the very next paragraph, he starts by citing Smith v. Alabama, where Justice Mathews wrote, “The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” And Justice Gray then goes on for several paragraphs discussing the principles of English Common Law.
It appears that Justice Gray believes that in his Minor opinion, Justice Waite, was talking about the English Common Law not the American Common law.
Mr. Apuzzo,
"The dissent in Wong Kim Ark in referring to eligibility to be President was only addressing the lower court’s position that Wong was a “natural born Citizen.”"
Except Judge Morrow never said that Wong Kim Ark was "natural born". In fact, I don't believe he even uses that term anywhere in his opinion.
Re-posting due to omissions in my prior posting.
@ 4zoltan.
Why do you suppose the Minor court recognized and acknowledged doubts as to whether a native-born child, born to alien parents, was even a citizen, given it were true that the Minor court was referring to the English "common law" in the paragraph of text these doubts were mentioned, and also given that English common law mainatined that native-birth sufficed to make a "natural born subject" and given that "citizen" and "subject" were considered to be analogous????
Excerpt;
13. The plenary power of the Congress over the subject of naturalization is found in the enumeration’s of Article I Section VIII;
14. “...To establish an uniform Rule of naturalization, and uniform laws on the subject of bankruptcies throughout the United States;…”
15. Before attempting to understand the subsequent Acts made under this authority it is prudent to understand what the authority requires. Words have meanings and in interpreting statutory language the rule is to give words their common meaning in the first instance when such meaning does not create a conflict in the application of the provision.
If here, we ascribe the meaning of “guiding principles” to the use of the word Rule and “regulations respecting established principles” to the word Law a certain consistency is made apparent respecting the status of circumstance in which the two subjects existed. Bankruptcy being an element of commerce, national and international, that was in full bloom and uninterrupted in the scale of events of the time; whereas “naturalization” was a subject which could only commence at the point when a new sovereign nation comes into being among the nations of the world.
16. Applying that understanding to the Act of 1790; “an Act to establish an uniform Rule of naturalization” the guiding principles must be considered in order to interpret the needs of the laws within its provisions.
17. “…Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any Alien being a free white person, who shall have resided within the limits and under the jurisdiction of the United States for the term of two years, may be admitted to become a citizen thereof on application…” 1 Stat. 103-104.
18. In order to determine what Rule is being “established” in performance of the authority it is necessary to determine who is being regarded as “aliens” residing within the limits as distinguished from the then current “citizens” residing within the limits that were then enjoying the “rights, immunities and privileges” derived from the Constitution.
19. The Constitution did not say in words who were its Citizens at its Adoption except by the inference and instructions of the “full faith and credit Clause” that extended the acceptance that a Citizen of any of the several States retained that right of Citizenship generally among the several States and each such Citizen shared in the “rights, immunities and privileges” under the Constitution. Those who were then the Citizens of the several States were then also the Founding Generation of U.S. Citizens, and no others. (see Scott v Sandford)
20. Therefore, all others, regardless of being a vagrant or vagabond, of what race, creed, ethnicity, national origin, gender, age or condition of servitude, were then “Alien”, insofar as the Act was concerned; ergo, the “Rule” being established is that a person is either a “Citizen”, and not being in need of naturalization; or; a person is an “Alien”, man, woman or child in need of naturalization to be “considered as” a Citizen, regardless of where any given person might be born.
21. The regulations respecting established principles, the Laws, expressed in the provisions of the Act describes the terms of residency requirement, the processes of administration documentation and administering an Oath by the Courts;
22. “…thereupon such person shall be considered as a Citizen of the United States. And the children of such person 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.”
23. Two points must be noted here, that native born, also known as the doctrine of Jus Soli, was given no consideration in any words, or words that would require it, in this Act; nor were women, wives and mothers, in respect to the customary understanding that a woman’s condition was that of her father and or husband; insofar as Citizenship was concerned.
Cont. Excerpt;
24. What is revealed and made self evident, by the words that then require it, is that the doctrine of Jus Sanguinis is codified as an uniform Rule of Citizenship acquisition within the Act, Commencing with the extension of the Citizenship benefit to the children of any newly naturalized person, regardless of where the child was born, native in the U.S. or otherwise, providing they have not attained the age of majority, then 21 years old.
25. That Rule is again enunciated within the following provision of the Act;
26. “…And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: Provided: …”
27. Also here we find the only mention of the term of words natural born Citizen that appears in any enacted legislation of the Congress with the birthright Citizenship doctrine of Jus Sanguinis extending to the children of citizens even when born abroad to be “considered as” natural born Citizens.
28. Here the requisite circumstances of being a natural born Citizen in conformity with the needs of the Constitution and Laws are revealed.
29. With and by the words “considered as natural born Citizens” when born abroad it is required that others being “natural born Citizens” also exists that are subject to conditions and or circumstances other than being born abroad, which would necessarily be those born to Citizen parents within the limits of the United States and being immune from the need of naturalization.
30. A woman’s citizenship condition, as a wife and mother, was that of the husbands insofar as the Constitution and the Acts were concerned.
31. All persons born to married Citizen fathers were born of Two (2) Citizen parents and therefore born as being or, when born abroad, being "considered as" a natural born Citizens under the 1790 Act, by its words and words that require it.
32. Noting here that the repeal of the 1790 Act by the 1795 Act and the removing of the circumstance of foreign born natural born Citizens did not affect the Constitutional requirement that natural born Citizens continued to exist nor did the repeal affect the circumstances by which they were to come into existence.
33. So when Justice Waite later opined in Minor v Happersett;
“…Thus new citizens may be born or they may be created by naturalization…”
the proviso required, under the provisions of the 1790 Act and the 1795 to follow, that to be a “new Citizen” by birth requires being born of a married Citizen father and therefore being born a natural born Citizen: [condicio sine qua non]
[snip]
49. The statutory construction and effects of the words and provisions of these Acts, taken together, make it clear that the only permissible definition of circumstances which would allow a person to be born as a natural born Citizen of the United States, in words that say so and or words that require it, is to be born to Citizen parents, (a married Citizen father), within the limits of the several States being under the jurisdiction of the United States Constitution, which is consistent with the combining the two doctrinal Rules of Citizenship, Jus Sanguinis and Jus Soli.
Lacking any Amendment, or legislation, that has abridged, enlarged, modified or otherwise reconciled the requisite circumstances for the purpose of allowing those persons otherwise excluded from being or considered as a natural born Citizen by the Rules established within the surviving Act, the Rules being so established, must be construed as Statutes at Large, providing the current legal and enforceable definition of natural born Citizens.
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4zoltan,
You are so correct. I was thinking of the case of Kwock Jan Fat v. White, 253 U.S. 454 (1920). There, the Commissioner of Immigration had declared Kwock, born in the United States to domiciled resident alien parents, a “natural born Citizen.” The U.S. Supreme Court only declared him a “citizen of the United States.” In any event, the dissent’s statement regarding presidential eligibility has no force of law simply because the majority in Wong Kim Ark did not hold Wong to be an Article II “natural born Citizen.”
I am happy to see that you have recognized that the lower court in Wong Kim Ark did not even use the term “natural born” or “natural born Citizen” in its entire decision. You will probably agree with me that the simple reason for that is that the precise question before the court was whether a child born in the United States to domiciled alien parents was a “citizen of the United States” under the Fourteenth Amendment. In other words, the case was not about whether Wong was “natural born” or an Article II “natural born Citizen.” The court did not even mention once Article II, “natural born,” or “natural born Citizen.”
On review of the federal district court decision which held that Wong was a “citizen of the United States” under the Fourteenth Amendment, the U.S. Supreme Court upon appeal by the U.S. Government was faced with the same exact “single question” and stipulated facts and affirmed the lower court, holding that, given that he was born in the United States to domiciled resident alien parents, at the time of his birth Wong became a “citizen of the United States” under the Fourteenth Amendment. While the Court reviewed the colonial English common law that defined a “natural born subject” in order to determine whether Wong was born “subject to the jurisdiction” of the United States and to determine whether he should be found to be a “citizen of the United States” under the Fourteenth Amendment, the Court did not recognize nor did it decide any question whether Wong was an Article II “natural born Citizen.”
The Court recognized that under our Constitution and laws, “citizens” (not to be conflated and confounded with “natural born Citizens”) are either born or naturalized after birth. The Court knew that Wong was not made a “citizen” after his birth by any Congressional Act or treaty. Hence, it had to decide whether he could be held to be a “citizen” under the Fourteenth Amendment from the moment of birth. The Court did not deem it relevant to discuss or decide what the political nature and extent of Wong’s birthright citizenship was other than to hold that he was a “citizen of the United States” from “the time of his birth.” Hence, the holding of Wong Kim Ark must be limited to what is a Fourteenth Amendment “citizen of the United States” from the moment of birth and not what is an Article II “natural born Citizen” under the laws to which the Founders and Framers looked when they inserted that clause into Article II, Section 1, Clause 5 in 1787.
Continued . . .
II of II
As you know, I have argued that the law to which the Founders and Framers looked in 1787 to define a “natural born Citizen” was natural law and the law of nations which on matters of citizenship was incorporated into national American “common-law” that became part of Article III “Laws of the United States” and under the supremacy clause of Article VI became binding on the nation. The Founders and Framers did not view the law of nations as “international law” or the law of some foreign nation. Rather, they accepted and adopted it as American law which was binding on the federal and state governments and the people. See Minor v. Happersett (1875) (defined a “natural-born citizen” under “common-law” which was a paraphrase of Vattel at Section 212 of his The Law of Nations). Again, Minor told us that that national American common law definition of a “natural-born citizen” was a child born in a country to parents who were citizens of that country.
On the other hand, in its discussion about U.S. citizenship, Wong Kim Ark did cite and quote Minor and its definition of an Article II “natural-born citizen.” So Minor in 1875 confirmed that the Founding generation definition of a “natural-born citizen” was a child born in a country to parents who are citizens of that country. Wong Kim Ark in 1898 again confirmed that same definition. This definition of a “natural-born citizen” is consistent not only with the weight of the historical record, but also with previous U.S. Supreme Court and lower court cases. This definition has never been changed by any U.S. Supreme Court decision or constitutional amendment. Hence, it is the current definition and binding on our nation.
Mr. Apuzzo,
"As you know, I have argued that the law to which the Founders and Framers looked in 1787 to define a “natural born Citizen” was natural law and the law of nations which on matters of citizenship was incorporated into national American “common-law”"
That is almost the exact same argument made by the Solicitor General and by Mr. Collin, the amicus curiae, in Wong Kim Ark. It is the argument rejected by the Court' majority.
From the Appelle brief:
"It is, however, urged most earnestly by the Solicitor General and by Mr. Collin, the amicus curiae, that this long-standing interpretation of who was a citizen of the United States is wrong, and has been wrong from the very beginning, in that the Courts have resorted to common law to aid them in their decisions, while the question was really one of the law of nations. Further than that, the Government seriously presses the point that there is no common law in the United States, and that, therefore, in ascertaining the meaning of words used in the Constitution, but not there defined, it is not permissible to inquire how they were commonly understood by lawyers at the time of the adoption of the Constitution, or in other words what their meaning was at common law."
Also the Appellants are the only ones who bring up that Wong Kim Ark should not be held to be a "natural born Citizen".
Also it is clear from both sides arguments, when they talk about the common law, they mean the English Common Law.
Mario -- Relative to the last paragraph of this excellent piece, in which you mention other non-eligible candidates, and with your usual phraseology 'putative President,' how would Bret Baer respond to any evidence that the name 'Barack Hussein Obama II' may actually be a 'pseudonym?' Fox News has no evidence to offer that the name of our current President is not a 'pseudonym,' and there are plenty of indications that it is a 'pseudonym.'
One little discussed fact about WKA is the fact that WKA was compared, by Justice Gray, to the children of negro slaves, born before the 14A, and made citizens by the 14A. Their parents were also "resident aliens", as they were not considered US Citizens, and also not allowed to naturalize, like WKA's parents. Gray reasoned that since WKA's parents were not allowed to naturalize, then WKA should be given the same benefit of the 14A. Of course negro slaves, made new citizens by the 14A were not nbC, but their children, if born in America,were.
And here is what McPherson v. Blacker (SCOTUS 1892), a case about the choosing of electors, and election of the President said about the 14A:
"In the Slaughterhouse Cases, 16 Wall. 36, this court held that the first clause of the fourteenth amendment was primarily intended to confer citizenship on the negro race; and, secondly, to give definitions of citizenship of the United States, and citizenship of the states; and it recognized the distinction between citizenship of a state and citizenship of the United States by those definitions; that the privileges and immunities of citizens of the states embrace generally those fundamental civil rights for the security and establishment of which organ- [146 U.S. 1, 38] ized society was instituted, and which remain, with certain exceptions mentioned in the federal constitution, under the care of the state governments; while the privileges and immunities of citizens of the United States are those which arise out of the nature and essential character of the national government, the provisions of its constitution, or its laws and treaties made in pursuance thereof; and that it is the latter which are placed under the protection of congress by the second clause of the fourteenth amendment.
We decided in Minor v. Happersett, 21 Wall. 162, that the right of suffrage was not necessarily one of the privileges or immunities of citizenship before the adoption of the fourteenth amendment, and that that amendment does not add to these privileges and immunities, but simply furnishes an additional guaranty for the protection of such as the citizen already has; that, at the time of the adoption of that amendment, suffrage was not coextensive with the citizenship of the state, nor was it at the time of the adoption of the constitution; and that neither the constitution nor the fourteenth amendment made all citizens voters."
So the case cites Minor, and says the 14th Amendment was purely for the naturalization of negros. It was a case about the election of the President, and discussed the "ineligibility of certain persons" in A2, but never says anything about a "born citizen of the 14A being the same as a nbC.
Then this:
"The object of the fourteenth amendment in respect of citizenship was to preserve equality of rights and to prevent discrimination as between citizens, but not to radically change the whole theory of the relations of the state and federal governments to each other, and of both governments to the people. In re Kemmler, 136 U.S. 436 , 10 Sup. Ct. Rep. 930. "
That court included Justice Gray, in concurrance. The decision was unanimous.
@ 4zoltan who said .....
"Also it is clear from both sides arguments, when they talk about the common law, they mean the English Common Law."
Then, why do you suppose the Minor court recognized and acknowledged doubts as to whether a native-born child, born to alien parents, was even a citizen, given it were true that the Minor court was referring to the English "common law" in the paragraph of text these doubts were mentioned, and also given that English common law maintained that native-birth sufficed to make a "natural born subject" and given also that "citizen" and "subject" were considered to be analogous????
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4zoltan,
The Solicitor General and George Collins committed some grave errors in U.S. v. Wong Kim Ark (1898) when they argued Wong Kim Ark. Here are some that come to mind without going completely through their arguments. Hence, there could be more:
1. They should have argued that U.S. citizenship is defined by American "common law," not English "common law." How could they argue that the "common law" did not define a "natural born Citizen" when Minor v. Happersett had said so just in 1875? They did not understand what Minor meant by "common law" and so that is probably why they did not argue the citizenship rule confirmed in Minor under what Minor called the “common-law.”
2. They should have explained how that American "common law" on matters of citizenship got its content from the law of nations. It is clear that the "common-law" definition of a "natural-born citizen" that Minor gave came directly from Vattel in Section 212 of The Law of Nations. The Government never even brought that out to the Court.
3. They allowed the plaintiff to characterize the law of nations as "international law" and the law of foreign nations. Then without challenge they allowed the plaintiff to appeal to jealousy and nationalism and to argue that we do not let foreign law or countries decide who our citizens are. The Government should have shown how the Founders and Framers did not consider the law of nations as “international law” or the law of some foreign country, but rather that they considered it part of United States national law and incorporated it into the "Laws of the United States" in Article III which under the supremacy clause of Article VI became binding on the nation.
4. While the Government argued how the Founders and Framers went from monarchial and feudal rule to republican government which meant we no longer followed the English common law rule on citizenship, they did not provide the Court with historical information (Greek and Roman citizenship, Cicero, Locke, Rousseau, Pufendorf, Burlamaqui, Vattel, etc.) which showed the intellectual mindset of the Founders and Framers when they wrote the Constitution and the “natural born Citizen” clause and what they would of thought about that new citizenship given the creation of the new republic.
5. The Government also did not provide for the Court any writings from any Founders that commented on what citizenship had become in the new republic after the Revolution. Writing from Thomas Jefferson, Alexander Hamilton, James Madison, David Ramsay, St. George Tucker, James Wilson, to name some, would have been invaluable.
6. Another huge mistake made by the Government was in not arguing and showing that the English common law was abrogated by the Naturalization Acts of 1790, 1795, 1802, and 1855, and showing how those acts were perfectly consistent with the law of nations and showed that a “natural born Citizen” could only be defined as a child born in the United States to U.S. citizen parents. As Minor had explained, there was no doubt that this was the only birthright citizenship that existed in the United States and that “there have been doubts” whether a child born in the United States to alien parents was even a “citizen.” This statement was perfectly consistent with what these naturalization acts provided. These statutes clearly showed that Congress abrogated the jus soli English common law rule as applicable in defining national citizenship. Hence, there was no more any question whether we still followed the English common law on matters of national citizenship.
Continued . . .
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With the passage of the Fourteenth Amendment, the question then became whether the amendment and the “subject to the jurisdiction thereof” clause were intended to change that birthright citizenship by allowing the children born in the U.S. to alien parents to also enjoy birthright citizenship along with the “natural born Citizens.” If they were, then the Government should have explained that the change was only to affect who were going to be “citizens of the United States,” but not “natural born Citizens.” You will also note that “subject to the jurisdiction” was not a concept of the English common law. Also, the English common law did not require the parents of the child born in the dominion of the King to be domiciled residents of those dominions. But the majority in Wong included the requirements of “jurisdiction,” domicile, and residency in its holding. This is not the English common law.
7. Another mistake that the Government made was in arguing that to hold that Wong was a “natural born Citizen” would be error. They should have distinguished a “citizen” under the Fourteenth Amendment from a “natural born Citizen” under Article II and said that there was no way for Wong to be a “natural born Citizen” since he was born not born to U.S. citizen parents and additionally that to hold that Wong was a “citizen” under the Fourteenth Amendment would be error. Given that all “natural born Citizens” are “citizens,” Minor had shown how Virginia Minor was a “citizen” by demonstrating that she was a “natural-born Citizen.” But not all “citizens” are “natural born Citizens.” Hence, there was no need for the Government to show that Wong was not a “citizen” by showing that he was not a ‘natural-born Citizen.” Maybe the Government did not want to concede that Wong was even a “citizen” under the Fourteenth Amendment so they brought the “natural born Citizen” clause into the discussion. Hence, they argued that he was not a “natural born Citizen.” But the plaintiff did not argue that he was a “natural born Citizen.” He only said he was a “citizen” under the Fourteenth Amendment. Hence, there was no need to bring the “natural born Citizen” clause into the matter other than for clarification of what the issue before the Court was.
What is interesting in this connection is that the Government said that one could not be a “natural born Citizen” if one’s parents were not U.S. citizens, for birth to such parents would result in the child being “born subject to a foreign power.” So, at least we know what the U.S. Government believed disqualified those born in the United States from being a “natural born Citizen,” i.e., dual and conflicting allegiances at birth inherited from alien parents. In the end, the majority in Wong did not allow dual and conflicting allegiance at birth to prevent Wong from becoming a “citizen of the United States.” The majority recognized the problem of dual and conflicting allegiance but basically said we can live with it. After all, the Court did not declare Wong to be a “natural born Citizen” which would have made him and those in his same situation eligible to be President. Had Wong sought to be a “natural born Citizen,” dual and conflicting allegiances surely would have been a game changer. In the end, the majority only held that Wong was a “citizen of the United States” under the Fourteenth Amendment and not a “natural born Citizen” under Article II. Hence, not even dissenting Chief Justice Fuller’s comment regarding presidential eligibility has any authoritative or precedential value.
Hi Mario,
Why can't you just pick up the phone and call Bret Baier or go to his office and pay him a visit? Are we supposed to believe that people on TV just say things but they really don't mean them? Why not give him a call and let him know that you accept his invitation?
We want you to be the one to educate Mr. Baier.
I assume your appeal to the ballot challenge is 30 days. Not sure why thats such a big secret...
thank you for all your hard work.
Mario continues to make the preposterous assertion that someone who is a "born citizen" is not a "natural-born citizen". See, it even sounds absurd when I say it that way doesn't it?
What he needs to find is at least one case where a court ruled on that very issue. He needs to find a case where that was the dispute: is someone who is clearly born a citizen not a natural born citizen.
I have offered to help him find such cases but he has not taken up the offer. I wonder why?
Super Obot Radio Boss, Reality Check, like English Common Law Maestro, ballantine, and Computer AND Constitution Extraordinaire, John Woodman, has a real problem reading the English language. They cannot read the clear and plain text of Jefferson's 1779 citizenship law which shows that only an infant "wheresoever" born to a father who was a citizen could be a citizen of Virginia. The last time I consulted a dictionary, "wheresoever" included Virginia.
They cannot read the clear and plain text of the Naturalization Acts of 1790, 1795, 1802, 1804, and 1855 which provided that the children of persons who naturalized, dwelling in the United States, shall themselves become naturalized citizens if the parents naturalized prior to their years of majority. Relative to these acts, they cannot read the clear and plain text of the John McClure case which tells us that even though he was born in South Carolina in April 21, 1785, he did not become a naturalized “citizen of the United States” until his British father naturalized a few months after his birth. The text of the statutes and the McClure case show that these statutes applied to both children born in the United States and out of it and that we no longer followed the English common law jus soli rule which allowed anyone born in the colonies, regardless of the citizenship of the parents, to become natural born subjects. Hence, if any child was born to an alien father (which meant also alien mother since wives adopted the citizenship of their husbands), no matter where born, he could only become a "citizen of the United States" when his father and mother naturalized.
And now we can see that Reality Check also cannot read the clear and plain text of Article II, Section 1, Clause 5 which says "natural born Citizen" and not "born Citizen." The only thing that sounds absurd is Reality Check telling us that “born Citizen” is the equivalent to “natural born Citizen.” In this connection, he did not receive Chief Justice John Marshall's memo from Marbury v. Madison which instructs that every word in the Constitution is important. I would hate to have Reality Check take my car's motor apart and put it back together again. Can you image all the pieces that he would have left over and which he would just throw away because they were not important.
One last thing. It is Reality Check that needs to find some cases. We have found plenty of U.S. Supreme Court cases that show that Obama is not a "natural born Citizen." It looks like Reality Check also does not understand the current state of the U.S. Supreme Court cases which show that Obama is not a "natural born Citizen." Maybe that is why he keeps lighting candles that the Supreme Court does not take an Obama eligibility case.
I would love to see you file more cases Mario. Eventually, you will find a judge who will not tolerate your lies and sanction you again for wasting the court's time with your nonsense. This time $$$ will be attached, however
Have no doubt, if you venture into the courts with your nonsense real attorneys are ready to squish you like a bug as they are doing to Orly Taitz down in MS right now.
I am sure you will be satisfied to bloviate and lie right here on your blog though and maybe file another moronic amicus brief like the one in Virginia in that loser of a case. You might be able to avoid risking sanctions that way.
Puzo1;
I'm wondering if it is not advisable to dispense with the citing of Judicial Opinions that have NOT looked at the Statutes promulgated under the authorities of the Constitution, Naturalization Acts of 1790, 1795, 1802, 1804, and 1855, given that they all look to State Courts and foreign Law...?
The "common law" is a structure built off opinions of judicial determinations which address conflicts emanating from the application of Statutory laws, thus building a body of precedents.
It is a bit disturbing that so many 'Judicial Opinions" on the subject of 'citizenship' seem to disregard the mandate to the Congress to 'establish an uniform Rule of naturalization, (citizenship), throughout the U.S.'.
A New Nation was established with the adoption of the Constitution, ergo, it was NECESSARY to establish the New Nations Rule of Citizenship. It is not possible to separate Citizenship from the process of Naturalization in the conduct of the affairs of a Nation. They are the two sides of the same coin and equal in value for most transaction under our Republics Rule of Law.
Yet, in the manner consistent with nature it is the flip of the coin that determines whether one is 'born a citizen of citizen parents' or whether one requires some dispensation to be "considered as a Citizen".
I believe we've come full circle in pursuing the "Truth" as to the nature of an American natural born Citizen and that it's time to let the Statutes at Large be supported by those Opinions that adhere to the Rules established or allow them to be crushed by the full weight of the Laws that they failed to uphold.
"It is not the province of the court to decide upon the justice or injustice, the policy or impolicy, of these laws. The decision of that question belonged to the political or lawmaking power, to those who formed the sovereignty and framed the Constitution. The duty of the court is to interpret the instrument they have framed with the best lights we can obtain on the subject, and to administer it as we find it, according to its true intent and meaning when it was adopted."
So said Justice Taney in the much maligned Scott v Sandford, yet it took a Civil War a Civil Rights Act and THREE (3) Amendments to overturn the correctness of the Opinion.
So to correctly apply the "effects' of the Acts to establish an uniform Rule of naturalization, (citizenship), it is necessary to begin at the beginnib=ng;
"It is true, every person, and every class and description of persons who were, at the time of the adoption of the Constitution, recognised as citizens in the several States became also citizens of this new political body, but none other; it was formed by them, and for them and their posterity, but for no one else. And the personal rights and privileges guarantied to citizens of this new sovereignty were intended to embrace those only who were then members of the several State communities, or who should afterwards by birthright or otherwise become members according to the provisions of the Constitution and the principles on which it was founded. It was the union of those who were at that time members of distinct and separate political communities into one political family, whose power, for certain specified purposes, was to extend over the whole territory of the United States. And it gave to each citizen rights and privileges outside of his State [p407] which he did not before possess, and placed him in every other State upon a perfect equality with its own citizens as to rights of person and rights of property; it made him a citizen of the United States." Scott v [pg 406]
@ 4zoltan who said .....
"Also it is clear from both sides arguments, when they talk about the common law, they mean the English Common Law."
Then, explain how come the Minor court recognized and acknowledged doubts as to whether a native-born child, born to alien parents, was even a citizen, given it were true that the Minor court was referring to the English "common law" in the paragraph of text these doubts were mentioned, and also given that English common law maintained that native-birth sufficed to make a "natural born subject" and given also that "citizen" and "subject" were considered to be analogous????
What about Reality Check and "honest" John Woodman might they step-up and explain.
Reality Check,
I see that the Super Obot Radio Boss is in a rage, threatening his proverbial sanctions. I can understand why. You try to peddle to the public that "born Citizen" is the same as "natural born Citizen" and no rational thinking human being is willing to "check reality" at the door like Reality Check has done.
You want to take that idiom and say that it means your own manufactured definition of the clause. You want the meaning of that idiom to equate to the manner in which Congress and the Fourteenth Amendment allow persons to acquire the status of a “citizen of the United States” as of the moment of birth. But no U.S. Supreme Court case or Justice has adopted that manufactured definition or even said that such a meaning prevailed at the time of the Founding. That someone acquires his or her citizenship from the moment of birth simply does not equate to that person being a "natural born Citizen." Even Wong Kim Ark and Bellei tell us that persons may be “naturalized” from the moment of birth. We accept that “naturalized” person are not “natural born Citizens.” Furthermore, that Wong Kim Ark included the clause “natural born subject” in the context of its discussion of what is a Fourteenth Amendment “citizen of the United States” does not through some amazing feat of logic convert a “citizen of the United States” into a “natural born Citizen.” As Minor aptly explained, a “natural born Citizen” is neither created by the Constitution nor depended upon it. Hence, the Fourteenth Amendment does not control who shall be “natural born Citizens.” So, your reading of irrelevant debates on the Fourteenth Amendment proves nothing.
But then the Super Obot Radio Boss will have none of this because it does not fit so well with his political agenda and vision of grandeur. Maybe some anger management could help him. Also, may I suggest that you change your name from Reality Check to Historical Check. I truly believe that your new name will lead you to better results.
Per A2C5, "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President"... why do you continue to insist that the NBC rule starts as of our Declaration of Independence?
"[A]t the time of the Adoption of this Constitution" seems to be a rather straightforward legal point in time. Am I missing something per our highest document of United States law?
daddynoz,
The status of a "Citizen of the United States" and "natural Born Citizen" started with the Declaration of Independence, provided one affirmed that status by adhering to the American Revolution. "At the time of the Adoption of the Constitution" only pertains to the deadline by which vesting of the status of a "Citizen of the United States" had to occur for one to be eligible to be President if one was not a "natural born Citizen." If one was not a "Citizen of the United States" by the time of the adoption of the Constitution, then one had to be a "natural born Citizen."
A “Citizen of the United States” was simply any inhabitant of the colonies and states who adhered to the American Revolution. These were the original “citizens.”
The “natural born Citizens” were their children born in the country. The original “citizens” and their “natural born Citizens” already existed prior to the time the Constitution was adopted. The Constitution gives to Congress in matters regarding citizenship only the power to naturalize. The Naturalization Act of 1790 questionably extended the special status of “natural born Citizen” to children born abroad to citizen parents, but did so only retroactively and temporarily given that the 1795 Act deleted “natural born citizen” and replaced it with “citizen of the United States.” Given that the President has to be at least 35 years old, there were no eligible "natural born Citizens" at the time of the adoption of the Constitution. The oldest "natural born Citizen" alive when the Constitution was adopted in 1787 was 11+ years old (9-17-1787 less 7-4-1776).
Since today there is no one alive that was born before the time of the adoption of the Constitution, anyone living today must be a "natural born Citizen." Of course, this higher citizenship status requirement applies to Obama and he does not meet it because he was born to an alien father (not born to citizen parents).
Mr. Apuzzo,
"The Solicitor General and George Collins committed some grave errors in U.S. v. Wong Kim Ark (1898)"
Given your position on eligiblity that seems like quite an understatement.
The government starts it brief with
"The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen"
Remember that no where in Judge Morrow's ruling does he use the term "natural born".
And the Appellant later writes,
"For the most persuasive reasons we have refused citizenship to Chinese subjects; and yet, as to their offspring, who are just as obnoxious, and to whom the same reasons for exclusion apply with equal force, we are told that we must accept them as fellow-citizens, and that, too, because of the mere accident of birth. There certainly should be some honor and dignity in American citizenship that would be sacred from the foul and corrupting taint of a debasing alienage. Are Chinese children born in this country to share with the descendants of the patriots of the American Revolution the exalted qualification of being eligible to the Presidency in recognition of the importance and dignity of citizenship by birth?"
It appears the Mr. Collins and the Solicitor General believe that if WKA is declared a citizen at birth then he is eligible for the Presidency and is a "natural born Citizen".
4zoltan,
You know as well as I do that arguments of counsel provide no precedential value to any particular point of a case. Rather, what we are to be guided by is the holding of a case. Depending on the circumstances and the lack of any other authority on the point, a court can also use persuasive dicta to guide it to its decision.
Both the lower and U.S. Supreme Court in Wong held that Wong was a "citizen of the United States." The lower court never even mentioned the term "natural born," let alone "natural born Citizen." In interpreting and applying the Fourteenth Amendment, the Supreme Court did discuss at length what a “natural born subject” was under colonial English common law. But it also said that the child of aliens born in the country is as much a citizen as the natural born child of citizens by the simple power of being born in the country.
Regarding what meaning we are to give to the Court’s holding, it does not matter what the government wrote in its brief to the Supreme Court. We know that the district court did not even mention the word “natural born,” let alone “natural born citizen” in interpreting the Fourteenth Amendment. There was absolutely no discussion of Article II. Hence, the government and Mr. Collins misread the holding of the lower court. Such arguments of counsel, even more so when they are based on an erroneous premise, are not precedential and have no binding legal effect. Such arguments do not even rise to the level of dicta, for they are not made by the court. Such arguments surely cannot make any given case better or worse. Whatever the government said about Wong potentially becoming a “natural born Citizen” is not controlling and does not drive in the least the meaning of the Wong Kim Ark holding.
In short, that Wong Kim Ark included the clause “natural born subject” in the context of its discussion of what is a Fourteenth Amendment “citizen of the United States” and that the government and Mr. Collins believed that the lower court held that Wong was a “natural born Citizen” do not through some rule of law or amazing feat of logic convert the Court’s holding that Wong was a “citizen of the United States” into one that he was a “natural born Citizen.”
Mr. Apuzzo,
"You know as well as I do that arguments of counsel provide no precedential value"
I'm not claiming that they do. Rather these statements are a guide to what the government's understanding of the issues was.
Just as you said in an earlier response,
"What is interesting in this connection is that the Government said that one could not be a “natural born Citizen” if one’s parents were not U.S. citizens, for birth to such parents would result in the child being “born subject to a foreign power.” So, at least we know what the U.S. Government believed disqualified those born in the United States from being a “natural born Citizen,”"
We now know that the government believed that if Wong was declared a citizen at birth then he was also natural born.
4zoltan,
You said: “We now know that the government believed that if Wong was declared a citizen at birth then he was also natural born.”
You are confounding and conflating what the government believed with what the government believed the lower court believed.
I said: “What is interesting in this connection is that the Government [in Wong] said that one could not be a “natural born Citizen” if one’s parents were not U.S. citizens, for birth to such parents would result in the child being ‘born subject to a foreign power.’” This is what the government believed.
You said: "The question presented by this appeal may be thus stated: Is a person born within the United States of alien parents domiciled therein a citizen thereof by the fact of his birth? The appellant maintains the negative, and in that behalf assigns as error the ruling of the district court that the respondent is a natural-born citizen." This is what the government believed the lower court believed.
Concerning “what the government’s understanding of the issue was,” under that very understanding even though Wong was a “citizen of the United States,” in the eyes of the government he could not be a “natural born Citizen” because he was “born subject to a foreign power.” So, the fact that the government believed that the lower court ruled Wong a “natural born Citizen” does not change what the government believed to be the correct definition of a “natural born Citizen,” for the government still believed that a “natural born Citizen” exclude anyone “born subject to a foreign power” regardless of what it believe the lower court ruled.
You claim that anyone who is a “citizen at birth” is necessarily a “natural born Citizen.” On matter of citizenship, Congress has the power to only naturalize. Under those powers, Congress can create “citizens at birth.” Are you then saying that Congress can create “natural born Citizens” under its naturalization powers?
Mr. Apuzzo,
"You are confounding and conflating what the government believed with what the government believed the lower court believed."
There is nothing in the lower court's ruling about Wong or any child of aliens being a "natural born citizen". In fact, even the briefs by Wong's counsel do not use the term. There is no evidence that the term even came up in any of the arguments. And as you pointed out "the case was not about whether Wong was “natural born” or an Article II “natural born Citizen.” The court did not even mention once Article II, “natural born,” or “natural born Citizen.”
So why would the government believe that the court believed something the court never expressed?
The only party mentioning "natural born", before Justice Gray's opinion, is the government. In fact, the appellant brief specifically asks the Supreme Court not to hold Wong Kim Ark as a natural born citizen, "To hold that Wong Kim Ark is a natural-born citizen within the ruling now quoted [Elk v. Wilkins]., is to ignore the fact that at his birth he became a subject of China by reason of the allegiance of his parents to the Chinese Emperor.”
As to whether Congress can legislate a "natural born Citizen", that may be the only question concerning the term that the Supreme Court will be willing to take up.
I of II
4zoltan,
You logic is faulty and I will show you how.
We can accept that by the law of nature unicorns do not exist.
John believes that unicorns do not exist.
Jane believes that unicorns do exist.
Regardless of what Jane believes, by the law of nature unicorns do not exist.
As to why Jane believes that unicorns do exist, whatever the reason may be, it will not cause unicorns to exist simply because in reality they do not exist.
Continued . . .
II of II
Here is a question for you. Article II, Section 1, Clause 5 says that those born after the adoption of the Constitutoin need to be “natural born Citizens” in order to be eligible to be President and that today a “citizen of the United States” is no longer so qualified.
Under the naturalization powers given to it by Article I, Section 2, Clause 4, Congress can only define what is a “citizen of the United States.” While this power includes the capacity to confirm what a “natural born Citizen” is, this power does not include the capacity to change its constitutional meaning by making it more or less inclusive without constitutional amendment.
In 1866, Congress established that a child born in the United States and “not subject to any foreign power” was a “citizen of the United States.” What Congress did with this law is actually confirm the definition of a “natural born Citizen.” As the government in Wong correctly argued, a child born in the United States and “not subject to any foreign power” is a “natural born Citizen” and as Minor explains also a “citizen.” Hence, of course, such a person would also be a “citizen of the United States.” “[N]ot subject to any foreign power” necessarily requires birth in the country and citizen parents.
The Fourteenth Amendment defines a “citizen of the United States.” It says that if one is born in the United States and subject to its jurisdiction, one is a “citizen of the United States.” It also says that if one is naturalized in the United States and subject to its jurisdiction, one is a “citizen of the United States.” Hence, under the definitions provided by the amendment, both those who become “citizens” from the moment of birth and those who become “citizens” after birth are both just “citizens of the United States.” Also, the amendment does not use the “not subject to any foreign power” language,” but rather uses “subject to the jurisdiction” of the United States.” Also, of critical importance, the amendment did not say it was amending the meaning of the Article II “natural born Citizen” clause. As Wong explained, “subject to the jurisdiction” only means subject to the laws of the United States. Wong did not say the clause meant “not subject to any foreign power.” Note that the change in language causes a much greater inclusion of people into membership in the nation, for to be subject to its laws is immensely much easier to satisfy (simple birth in the territory with few exceptions will do it) than “not subject to any foreign power” (which requires both birth in the country and birth to citizen parents). Hence, by definition the “citizen of the United States” found in the Fourteenth Amendment and passed upon by Wong does not and cannot represent a “natural born Citizen” which requires that the child be born “not subject to any foreign power.”
So, by the force of law and logic, the Fourteenth Amendment only defines a “citizen of the United States” who is not a “natural born Citizen,” for the amendment does not require that the child be born “not subject to any foreign power.”
If follows that Wong Kim Ark only interpreted and applied the Fourteenth Amendment which necessarily means it only defined a “citizen of the United States” and not a “natural born Citizen.”
How do you then get to your position that Wong, a case that was about defining a “citizen of the United States” under the Fourteenth Amendment with its relaxed “subject to the jurisdiction” clause and not a case that was about defining a “citizen of the United States” under the Civil Rights Act with its more rigorous “not subject to any foreing power” clause, is really a case about defining a “natural born Citizen?”
daddynoz said...
Per A2C5, "No person except a natural born Citizen, or a Citizen of the United States, at the time of the Adoption of this Constitution, shall be eligible to the Office of President"... why do you continue to insist that the NBC rule starts as of our Declaration of Independence?
"[A]t the time of the Adoption of this Constitution" seems to be a rather straightforward legal point in time. Am I missing something per our highest document of United States law?
May 6, 2012 1:20 PM
I think Puzo1 has addressed your question but I would like to make a couple of points relating to this...
Just as Citizenship and naturalization can not be viewed as separate and unrelated in the larger topic of a National Society, acquisition of Citizenship can not be viewed as occurring in a vacuum nor is it 'static' in nature, but is a 'dynamic State' subject to a number of circumstances, including the 'fundamental right' to expatriate by affirmative actions.
The period between the Declaration and the Adoption involved a 'sorting out' of who were and who were NOT Citizens of the several States, to the extent that at the end of the war many Loyalists and Tories were "proscribed" from being eligible for Citizenship. (See both 1790-95 Acts)
The point is, U.S. Citizenship was established upon the Adoption but individuals 'citizenship' had already begun under the Articles of Confederation among the several States.
"The patriots considered all loyalists traitors. Most of the new states passed laws taking away the loyalists' property. Patriot mobs attacked prominent Tories. Those found helping the British were imprisoned."
"There were others, however, who actively opposed the war because of political loyalty to the Crown, a lucrative commercial association with London's merchants, or because of their pacifist principles.
More than 1,400 of these Pennsylvania loyalists joined the Redcoat army to fight for a restoration of British rule. Several thousand more, belonging to the Society of Friends and German pietist churches, refused to support the war in any way - fighting, taking an oath of allegiance to the new government, or even supplying either army with food or other material provisions - because they saw it as contrary to their historic peace testimony."
According to Andy's reckoning, the native-born loyalists and their native-born children were all "natural born Citizen"s by the reckoning of the Founders and Framers.
Is that right Andy?
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