Monday, December 31, 2012

Congress Should Not Confirm Barack Obama As President, For He Is Not an Article II "Natural Born Citizen"

Congress Should Not Confirm Barack Obama As President, For He Is Not an 
                                      Article II “Natural Born Citizen”


                                            By Mario Apuzzo, Esq.
                                               December 30, 2012


 A joint session of Congress meets to count the Electoral College vote from the 2008 presidential election the House Chamber in the U.S. Captiol
       The joint session of Congress meets to
count the 2008 Electoral College vote 




 



The issue of Obama’s eligibility to be President has always been whether he is an Article II “natural born Citizen.” And that issue has always been about answering two questions: (1) whether he was born in the United States and (2) whether at the time of his birth in the United States he was born to United States citizen parents, for a “natural born Citizen” is defined as a child born in a country to parents who were citizens of that country. See Mario Apuzzo, The Two Constitutional Obstacles Obama Has to Overcome to be President, at http://puzo1.blogspot.com/2008/12/two-constitutional-obstacles-obama-has.html (published on December 20, 2008).

Obama eligibility supporters like to focus on the first question, place of birth, for it lends to so much controversy, speculation, and confusion. The place of birth question raises concerns about whether Obama’s birth certificate, social security number, and draft registration card are false. Of course, for any of that to be true would necessitate conspiracy among many individuals employed by various state and federal government agencies. The charges of conspiracy gives Obama's supporters great opportunity to ridicule and mock concerned American citizens who--given that Obama has never released his original birth certificate to any controlling government authority, Obama still refuses to give his consent to release to the public his birth, education, travel, and work records, and some have uncovered unconfirmed information suggesting that Obama was born in Kenya--are still searching for a conclusive answer to the question of whether Obama was born in the United States. These Obama supporters bask in the ease by which they are able to attack those who, without any government or law enforcement assistance, are still investigating Obama’s place of birth with little resources available to them. These Obama eligibility supporters also like to make everyone think that the place of birth issue seals a victory for Obama and them. But such a statement is false.

These Obama eligibility supporters have not been able to adequately cast off either by way of any current well-researched and reasoned court decision or otherwise the other requirement for being a “natural born Citizen,” i.e., that the child must be born to parents who were citizens of the country when the child was born. As we can see below, there is a great amount of historical, U.S. Supreme Court, and Congressional sources that confirms this additional requirement which neither a handful of lower law and administrative courts--which have ruled that they have no jurisdiction or plaintiffs have no standing, but yet have still decided the merits of the question of whether Obama is a “natural born Citizen”--nor these Obama eligibility supporters have been able to adequately address.

What does all this mean for Congress which on January 4, 2013 will be counting the Electoral College votes and deciding whether President Elect Barack Obama is constitutionally qualified to be President? Under Article I, II, and III, the legislative, executive, and judicial branches of government are each given specific and exclusive powers. This is our separation of powers feature of our tripartite form of government. Under this doctrine, powers given to one branch are not to be exercised by any other. Under this scheme and specifically under Article III, the power to interpret the constitution is given solely to the judiciary. The Constitution does not textually commit the resolution of the question of what is a “natural born Citizen” to any specific branch of government other than the judicial branch. The question is no different from the question faced countless times by our nation’s federal and state courts when deciding what the applicable eligibility requirements for any given elected office are. Hence, the constitutional question of the meaning of a “natural born Citizen” is left to the judicial branch to resolve.

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.” Hence, “natural born Citizen” is one of the three exclusive constitutional eligibility requirements to be President found in this article, with the other two being a minimum of 35 years of age and 14 years of U.S. residency. As Powell v. McCormack, 395 U. S. 486, 519 (1969) explained, to determine the nature and extent of constitutionally specified eligibility qualifications is within the court’s power to do. Id. at 522. Determining what a “natural born Citizen” is involves determining the meaning of a constitutional provision which is strictly within the power of the courts to decide. It is a constitutional birth status. The Constitution gives to the courts the authority and the specific task of interpreting the Constitution, which necessarily includes the words and clauses it uses. “Natural born Citizen” is a clause that exists in the Constitution. As Marbury v. Madison, 1 Cranch 163 (1803) long ago established, our judicial branch of government is duty bound to interpret the Constitution to provide meaning to its clauses and is well equipped to do so. In fact, the courts have been doing just that since the Founding. In fact, our judicial branch of government has for centuries engaged in judicial review of matters involving citizenship. The courts are therefore well equipped to interpret the Constitution which includes interpreting and applying the “natural born Citizen” clause, whose decision on the matter Congress must then respect.

In matter of citizenship, Congress has under Article I, Section 8, Clause 4, power only to make uniform the laws of naturalization. This power does not include the power to define an Article II “natural born Citizen.” To grant Congress the sole or any authority to decide what a “natural born Citizen” is would also defeat the U.S. Supreme Court’s constitutional mandate that it is the “ultimate interpreter of the Constitution.” Nixon v. United States, 506 U.S. 224, 237 (1993). Indeed, Congress is constitutionally bound to follow the lead of the U.S. Supreme Court on the meaning and application of the Constitution. Apart from the First Congress in the Naturalization Act of 1790 considering as a "natural born citizen" a person born out of the United States to U.S. citizen parents which the Third Congress changed to considered as a "citizen of the United States" in the Naturalization Act of 1795, and later Congresses just applying the already existing definition of the clause and providing a different definition of a “citizen of the United States” at birth under the Fourteenth Amendment, neither the Constitution nor historical practice show that Congress has ever taken it upon itself to define a “natural born Citizen.” Finally, for the Congress to take it upon itself to define a “natural born Citizen” in a manner that is not consistent with U.S. Supreme Court precedent would be an unconstitutional usurpation of judicial power which belongs only to the U.S. Supreme Court.

The Twentieth Amendment and 3 U.S.C. Sec. 1 et seq. provide a mechanism for Congress to follow when meeting in joint session for the purpose of counting the Electoral College votes and confirming the constitutional eligibility of a President Elect to actually hold that office. But while Congress surely has the power to count Electoral College votes and if necessary fully investigate the question of a President Elect’s constitutional eligibility to be President and make a decision based on its own investigation, the extent of its investigation can only go as far as its legislative and regulatory powers allow it to go. Again, Congress has no direct power to define a “natural born Citizen.” Defining a “natural born Citizen” also does not fall under any investigation in aid of any legislative function. Also, the Twentieth Amendment does not commit to Congress the task of determining what a “natural born Citizen” is, i.e., what is the definition of a “natural born Citizen.” See Nixon, 506 U.S. at 237 (“Our conclusion in Powell was based on the fixed meaning of ‘[q]ualifications’ set forth in Art. I, § 2. The claim by the House that its power to ‘be the Judge of the Elections, Returns and Qualifications of its own Members’ was a textual commitment of unreviewable authority was defeated by the existence of this separate provision specifying the only qualifications which might be imposed for House membership. The decision as to whether a Member satisfied these qualifications was placed with the House, but the decision as to what these qualifications consisted of was not” (citing and discussing Powell v. McCormack, 395 U.S. 486, 539 (1969)). See also Powell v. McCormack, 395 U.S. 486, 550 (1969) (in invalidating the House's decision not to seat a Member accused of misuse of funds, the Court held that “in judging the qualifications of its members Congress is limited to the standing qualifications prescribed in the Constitution"). Surely, if Congress cannot add to those constitutionally prescribed qualifications for its own members, it also cannot take away from them. Giving Congress the power to define a “natural born Citizen” with respect to presidential qualifications would do just that, either add to the definition or take away from it and thereby impact on the qualifications to be President. Hence, it is clear under Powell that it is the U.S. Supreme Court which must determine the meaning of a “natural born Citizen,” and not Congress.

When the matter in issue is eligibility for public office, the point is well made by Justice Stevens in his concurring opinion in Nixon v. United States:

“In Powell, the House of Representatives argued that the grant to Congress of the power to ‘Judge’ the qualifications of its members in Art. I, § 5, precluded the Court from reviewing the House's decision that Powell was not fit for membership. We held to the contrary, noting that, although the Constitution leaves the power to "Judge" in the hands of Congress, it also enumerates, in Art. I, § 2, the ‘qualifications’ whose presence or absence Congress must adjudge. It is precisely the business of the courts, we concluded, to determine the nature and extent of these constitutionally specified qualifications. Id., at 522. The majority finds this case different from Powell only on the grounds that, whereas the qualifications 246*246 of Art. I, § 2, are readily susceptible to judicial interpretation, the term ‘try’ does not provide an ‘identifiable textual limit on the authority which is committed to the Senate.’ Ante, at 238.”

Nixon, at 245-46 (J. Stevens, concurring). The Constitution under the Twentieth Amendment gives to Congress the authority to decide whether a President Elect is constitutionally qualified for that office. But it also specifies in Article II, Section 1, Clause 5 what “‘qualifications whose presence or absence Congress must adjudge.’” And it is “precisely the business of the courts . . . to determine the nature and extent of these constitutionally specified qualifications.” Indeed, these qualifications are “readily susceptible to judicial interpretation.” Id.

So, while the members of the Senate and the House of Representatives are well qualified to adjudicate any objections to ballots for allegedly unqualified candidates, it is first the courts, interpreting and applying the eligibility criteria found in Article II, Section 1, Clause 5, which includes the “natural born Citizen” clause, which must first inform them whether a President Elect is constitutionally qualified for that office. To hold that Congress alone is qualified to adjudicate objections to any “unqualified” president elect is simply to beg the question of that person’s eligibility for that office.

So, does a settled definition of an Article II “natural born Citizen” exist which Congress is constitutionally bound to apply when deciding whether Obama is Article II eligible to be President? While the Constitution does not provide any fixed meaning of the “natural-born Citizen” clause, there exist outside the Constitution specific standards for us to follow in deciding what the definition of a “natural born Citizen” is and whether Obama meets that definition. These standards exist in historical, U.S. Supreme Court, and Congressional sources. For example, Minor v. Happersett 88 U.S. 162 (1875) has held that a “natural-born citizen” is a child born in a country to parents who were its citizens when the child was born. The unanimous U.S. Supreme Court held there:

“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.”

Minor, at 167-68.

Then United States v. Wong Kim Ark, 169 U.S. 649, 693 (1898) held that a “citizen of the United States” under the Fourteenth Amendment is a child born or naturalized in the United States and “subject to the jurisdiction thereof,” but an Article II “natural born Citizen” is a child born in the United States to citizen parents, citing and quoting Minor v. Happersett and its definition of the clause. The question that Minor did not answer, i.e., whether a child born in the United States to alien parents is a Fourteenth Amendment “citizen of the United States,” was answered by Wong Kim Ark, wherein the United States argued that a child born in the U.S. to alien parents was not a “citizen of the United States” under the Fourteenth Amendment. Ruling against the government, Wong Kim Ark declared a child born in the country to domiciled and resident alien parents to be a “citizen of the United States” at birth under the Fourteenth Amendment. Wong Kim Ark, citing and quoting Minor and acknowledging its definition that a “natural-born citizen” was born in the country to citizen parents, in no way disturbed Minor’s definition of a “natural-born citizen,” for it was asked to decide only if Wong was a “citizen of the United States” under the Fourteenth Amendment. Wong Kim Ark also allowed Wong to be a Fourteenth Amendment “citizen of the United States” because it found that his parents, while not U.S. citizens, were, among other things, domiciliaries, residents of the United States, and not working in some foreign diplomatic capacity and therefore “subject to the jurisdiction” of the United States. So Wong decided only the “citizen” part of Wong’s status. It never decided whether he also had the “natural born” part. The Court cautioned in its opinion in the beginning and at its end that it was only deciding whether Wong was a “citizen of the United States” under the Fourteenth Amendment and also informed us under what limited conditions (born in the U.S. to alien parents who were domiciled and residing in the U.S. and not employed in some foreign diplomatic capacity) it ruled that he was. Hence, a Wong “citizen of the United States” at birth is not to be conflated or confounded with an Article II “natural born Citizen.”

For a full analysis and discussion of these and other sources which confirm that a “natural born Citizen” is a child born in a country to parents who were citizens of that country, see, among other sources such as the various briefs that I have filed with the courts in New Jersey (Kerchner v. Obama; Purpura and Moran v. Obama), Pennsylvania (Kerchner and Laudenslager v. Obama), Virginia (Tisdale v. Obama), and Vermont (Paige v. Obama), and the many articles that I have written at my blog, http://puzo1.blogspot.com/ , Mario Apuzzo, Barack Obama Is Ineligible to be President, For He Is Neither a “Natural Born Citizen” Nor a “Citizen of the United States, at the time of the Adoption of this Constitution,” at http://puzo1.blogspot.com/2012/10/barack-obama-is-ineligible-to-be.html (wherein I demonstrate that a “natural born Citizen” has always been defined in our nation as a child born in a country to parents who were citizens of the country and that that definition has never been changed by constitutional amendment or by the U.S. Supreme Court and that a “citizen of the United States” at birth under the Fourteenth Amendment and Wong Kim Ark is not to be conflated and confounded with a “natural born Citizen”) and Mario Apuzzo, Logic and Defining the “Natural Born Citizen” Clause, at http://puzo1.blogspot.com/2012/11/logic-and-defining-natural-born-citizen.html (where I show how some lower courts and Obama eligibility supporters have engaged in fallacious logical reasoning in how they have defined a “natural born Citizen”).

Having found and confirmed the time-honored definition of a “natural born Citizen,” Congress must then apply that definition to Obama. Assuming that Obama was born in Hawaii, the undisputed facts show the following:

“When Barack Obama Jr. was born on Aug. 4, 1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. [ http://www.uniset.ca/naty/BNA1948.htm ] That same act governed the status of Obama Sr.’s children:

British Nationality Act of 1948 (Part II, Section 5): ‘Subject to the provisions of this section, a person born after the commencement of this Act shall be a citizen of the United Kingdom and Colonies by descent if his father is a citizen of the United Kingdom and Colonies at the time of the birth.’

In other words, at the time of his birth, Barack Obama Jr. was both a U.S. citizen (by virtue of being born in Hawaii) and a citizen of the United Kingdom and Colonies (or the UKC) by virtue of being born to a father who was a citizen of the UKC.

Obama’s British citizenship was short-lived. On Dec. 12, 1963, Kenya formally gained its independence from the United Kingdom. Chapter VI, Section 87 of the Kenyan Constitution specifies that:

‘1. Every person who, having been born in Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall become a citizen of Kenya on 12th December, 1963…

2. Every person who, having been born outside Kenya, is on 11th December, 1963 a citizen of the United Kingdom and Colonies or a British protected person shall, if his father becomes, or would but for his death have become, a citizen of Kenya by virtue of subsection (1), become a citizen of Kenya on 12th December, 1963.’

As a citizen of the UKC who was born in Kenya, Obama’s father automatically received Kenyan citizenship via subsection (1). So given that Obama qualified for citizen of the UKC status at birth and given that Obama’s father became a Kenyan citizen via subsection (1), it follows that Obama did in fact have Kenyan citizenship after 1963.”

http://www.factcheck.org/2008/08/obamas-kenyan-citizenship/ . Todd Leventhal, the chief of the Counter-Misinformation Team for the U.S. Department of State, has accepted as true this description of Obama’s birth circumstances and so stated on a State Department web page, http://blogs.america.gov/rumors/2009/08/21/the-obama-birth-controversy/ , This site now reads: “This site has been archived or suspended.”

Factcheck, in its attempt to show that Obama is a “natural born Citizen,” added: “[T]he Kenyan Constitution prohibits dual citizenship for adults. Kenya recognizes dual citizenship for children, but Kenya’s Constitution specifies that at age 23, Kenyan citizens who possesses [sic] citizenship in more than one country automatically lose their Kenyan citizenship unless they formally renounce any non-Kenyan citizenship and swear an oath of allegiance to Kenya.

Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4, 1984.”

Id.

But that Obama may have lost his British/Kenyan citizenship after his birth (there is no evidence that Obama ever renounced his British birth citizenship), like an alien losing his or her native citizenship later in life and becoming a U.S. citizen after birth, does not nor can it change his birth circumstances. He still was not born a “natural born Citizen” and cannot become one later in life.

So, Obama, even if born in Hawaii in 1961, while born to a U.S. citizen mother, was not born to a U.S. citizen father. Under the British Nationality Act 1948, Obama’s father, being born in Kenya when it was a British colony, was a British/Kenyan citizen. While he traveled to the United States on a student visa to study, he never became a U.S. citizen. Under the same British Nationality Act 1948, Obama himself, through inheritance from his father, was born a British citizen. Under the Kenya Independence Act 1963, also became a Kenyan citizen as age 2.

The Founders and Framers demanded that future presidents, who also were to be our commanders in chief of the military, have allegiance and loyalty from birth only to the United States. Being born the citizen of a foreign country, like a person who is born a citizen of a foreign country and who naturalizes to become a “citizen of the United States” after birth and who we have always recognized as being eligible to be President only if born before the adoption of the Constitution, Obama was not born with sole allegiance and loyalty from birth to the United States. The practical consequence of his birth which no one can change is that he not only was not born with unity of allegiance and citizenship to the United States, but he also was not born within the full and complete political and military jurisdiction of the United States. So, Obama from birth was not fully committed both politically and militarily to the United States, nor could the United States expect such total commitment from him. Obama therefore cannot be an Article II “natural born Citizen,” which under our Constitution is required only of the President, who is also the Commander in Chief of the Military, and the Vice President. who stands to take over the President’s civil and military powers should the need arise.

Apparently, if he was born in Hawaii, Obama can meet the more liberal definition of a Fourteenth Amendment “citizen of the United States” at birth, i.e., born in the United States and “subject to the jurisdiction thereof.” Under this definition, a child born in the United States to domiciled and resident alien parents is a “citizen of the United States” at birth. Wong Kim Ark. But he cannot meet the more stringent definition of an Article II “natural born Citizen,” which only applies to presidential and vice presidential eligibility, born in the United States to citizen parents. Minor. Since, Obama is neither “a natural born Citizen” nor “a citizen of the United States, at the time of the adoption of this Constitution” (was adopted in 1787), Obama is not eligible to be President and Commander in Chief.

One might ask what Congress can possibly do at Obama’s January 4 confirmation hearing given that it has already once confirmed him to be eligible and he has already served one term as President. That Obama has been President for the last four years does not mean that he is a constitutionally legitimate president. Rather, given that Obama is not Article II eligible to be president, he has acted as a de facto president but not a de jure one. A de facto president is a president who is not constitutionally legitimate but who has usurped the office and its powers and who because of practical reasons is tolerated for the time he occupies and exercises the powers of the office, but who can be legally removed through a prescribed legal process. On the other hand, a de jure president is a president who is constitutionally legitimate. Needless to say, tolerating a de facto president (one that is not a “natural born Citizen”) rather than a de jure president not only renders Article II’s presidential eligibility requirement meaningless, flouts the rule of law, and is inimical to a constitutional republic such as the United States of America, but puts the safety and security of our nation at risk.

Our historical precedents have spoken as to who is a “natural born Citizen.” The U.S. Supreme Court has confirmed the definition to be a child born in the country to citizen parents. Congress is constitutionally bound to apply this definition to Obama. Congress’s failure to apply this definition to Obama and to again declare him President of the United States would amount to nothing more than treason upon the constitution and the nation by allowing a de facto president to continue in that all powerful office for a second term rather than a constitutionally legitimate one. The fate of the nation is in the hands of Congress on January 4, 2013.

Mario Apuzzo, Esq.
December 30, 2012
http://puzo1.blogspot.com
####

Copyright © 2012
Mario Apuzzo, Esq.
All Rights Reserved





201 comments:

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daddynoz said...

http://thenaturalbornpresidency.blogspot.com/2011/08/how-we-got-dicked-by-vp-cheney-and.html

daddynoz said...

Thanks for acknowledging my kin enjoyment of "the universe of ideas and a sound mind and body".

This hope for redress is a fool's errand...the congress and highest court will ever continue to hide from their oath and duties.

Oaths and Duty are passe concepts and only for those who know not the reality of how things truly are...hmmm, like those in the military.

As Vonnegut said, so it goes.

Again, thank you for your spirit and desired betterment of the republic.

-1SG Nosworthy

Mario Apuzzo, Esq. said...

daddynoz,

In time of peace and largess, it is all so insignificant. In time of war and hunger, people’s lives depend on little stamps and pieces of paper.

Larry said...

Congress doesn't care whether or not "0" is eligible, they're ALL part of the biggest scam and fraud in recorded history or at least one (alleged) "conservative" would have publicly challenged "0" years ago. If congress ever does begin the impeachment process, it seems the first thing they will have to do is stipulate that "0" is legitimately holding office. The entire situation is one huge tangled and corrupt mess and it must be carefully and effectively untangled and addressed! "0" is owned and controlled by the largest and boldest group of thugs and criminals that I've ever seen or heard of in my entire lifetime!

daddynoz said...

"...people’s lives depend on little stamps and pieces of paper."

No doubt, a comment wasted on most. Not many in the past ten or so years have have had to sacrifice, but there may come a day when everyone will suffer some measure (i.e. EMP blast or something horribly worse).

For now it is a only small fraction of the public that has known the direct consequence of war, I fear perhaps there is an awful more.

Last year (2012), more folks in uniform died from self destruction than at the hand of the enemy...this particular year past might be considered in high regard to that of what is in store. I dearly hope not, but the world is unfortunately in a very fragile and dangerous state.

Art II eligibility may very well be the least of of our concern.

Stan said...

Mr. Apuzzo,

I fot one appreciate very much your staying with this issue, and so clearly put.

The American presidency has been hijacked, the rule of law demolished. We must never forget that. America is now in the position Germany was when Hitler declared: "I am the law." Maybe the current citizenship can 't see that. But history will tell of it. And will harshly judge both those who were involved directly in the crime, and those who looked the other way, and pretended not to notice.

Thanks for noticing, and announcing, loud and clear, that the emperor has no clothes.

Mick said...

Wong Kim Ark also held that the children of legal resident aliens, born in the US are "naturalized without the aid of legislation" by the 14th Amendment (see 169 US 649, @703), acknowledging that the Constitution itself can naturalize US Citizens, just like art. 2 section 1, c. 5 did in 1787--"or a citizen at the time of the ratification of this constitution."
At that time A2S1C5 was the only naturalization vehicle. Those that were residents of the newly formed states were naturalized when that state ratified the constitution, by art 2, and they were eligible to be President.
Today natural born Citizens' right of US Citizenship derive from Art. 2, while those naturalized, either by oath or without the aid of legislation are derived from the 14A. Of course there are no more "citizens at the time of the ratification", but there are natural born Citizens. Article 2 describes a point in time, when the first natural born Citizens, those born since 7/4/1776, were only 13.

Mario Apuzzo, Esq. said...

Mick,

I of II

If one is to correctly understand what a “natural born Citizen” is, it is critical to distinguish between a “citizen” and a “natural born Citizen.” This distinction had always been made by the great natural law writers who the Founders and Framers studied such as Cicero, Puffendorf, Burlamaqui, and Vattel. The “citizens” had always been considered the “members of a civil society” and a “natural-born citizen” had always been defined as “those born in the country, of parents who are ‘citizens.’” Emer de Vattel, The Law of Nations, Section 212 (1758). I have cited to historical sources, U.S. Supreme Court cases, and Congressional naturalization acts which since the beginning of our republic have confirmed and accepted this natural law/law of nations dichotomy and these definitions. A fortiori, given this dichotomy and definition of a “natural-born citizen,” there have to be “citizens” before there can be “natural born Citizens.”

The Founding of the United States followed this natural law/law of nations pattern. The Declaration of Independence and people’s adherence to the American Revolution produced of those people the original “citizens of the United States,” who went on to procreate the first “natural born Citizens,” with the process repeated through generations to the present and into the future. This scheme also followed logically from our naturalization laws which produced of persons born out of the United States and who adopted the United States as their new home additional “citizens of the United States,” who also went on to procreate “natural born Citizens,” which process repeated through generations.

This historical citizenship development was confirmed by Minor v. Happersett (1875) which explained that the word “citizen” is nothing more than membership in the United States. The unanimous U.S. Supreme Court in Minor also held that, based on the common law with which the Framers were familiar, any child born in a country to parents who were its “citizens” was not only automatically at birth a “citizen” like the parents, but also a “natural-born citizen.” The Court explained that under that same common law, all other persons were aliens or foreigners, and could become U.S. “citizens” by way of Congress’s naturalization laws. Minor also informed that it was not necessary for the Court to decide whether a child “born within the jurisdiction” of the United States to alien parents was to be accepted as a “citizen” under the Fourteenth Amendment (to be distinguished from common law) which was passed in 1868. We know that this other class of child could theoretically be a “citizen” under that 1868 amendment, but could not be a “natural-born citizen” under that 1787 common law, for he or she was not born to “citizen” parents which the Minor told us was under that common law, along with birth in the country, the other requirement of being born a “natural-born citizen.” So, under the common law with which the Framers were familiar when they drafted the Constitution and inserted therein the “natural born Citizen” clause, and as confirmed by the Naturalization Act of 1790, 1795, and 1802, a child born in the country to “citizen” parents was born a “natural-born citizen,” and a child born in the country to alien parents was an alien. We can also see that after the Fourteenth Amendment was passed, with its expansive “subject to the jurisdiction thereof” clause, a child born in the country to alien parents could theoretically be born a “citizen” by virtue of that amendment.

Such a historical explanation of U.S. citizenship also shows that Minor, in referring to “common law,” referred to American common law which in matters of citizenship had its foundation in the law of nations (was jus sanguinis based), and not to English common law, which being jus soli based, and therefore except for foreign diplomatic or military invading parents, did not hold the citizenship of the parents of a child born in the King’s dominions to be relevant.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

U.S. v. Wong Kim Ark (1898) answered the question left open by Minor, i.e., whether a child “born in the jurisdiction” of the United States was a “citizen” under the Fourteenth Amendment. Wong Kim Ark was not willing to limit birthright citizenship (membership) only to children born in the United States to citizen parents. But in speaking of birthright citizenship, Wong Kim Ark was referring to birthright membership in the United States, and not to the status of being a “natural born Citizen.” Citing and quoting Minor and its definition of a “natural-born citizen,” the Court said that the Minor Court was not committed to the idea of excluding from being a “citizen” under the Fourteenth Amendment children who were born in the jurisdiction to alien parents. While Wong Kim Ark recognized that a “natural born Citizen” was a child born in the country to parents who were citizens of the country, the Court said that being born in the country made a child born in the country to alien parents as much a “citizen” as a “natural born citizen” child who was born in the country to “citizen” parents. To come to this conclusion, the Court used the English common law, which considered any child born in the King’s dominion (with the exception of children born to foreign diplomats or invading armies), even if born to alien parents, an English natural born subject.

Wong Kim Ark was concerned that if birthright citizenship was limited to being born in the country to U.S. “citizen” parents, Congress could decide to discriminate against any class of person by simply not allowing those persons to become naturalized which would in turn prevent their U.S.-born children to become U.S. “citizens” at the time of their birth. The Court concluded that, while Congress continued to be free to exercise its naturalization powers, the Fourteenth Amendment prevented it from denying birthright citizenship to any person born in the United States and “subject to the jurisdiction thereof.” So, by the Court deciding what “subject to the jurisdiction” meant, the Court took away from Congress any say over who can be a U.S. “citizen” by mere birth in the United States.

But again, Wong Kim Ark, with Wong being born in the United States but to alien parents, resolved the later question of who, in addition to a “natural born Citizen,” could be born a “citizen” of the United States through birth within its territory. It did not resolve who could be born a “natural born Citizen,” the definition of which the unanimous U.S. Supreme Court in Minor had already confirmed as existing under common law with which the Framers were familiar when they inserted the “natural born Citizen” clause into Article II and informed that that common law required not only birth in the country but also birth to “citizen” parents. This means that still today, a “natural born Citizen,” as distinguished from a “citizen,” is a child born in the United States to U.S. “citizen” parents and as such is from birth a member of the United States. This also means that any other U.S. “citizen,” who is not a “natural born Citizen,” but who through the Fourteenth Amendment or Act of Congress is also given membership in the United States at birth, is a “citizen of the United States” under the Fourteenth Amendment or Act of Congress, but not a “natural born Citizen” under common law.

4zoltan said...

Mr. Apuzzo,

In the hearing before the Kansas State Objections Board, Secretary of State Kris Kobach told the objector to President Obama's addition to the ballot that Minor v. happersett was dicta and the question before the Court was only voting rights. He said, "Speaking personally, and I don’t know what the other members of the Board feel, as far as the legal definition of what constitutes natural-born citizen, I think it reads too much into Minor v. Happersett to say the person must be born in the United States of two citizen parents because that was not the question at stake therein. The wording of Minor v. Happersett doesn’t to my reading make it a necessary condition of citizen to have two U.S. citizen parents.”

http://www.scribd.com/doc/113217257/KS-2012-09-13-Transcript-of-Proceedings-of-KS-Objections-Board-Montgomery-Et-Al

Mario Apuzzo, Esq. said...

4zoltan,

Kansas State Objections Board, Secretary of State Kris Kobach, is wrong in stating that Minor was a case only about voting rights and that its definition of a “natural-born citizen” was dicta. First, I can see that he chose to use the Obama eligibility supporters unreasonable position on how to read Minor and that he just repeated that position. If it were not for the Obama eligibility controversy, I doubt anyone would say that Minor was a case only about voting rights and not also centrally about citizenship.

Here is my proof, apart from my own reading of the case, that the case is also binding precedent on matters of citizenship. In several cases that cited Minor, they recognized Minor as a case defining citizenship in the United States. In one case, the Court said that

“this court [Minor] held that the word ‘citizen’ is often used to convey the idea of membership in a nation, and, in that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United States, as much so before the adoption of the fourteenth amendment of the constitution as since.”

In Re Lockwood, 154 U.S. 116 (1894).

The other case is Wong Kim Ark. Wong Kim Ark also shows that Minor is not a case only about voting rights. Wong Kim Ark confirmed that Minor was a case about citizenship and not just about women’s right to vote. It cited and quoted Minor’s exact definition of a “natural-born citizen.” Here is what Wong Kim Ark said about the Minor decision as it relates to who may be “citizens” and who may be “natural-born citizens:”

“The decision in that case was that a woman born of citizen parents within the United States was a citizen of the United States, although not entitled to vote, the right to the elective franchise not being essential to citizenship.”

Wong Kim Ark, 679-81. Note that for the Minor Court to conclude that Virginia Minor was a "citizen," it thoroughly reviewed the development of citizenship in the United States, starting with the American Revolution and down to the Fourteenth Amendment. In going through that history, it explained how the Framers defined a “citizen” and a “natural-born citizen” under common law with which the Framers were familiar when they drafted the Constitution.

So we can see that, apart from the many other cases that may have cited Minor v. Happersett as a citizenship case, Wong Kim Ark said that Minor decided the issue of whether Virginia Minor was a “citizen.” Again, in referring to Minor’s addressing the question of her citizenship, it said “[t]he decision in that case.” It said that Minor answered the question of whether Virginia Minor was a “citizen” in the affirmative, although it held that such citizenship status did not give her the right to vote.

So there should not be any question that, even as the U.S. Supreme Court in Wong Kim Ark instructs, Minor was a case not only about a woman’s right to vote, but as much a case about citizenship. Wong Kim Ark itself told us that Minor resolved a question about citizenship. Therefore, Minor’s definition of a “natural-born citizen” which it gave in the context of resolving the question of whether Virginia Minor was a “citizen” is one of the holdings of the case and binding precedent.

Second, Mr. Koback or any court has no basis to give Wong Kim Ark, a case that interpreted what a “citizen” is under the 1868 Fourteenth Amendment and not what a 1787 Article II “natural born Citizen” is, any binding effect in determining whether Barack Obama is an Article II “natural born Citizen.” What is extremely intellectually dishonest is to argue, given the context of both cases, that on defining a “natural-born citizen,” Minor is dicta and Wong Kim Ark binding precedent.

William St. George said...

Obama's eligibility cases have verified that the judiciary in the USA is corrupted. We already knew that but this is a kind of definitive proof. Due to the inter-connectedness of things no one is safe who poses any significant threat to their power. So it is obvious now that even well reasoned legal opinions are simply scoffed at and not seen as a problem.
Is this the time for heroes? And what would a hero do? We are out gunned, that is obvious. Fine speeches made in almost empty rooms or even great essays tossed out upon the web will only entertain the few.
Still, not knowing what to do is a start. It will take some kind of an unusual insight or intuition dropped into just the right mind at the right time. Perhaps another Caesar or Alexander is waiting in a small well lite cafe! And as he stares out into the darkness through the plate glass window, a reflection on the glass . . . All I know is that it will happen--but not when or to whom. Perhaps like the calculus it will fall into several minds at nearly the same time. All we can do now is wait and pray. Blessings on all true patriots.

4zoltan said...

Mick

"naturalized without the aid of legislation" by the 14th Amendment"

Is this the passage you are referring to?

Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation. The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship."

MichaelN said...

Mario, you said....

"Such a historical explanation of U.S. citizenship also shows that Minor, in referring to “common law,” referred to American common law which in matters of citizenship had its foundation in the law of nations (was jus sanguinis based), and not to English common law, which being jus soli based, and therefore except for foreign diplomatic or military invading parents, did not hold the citizenship of the parents of a child born in the King’s dominions to be relevant."

Maybe the "citizenship of the parents of the child" was irrelevant, but the "subject" status of the father of the child was of paramount importance.

I think it would be better said that the 17th century English held jus soli and jus sanguinis together to be both necessary and essential requirements to the making of a "natural born subject", in the case of those born to alien-born parents.

i.e. only born in England was not sufficient to make an English "natural born subject"; in the case of birth to an alien-born father, the father must by necessity be a subject/citizen.

ksdb said...

@4zoltan, Kobach's opinion on "reading too much" into Minor was already debunked in the legal brief that was filed with the Kansas Objections Board listing NOT just Minor, but a total of eight SCOTUS cases that support Minor's definition of NBC, including the 1913 Luria case which specifically cites Minor (and not Ark) as legal precedent for Article II eligibility. This completely destroys the notion that Minor was only a voting rights case. Obama's counsel relied on only one citation from the SCOTUS (from Ark), but that citation said NOTHING at all about Art. II eligibility or the term natural-born citizen ... and it was contradicted within the Ark decision when it noted from Minor that the 14th amendment does NOT say who shall be natural-born citizens. This is why the Kansas Objections Board failed to make a decision at the time of the hearing, as is prescribed by statute. The board tried to buy time to find stronger caselaw and/or compelling evidence, neither of which were presented by Obama's counsel.

Linda said...

@Mick

Here is the quote I think you were referring to:

"Congress having no power to abridge the rights conferred by the Constitution upon those who have become naturalized citizens by virtue of acts of Congress, a fortiori no act or omission of Congress, as to providing for the naturalization of parents or children of a particular race, can affect citizenship acquired as a birthright, by virtue of the Constitution itself, without any aid of legislation."

That means that while Congress can decide whether a particular race may a be naturalized, Congress has no power to limit the rights of citizens born in the US. Those born in the US have acquired birthright citizenship by virtue of the Constitution alone, without aid of legislation.

The next sentence in the same paragraph you referenced proves that:

"The Fourteenth Amendment, while it leaves the power where it was before, in Congress, to regulate naturalization, has conferred no authority upon Congress to restrict the effect of birth, declared by the Constitution to constitute a sufficient and complete right to citizenship."

Linda said...

@ksdb and 4zoltan:

The Luria case involved the loss Luria's naturalized citizenship. The Court in Luria in no way referred to the Court in Minor's defining NBC, and did not cite any such "definition" as precedent for Article 2 eligibility.

Luria did not involve presidential eligibility or natural born citizenship whatsoever. The phrase "natural born citizen" is not even used by the Court anywhere within the decision.

The only cite of Minor in the Luria decision is the following:

"Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827. ..."

Linda said...

@Mario Apuzzo and 4zoltan:

1. The Court did not conclude that Minor was a citizen, it was presented that information in the question posed to the Court.

"THE CHIEF JUSTICE delivered the opinion of the Court.
The question is presented in this case whether, since the adoption of the Fourteenth Amendment, a woman who is a citizen of the United States and of the State of Missouri is a voter in that state notwithstanding the provision of the constitution and laws of the state which confine the right of suffrage to men alone."
(emphasis added)

2. The Court itself said citizenship was not necessary in some instances to vote in many states, Minor's Missouri included, so if citizenship was not necessary to vote, certainly natural born citizenship was not required.

"Besides this, citizenship has not in all cases been made a condition precedent to the enjoyment of the right of suffrage. Thus, in Missouri, persons of foreign birth, who have declared their intention to become citizens of the United States, may under certain circumstances vote. The same provision is to be found in the Constitutions of Alabama, Arkansas, Florida, Georgia, Indiana, Kansas, Minnesota, and Texas."

3. The holding of the Court does not reference citizenship:

"Being unanimously of the opinion that the Constitution of the United States does not confer the right of suffrage upon anyone, and that the constitutions and laws of the several states which commit that important trust to men alone are not necessarily void, we
Affirm the judgment."

4. Knowing the above and that (a) dicta means basically a comment by a judge not necessary to the reach the opinion, and (b) it was not and is not necessary to be a natural born citizen to vote, how could the Court's reference to natural born citizen be anything but dicta?

Mario Apuzzo, Esq. said...

Linda,

With Kansas Secretary of State Kobach saying that Minor was a case only about voting rights, the question was whether Minor is a case just about voting rights. I said that it was just as much a case about citizenship than it was about voting rights.

Now you are moving the goal posts, wanting to argue what Minor said about citizenship.

Addressing the point that was raised and not your new argument, we have identified at least three U.S. Supreme Court cases that cited Minor for citizenship: Wong Kim Ark (includes in the reference to Minor the element of citizen parents), In re Lockwood (also includes in the reference to Minor the element of citizen parents), and Luria.

Linda said...

@Mr. Apuzzo,

Above you said "Kansas State Objections Board, Secretary of State Kris Kobach, is wrong in stating that Minor was a case only about voting rights and that its definition of a “natural-born citizen” was dicta."

My question to you was, with regard to the Minor decision, how can the Court's reference to natural born citizen be anything but dicta. Your response did not address my question and I most certainly did not move any goalposts.

I agree that Minor was a citizenship case in the sense it ruled that the Constitution did confer the right of suffrage on any citizen. That ruling was not dependent on whether Minor was a natural born or naturalized citizen. Therefore, any discussion by the Court of natural born citizenship was dicta.

You stated otherwise and in support of your position, you quote from from two decisions and go on to say you have identified at least three SCOTUS cases that cite Minor on citizenship. However, none of those cases credit Minor with defining NBC. In fact, Luria and Lockwood do not even mention it. I don't understand why you use those cases in responses to my question about reference NBC in Minor being dicta.

Surely, if the Court in Minor did something so important as to define NBC in the US, who is and is not eligible for the presidency, at least one other Court would have noticed.

Show me quotes of other SCOTUS cases which say the Court in Minor defined NBC, and I will concede your point. If you can't, you should be big enough to concede mine.

Mario Apuzzo, Esq. said...

MichaelN,

As you know, I have previously addressed on this blog the English common law and its requirement that the "alien" be a "subject" of the King in order for the alien's child born in the King's dominion to be born a "natural born subject." Hence, I agree with you on that score.

When I said, with the noted exception for parents who were foreign diplomats or military invaders, that the English common law did not consider relevant the citizenship of the parents, I only meant to say that even a child born in the King's dominion to an "alien" in amity was considered a "natural born subject." The English common law treated all aliens in amity present in the King’s dominions as subjects of the King. Hence, requiring that an alien parent be a subject of the King really did not add anything to the requirements for a child born in the King’ dominions to be a "natural born subject" of the King, for all that was necessary was for the parent to be present in the King’s dominions which would have been necessarily the case if the child was to be born in the King’s dominions.

I do not see a need to reconcile the English common law with the citizenship practice in the United States. In the United States, after July 4, 1776, the story was much different than that under the English common law. Simply, we did not use the English common law to define our new national citizenship. We did not treat aliens in amity as "citizens." Rather, only if an alien formally naturalized did the alien and derivatively his minor children become a "citizen of the United States." This means that, unlike the British, we did not grant birthright citizenship to children of aliens born in the United States. In the short years after 1776, some of the states might have still operated under the English common law with respect to their state citizenship. But that practice stopped when citizenship became nationalized. This new national citizenship is confirmed by the Naturalization Acts of 1790, 1795, 1802, and 1855 and Minor v. Happersett (1875) which said that, despite what “some authorities” had maintained, “there have been doubts” whether children born in the United States to alien parents were even “citizens” (let alone “natural-born citizens”).

We know that this changed in 1898 with Wong Kim Ark, which, following the lead of the New Jersey Supreme Court in Benny v. O'Brien, 58 N.J. Law, 29 Vroom 36, 39, 40 (1895), granted birthright membership in the United States to a child born in the United States to domiciled and resident alien parents (not U.S. citizens). With the Fourteenth Amendment, a new citizenship standard was put in place. That more relaxed standard only required that a child born in the United States be born “subject to the jurisdiction thereof.” Wong Kim Ark ruled that such “jurisdiction” did not require that a U.S. born child’s parents be U.S. citizens. Rather, it held that jurisdiction was established even if the U.S.-born child was born to domiciled and resident alien parents. Hence, Wong Kim Ark created under the Fourteenth Amendment a new class of birthright membership in the United States, i.e., "citizen of the United States" at birth by birth in the United States to non-U.S. citizen parents, but not a new definition of a "natural born Citizen," which the Court confirmed had already been provided by Minor and which definition had always required not only birth in the United States, but also birth to citizen parents.

Dancing Rabbit said...

The etymology of natural gives the meaning of 'natural' born citizen.

"Yearnings to be with her natural kind." Wordsworth

Who are Obama's natural kind? Who were the Founders natural kind?.

If there the same 'Kind' Obama is a natural born citizen.

Dancing Rabbit said...

Etymology: OE gecynde KIND: orig. = natural, native Webster's 1828 Dictionary.

kin; kindred,from Old English cyn(n) race, family, kin; kind from Old English gecynde, natural, native Academic Dictionaries n Encyclopedias

"Kind'less" Shakespeare means unnatural

"Kindly,natural: belonging to the kind or race, from father to son, for several generations." Chambers's 20th Century Dictionary 1908


kind Origin: Old English gecynde "natural,native";http://oxforddictionaries.com/definition/english/kind--2

When someone says, "that was very kind(natural) of you," what they mean "you are treating me like we were born of the same family."

Dancing Rabbit said...

un gecynde, not belonging by race or kind, un-natural, gecynde, adj. natural, native, "Two of the Saxon chronicles" Charles Plummer 1892

"Gecynde, race, natural, family generation cynn, natural native." Anglo Saxon Dictionary". Toller 1921

"Kind" True to the spirit of their race. A.S. cynn (kin), natural > a tribe. Kind originally meant Natural." Professor Brainerd Kellogg 1911

ge-cynde, adj., [kind] natural, race, cynn, "Beowulf" by Alfred John Wyatt.

people, nation, tribe, family, offspring, progeny;—kind, nature, quality. cynde, natural, innate (1885) Handy Poetical AngloSaxon Dictionary


ksdb said...

@Linda, you're arguing against yourself when you gave the Luria citation. Did you NOT read it?? I said it cites Minor and NOT Ark in regards to article II eligibility. You helped prove this.

Plus, it does reference presidential eligibility. Here's the specfic portion of the quote you overlooked:

"... a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett ..."

The earlier claim was that KS SOS Kobach said Minor was ONLY a "voting rights" case, but this citation affirms that Minor was a precedent on presidential eligibility AND citizenship.

Further, YOU claim that Luria says nothing about natural-born citizen, which is only true in regards to the specific use of that term, but this moot. The citation DOES talk about Article II presidential eligibility in terms of citizenship. A reading of Minor shows that it equated natives with natural-born citizens in that these two terms are BOTH EXCLUSIVELY defined as "all children born in the country to parents who were its citizens." Again, the absence of an Ark citation in that passage is what make the Minor NBC definition compelling. Luria was AFTER the Ark decision. It does NOT cite Ark in reference to presidential eligibility NOR native/natural-born citizenship.

Mario Apuzzo, Esq. said...

Linda @1/2/13 12:56 p.m.,

1. Like all cases to the U.S. Supreme Court, the parties present a question to the court. But in Minor, the Court did not simply assume what was stated in the question about Virginia Minor being a “citizen.” The Court showed by dedicating almost half of its decision to the question of citizenship how historically and under our laws she was as much a “citizen” as any man born under the same circumstances.

2. First, Virginia Minor had argued that she was a citizen and that citizens enjoyed privileges and immunities under Article IV. She added that voting was a privilege and immunity under Article IV. She also argued that as a citizen, she enjoyed privileges and immunities under Article IV which included the right to vote which Missouri could not deny her because of the Fourteenth Amendment. Hence, the Court felt citizenship was necessary to the presentation of its decision because only a citizen can enjoy Article IV privileges and immunities and their protection under the Fourteenth Amendment. After holding that women were citizens, the Court then held that even though women were citizens, because of historical legal development, they still did not have the right to vote. Maybe the Court was telling the nation that women are citizens and they should have the right to vote just like men. We did eventually have the Nineteenth Amendment passed in 1920. Do you not agree with me that it was a small big step for the Court to tell us that women were citizens like men and that only the law had to be changed so that they could enjoy the right of suffrage.

Second, whether citizenship was necessary or not necessary to the Minor decision is neither here nor there. You do not get to rewrite the Court’s decision. The majority of the U.S. Supreme Court thought the issue of citizenship was important enough to analyze and write about extensively in its decision. That is what counts for giving us binding or at least persuasive law, not what in your opinion you think was necessary or not necessary for the Court to do. Third, using your logic, the words of a handful of courts which have reached the merits of the definition of a “natural born Citizen” and whether Obama meets that definition are all dicta. All these cases did not have to reach those merits, for all these cases were or could have been dismissed on standing, jurisdiction, or some procedural ground. So, apart from the great majority of the cases in your highly touted and misrepresented string citation that never reached the merits of the question of what is a “natural born Citizen” and whether Obama meets that definition, what does that do to your cases that did reach those merits (e.g. Ankeny, etc)? Under your thinking, none of them count.

3. Minor had two holdings, one about citizenship and another about women’s voting rights.

4. See No. 2 above.

MichaelN said...

@ Dancing Rabbit
"natural" in the context of the USC Article II is a PART of a term of art.

In this instance of Art II of the USC, it does not mean what "natural" would "normally" mean.

e.g. it doesn't mean born other than caesarian-section or born unnaturally.
It doesn't mean born say without the aid of medical assistance, as opposed to born in a hospital.

Given the Framers high regard for and usage of Vattel's Law of Nations, in the framing period, and given the Minor v Happersett SCOTUS opinion, and given the change in the 2nd version of the US naturalization act in 1795, it is clear that USC Article II "natural born Citizen" meant one who was born not only to US parents, but also native-born in US.

Mario Apuzzo, Esq. said...

Linda @1/2/13 at 2:37 p.m.,

First, your reasoning is fallacious. A U.S. Supreme Court case provides a rule of law based on the legal issue it resolved and how it resolved that issue. That subsequent U.S. Supreme Court cases do not have the need to comment on any specific aspect of that earlier decision does not somehow render that earlier decision meaningless or even reduce the importance of what that earlier decision said on that decided issue. So, just because later U.S. Supreme Court cases might not have had the need to say that Minor defined a “natural born Citizen” does not equate to Minor not having defined the clause. So you can more easily understand the logic, if a U.S. Supreme Court case says the sun exists, the sun exists even if there are no subsequent cases which may or may not have had the need to comment that they agreed with that earlier case.

Second, you again shoot yourself in the foot. You argue that Wong Kim Ark held that Wong was an Article II “natural born citizen.” Using your logic, there is no U.S. Supreme Court case that credits Wong Kim Ark with holding that Wong, a child born in the United States to alien parents, was an Article II “natural born Citizen.” “Surely, if the Court in [Wong Kim Ark] did something so important as to define NBC in the US, who is and is not eligible for the presidency, at least one other Court would have noticed. Show me quotes of other SCOTUS cases which say the Court in [Wong Kim Ark] defined NBC, and I will concede your point. If you can’t, you should be big enough to concede mine.” You see, this again confirms what I have said all along that people like you like to hold others to standards that you yourself are not able or willing to meet and you will impose those standards on others when it serves your end.

MichaelN said...

Quote:
" ......the best way to exploit this case is to simplify the context and the point.

A. Virginia Minor claimed a right to vote on the basis of being a 14th amendment citizen.

B. The court REJECTED this argument because she fit its definition of NBC.

C. The court recognized different classes of citizens by birth, but only ONE was characterized a natural-born: all children born in the country to citizen parents.

D. The other class of citizenship by birth has doubts that must be resolved, but not for natural-born citizens. Thus, in context, natural-born means a type of citizenship that is “without doubt,” otherwise one is naturally considered to be a foreigner or alien.

E. In rejecting Virginia Minor’s 14th amendment citizenship argument, the court says that the 14th amendment does NOT define natural-born citizenship ... and this is confirmed in U.S. v. Wong Kim Ark: “In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: “The Constitution does not, in words, say who shall be natural-born citizens.” “

F. The Minor decision was UNANIMOUS. There was no dissent on how the court defined NBC. The decision and NBC definition was affirmed and upheld by the SCOTUS in U.S. v. Wong Kim Ark (in both the majority opinion AND in the dissent). There is NO compelling legal authority that trumps this definition."

http://www.freerepublic.com/focus/f-bloggers/2830605/posts

MichaelN said...

Quote:
"Whether persons born in the US to non-citizen parents were “citizens” was not a question before the Minor Court because Mrs. Minor was natural-born, whereas Wong Kim Ark was not. The determination of his citizenship required the 14th Amendment, whereas Mrs. Minor’s did not."

Click here to read all of the article

Mario Apuzzo, Esq. said...

Minor v. Happersett, 88 U.S. 162, 167-68 (1875), held:

“The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens.”

Id. at 167-68.

We can see that the Court in Minor set out to demonstrate who was a “citizen” at birth at common law with which the Framers were familiar when they drafted the Constitution. Under that common law, by defining a “natural-born citizen,” the Court informed who were “citizens” at birth and under what birth circumstances they needed to be born in order to inherit that birth status. So, what the Court said is that all “children born in a country of parents who were its citizens” were at birth, not only “citizens” like their parents, but also “natural-born citizens.”

It follows a fortiori from the Court’s definition that the parents of a “natural-born citizen” child must be “citizens” at the time of the child’s birth and that a child born to them in the country of which they are “citizens” becomes at the time of his or her birth a “natural-born citizen.” It also follows from that definition that the child must be born in a country to parents who were its “citizens,” for it would be impossible for the child to be a “citizen” at birth like his or her parents if the parents were not “citizens” also. Another conclusion that we can draw from this definition is that to have a “natural-born citizen,” the child and the child’s parents have to be of one and the same allegiance and citizenship, for when the mother, who historically had the same citizenship as her husband, is located in the country of which she and her husband are “citizens” and the child is born to her in that country, the parents and their child have only one allegiance and citizenship. Finally, rather than just the consequence of being born a “citizen” being the test for defining a “natural born Citizen,” we can see that the Court explained that it is the child's birth circumstances which create that consequence that provide the definition of a “natural born Citizen.” And those birth circumstances are birth in the country to parents who were its citizens.

Button Knows Best said...

If Obama is not a natural born citizen, how can he be prevented from being sworn in a 2nd time? And who is going to step forward to prevent it? Our national security depends on it.

Linda said...

@ksdb 1/2/13 12:16PM

Please reread my comments. I said NBC was not used in the decision. I did not say that presidential eligibility was not used. I said the case was not about that and did not involve that issue.

I stand by what I said. Luria in no way involved presidential eligibility. Luria was a naturalized citizen who lost even that citizenship. He was never eligible, there no question of his being eligible, the Court did not rule on his eligibility. Because the term appears in the decision does not mean that was the subject of the case .

You stated above "...but a total of eight SCOTUS cases that support Minor's definition of NBC, including the 1913 Luria case which specifically cites Minor (and not Ark) as legal precedent for Article II eligibility."

That is simply incorrect. (I am addressing only Luria here.) The Luria decision does not support Minor's "definition of NBC" . It does not reference NBC or any definition of NBC whatsoever. The Court in Luria does not cite Minor as precedent for Article II eligibility. It does cite Minor and the term presidential eligibility is within the quote. That does not mean Minor was cited as "precedent" for presidential eligibility.

If you don't understand that, quote mining court decisions will probably lead to more confusion/frustration. If you do understand that, you are misrepresenting the Court's findings.

Linda said...

@Mario Apuzzo 1/2/13 11:34PM

1. Agreed, to a certain extent. The Court did take time to show that women have always been considered citizens in the US. It did not, however, described Minor's personal circumstances, other than her gender. IIRC, it did not say who her parents were or what their citizenship status was.

2. Again, I agree in part. I think the Court did a good job in showing that women have always been citizens and that voting was not guaranteed by the Constitution. I understand why the Court went into the discussion of citizenship, as that was part of the question presented to it.

I disagree that whether a subject was necessary to the decision or not is "neither here nor there". That is the difference in what can make a binding precedent and what is dicta, by definition.

The Court's discussion of the history of women's citizenship was necessary as part of the case presented. NBC was not.

I do not have a string cite. In reference to the Obama eligibility cases, you are mixing apples and oranges. NBC and whether Obama is an NBC were integral to eligibility/ballot access cases. Whether the courts should have addressed the merits of a case being dismissed is a different question. After all the haranguing by many that "no court has ruled on the merits", I think the complaint that some did and shouldn't have is ironic.

3. Be careful with that. If you believe Minor has two holdings, how many does WKA have?

4. The definition of dicta is discussion by the court not necessary to the ruling. The ruling was that the Constitution does not grant anyone the right to vote. Citizenship is generally necessary, and it was presented in the question posed to the Court. It did not matter whether Minor was an NBC or a naturalized citizen, the result would have been the same. Therefore, any "definition" or discussion of NBC in the decision is dicta.

Linda said...

@Mario Apuzzo 1/3/13 12:09AM

First, it was you, who in response to my position that any "definition of NBC" in Minor was dicta stated "... we have identified at least three U.S. Supreme Court cases that cited Minor for citizenship: Wong Kim Ark (includes in the reference to Minor the element of citizen parents), In re Lockwood (also includes in the reference to Minor the element of citizen parents), and Luria.

Why say Minor was cited as to citizenship if you do not believe being cited by other SCOTUS cases is important?

Why use those cases when they do not address my question about the Minor Court's NBC discussion being dicta?

Second, I have not discussed WKA in this thread (with the exception of addressing what I believed to be a misquote by another poster). I have never argued the Court held that WKA was an "Article II natural born citizen". Neither have I argued that the Court in WKA "defined" NBC. I believe the ruling of the Court in WKA makes it clear he was an NBC, but that is a different discussion.

Mario Apuzzo, Esq. said...

Linda @1/4/03, 10:49 AM,

You keep peeling more layers off the onion for other people’s soup, but not your own.

The initial question was whether Minor was a case only about voting rights or a case about citizenship and voting rights. Kansas Secretary of State Kris Kobach said Minor was only about voting rights. I along with other commenters said SOS Kobach erred in so concluding. We have shown you by presenting later U.S. Supreme Court cases that Minor was not only about voting, but also about citizenship. We showed you that Wong Kim Ark, In re Lockwood, and Luria cite to and quote Minor on citizenship issues. Hence, we proved you and SOS Koback wrong.

Having recognized your loss but not conceding it, now you want to surreptitiously move the goal posts and argue about whether Minor and by extension Luria really addressed specifically the definition of a “natural born Citizen” and generally presidential eligibility. You make distinctions between “natural born Citizen” and “presidential eligibility” and use words such as “involved” and “used” to argue that Luria did not “use” “natural born Citizen” in its decision and further, that simply because Luria “used” presidential eligibility in its decision does not mean that the case “involved” presidential eligibility.

First, whether Minor provides a binding precedent on the definition of a “natural born Citizen” is a different issue from whether the case was just about voting rights or also about citizenship. Concede the first issue, i.e., that Minor is as much a case about citizenship than it is about voting rights and then we can move on to the second issue which concerns whether Minor provides a definition of a “natural born Citizen,” whether that definition is binding precedent, and whether Minor has any impact on presidential eligibility.

Second, concede that your technique of distinguishing a case by demonstrating what the decision “used” versus what it “involved” also applies to a correct analysis of Wong Kim Ark and the question of whether it defined a “natural born Citizen” any differently from how Minor defined one. It is simply intellectually dishonest for you to try mightily to distinguish Minor and deny its precedential value on the question of what is a “natural born Citizen” and its impact on presidential eligibility, but cite and quote Wong Kim Ark as binding precedent on the notion that any child born in the U.S. to alien parents is also a “natural born Citizen” and potentially eligible to be president, when Wong Kim Ark to reach its holding that Wong was a Fourteenth Amendment “citizen of the United States” “used” an English “natural born subject,” but did not “use” or “involve” an American Article II “natural born Citizen” and neither “used” nor “involved” presidential eligibility.

Again, using standards and words which you impose on others, but to which you refuse to adhere to: “If you don't understand that, quote mining court decisions will probably lead to more confusion/frustration. If you do understand that, you are misrepresenting the Court's findings.”

Linda said...

@Mario Apuzzo 1:46PM

It is you who continue to move goalposts and misquote me. It is you who said "Kansas State Objections Board, Secretary of State Kris Kobach, is wrong in stating that Minor was a case only about voting rights and that its definition of a “natural-born citizen” was dicta.

I agreed that the NBC portion was dicta. That is the point of my posts at 1/2/13 12:56PM and 2:37PM; 1/4/13 11:59AM and 12:53PM.

You say above "We showed you that Wong Kim Ark, In re Lockwood, and Luria cite to and quote Minor on citizenship issues. Hence, we proved you and SOS Koback wrong." This is a bizarre statement, as I have repeatedly addressed the NBC discussion being dicta, and did not deny the citizenship discussion.

You have not been reading my posts well if you are asking me if I "concede" that the Minor decision involved citizenship. Now will you concede that its "definition" of NBC was dicta?

I whole heartedly disagree with your position that it is intellectually or in any other way dishonest to distinguish between Court's discussion of NBC in Minor and WKA.

The ruling in Minor, and the Court's discussion of citizenship its decision, in no way rely on whether Minor was NBC or a naturalized citizen. It was enough for the Court to agree/find/prove that Minor was a citizen.

The ruling in WKA is very different. WKA could not be naturalized due to the Chinese Exclusion Act. According to the Court's lengthy discussion of the history of citizenship, a US citizen is either NBC or naturalized, so WKA was either an NBC or he was not a citizen at all. The Court ruled that that he was a citizen at birth and affirmed the lower Court ruling.

There is no such thing as a "14th Amendment 'citizen of the United States'". One is either a citizen of the US, NBC or naturalized, or is not a citizen.

The Court in WKA did much more than "used" English NBS and most certainly did refer to Article II and presidential eligibility. I classify WKA as a citizenship case, not a presidential eligibility case.

No quote mining here. I read the cases.

Frank Bailey said...

Button Knows Best said...

"If Obama is not a natural born citizen, how can he be prevented from being sworn in a 2nd time? And who is going to step forward to prevent it? Our national security depends on it."

Actually nothing can stop President Obama from being inaugurated on January 21 since Congress just certified the electoral vote once again with no objections.

Despite the wrong thinking of the owner of this blog President Obama is a natural born citizen and no serious legal scholar questions that fact.

Your statement about national security being at stake is dramatic and actually rather stupid. Obama is a moderate to centrist Democrat who has arguably made our country the most secure it has been since 2001. We don't seem to be running around thinking about what color terrorism alert condition we are under every day and we are not fighting on two fronts in western Asia like we were under the last president.

My advice is to sit back and enjoy the fact that our democratic system worked and we once again elected a leader peacefully even though there was a vigorous debate. Let's celebrate that on January 21 and give the man his due since we decided by a clear majority that he deserved a second term.

Linda said...

@Mario Apuzzo 1:46PM

I had misread your statement above. You said:

"You make distinctions between “natural born Citizen” and “presidential eligibility” and use words such as “involved” and “used” to argue that Luria did not “use” “natural born Citizen” in its decision and further, that simply because Luria “used” presidential eligibility in its decision does not mean that the case “involved” presidential eligibility."

Are you actually claiming that Luria is an NBC or presidential eligibility case?

Luria? The man who was a Russian immigrant, became a naturalized citizen in July 1894 and moved to South Africa about six months later, where he remained for over 15 years, then lost his US citizenship as it was ruled fraudulently and illegally procured? That Luria?

Please explain to me how the Luria case had anything to do with NBC or presidential eligibility. The Court didn't rule on either, those were never on the table.

MichaelN said...

@ Linda, who said....

"There is no such thing as a "14th Amendment 'citizen of the United States'". One is either a citizen of the US, NBC or naturalized, or is not a citizen."

What nonsense!

One is either BORN or naturalized a US citizen.

"Amendment XIV
Section 1.

All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside. No state shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any state deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws."

There is NOTHING in the 14th Amendment about NBC.

The unanimous opinion of the SCOTUS in Minor case, agreed 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."

Linda, this was stated by the SCOTUS AFTER the adoption of the 14th Amendment.

i.e. the 14th Amendment (as a part of the USC)DOES NOT "say who shall be natural-born citizens"

Do you not understand this simple statement by the SCOTUS?

Why do you suppose the US Citizenship and Immigration Service recognizes that there are two type of born US citizens?

"The repatriation provisions of these two most recent enactments also apply to a native- and natural-born citizen woman who expatriated herself by marriage to an alien racially ineligible to citizenship....."

"The words "shall be deemed to be a citizen of the United States to the same extent as though her marriage to said alien had taken place on or after September 22, 1922", as they appeared in the 1936 and 1940 statutes, are prospective and restore the status of native-born or natural-born citizen (whichever existed prior to the loss) as of the date citizenship was reacquired."

"The effect of naturalization under the above statutes was not to erase the previous period of alienage, but to restore the person to the status if naturalized, native, or natural-born citizen, as determined by her status prior to loss."


Now why do you suppose the USCIS have come to this conclusion?

MichaelN said...

Linda said....

" I read the cases."

So you would have read this from the Wong Kim Ark case?

"Page 169 U. S. 655

In Minor v. Happersett, Chief Justice Waite, when construing, in behalf of the court, the very provision of the Fourteenth Amendment now in question, said: "The Constitution does not, in words, say who shall be natural-born citizens.
Resort must be had elsewhere to ascertain that." And he proceeded to resort to the common law as an aid in the construction of this provision. 21 Wall. 88 U. S. 167."


So what "common law" was it Linda, which held that a natural born Citizen was one born in the US to US citizen parents and that it was doubted whether native-born children to alien parents was a citizen at all?

Then did you read this, also from the WKA case?.....

"The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle."

Mario Apuzzo, Esq. said...

Linda @ 1/4/13 12:53 PM,

(1) Wong Kim Ark, In re Lockwood, and Luria were cited together to show that Minor was not only a case about voting rights, but also a case about citizenship and that Wong Kim Ark and In re Lockwood even made reference to the citizenship of the parents of a child found to be a “citizen” by birth in the United States. They were not cited to provide any definition of a “natural born Citizen.”

(2) You separate the question of whether Minor was only about voting rights from the question of whether its definition of a “natural-born citizen” is dicta. The way Kansas SOS Kobach presented his objection to Minor, he conflated both issues. I addressed the voting rights issue to show that Minor’s definition of a “natural-born citizen” is not dicta. I did not say that by showing that Minor was also a citizenship case, I had satisfied my obligation to show that Minor’s definition of a “natural-born citizen” is not dicta. Seeing that the voting rights argument is a loser for you in light of Wong Kim Ark, In re Lockwood, and Luria citing Minor for citizenship, you want to talk about whether Minor’s definition of a “natural-born citizen” is dicta and even complain that I have not addresses that issue. Besides my having fully addressed that issue in my briefs to the courts and on my blog, we can discuss that issue as you demand.

(3) Your dancing around what Wong Kim Ark stands for is disingenuous. Rather than playing with words and telling us what the case is not, just tell us what the case is and how it can be used to demonstrate that Barack Obama is an Article II “natural born Citizen.”

Linda said...

@Mario Apuzzo 1/4/13

I appreciate your willingness to discuss whether Minor's "definition" of NBC is dicta and that is what I have been trying do to. I have told you why I believe it is dicta.

I am not sure why you keep asking about WKA, but fine. As I said, WKA is a citizenship case. It is an important case in showing how Obama is indeed an NBC.

As I said before, the Court in WKA went to great lengths, discussing the history of citizenship, concluding that US citizens are either NBC or naturalized. That is it. Two options, and two options only. Natural born or naturalized. Same applies to Obama. He was born in HI, he is natural born.

Now, back to Minor, NBC and dicta...

Linda said...

@MichaelIN

Yes, I have read the cases, the Constitution and the Congressional debates regarding the 14th Amendment.

The Courts have ruled that born a citizen, at least on US soil, is NBC, with the known exceptions. The WKA decision cites some lower Courts on the issue. Off the top of my head, the newer cases have relied on those precedents.

If you know of a case where someone born on US soil, who was not one of the known exceptions, was either ruled NOT to be an NBC or was ruled to have been naturalized, I would love to read it.


Mario Apuzzo, Esq. said...

Linda @1/4/13 11:59 AM,

1. The parties in Minor conceded she was a “citizen of the United States” under the Fourteenth Amendment. The Court knew she was born in the U.S. to “citizen” parents. If she was not born to “citizen” parents, then the Court would have had to resolve the open question of whether she was a “citizen” given that she was born to alien parents. The Court said that it was not necessary to resolve that question. The Court said: “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.” So, the Court said that based on “everything we have now to consider,” it only needed to hold that “all children, born of citizen parents within the jurisdiction, are themselves citizens,” which the court earlier explained “[t]hese were natives or natural-born citizens, as distinguished from aliens or foreigners.” The Court then explained that “all children” in the common law definition of a “natural-born citizen” was, in the citizenship connection, as comprehensive as “[a]ll persons” in the Fourteenth Amendment definition of a “citizen of the United States” and that if women were included in the latter, they had to be included in the former. The Court added that the parties had conceded that women were included in “[a]ll persons.” We know that the Court concluded that Virginia Minor was a under common law a “citizen,” of the “natural-born citizen” class, or else it would not have moved forward to the second issue, i.e., whether, as a “citizen,” she was constitutionally entitled to the right to vote under Article IV and the Fourteenth Amendment. Such thoughtful attention to the question of citizenship and whether Virginia Minor was a “citizen” demonstrates that the Court’s discussion about citizenship is not dicta, but rather binding precedent. Additionally, I find it amazing that you would take the position that a landmark unanimous U.S. Supreme Court decision which for the first time in our nation’s history established that women were just as much as men “natural-born citizens” is mere dicta.

2. You said: “I disagree that whether a subject was necessary to the decision or not is "neither here nor there". That is the difference in what can make a binding precedent and what is dicta, by definition. The Court's discussion of the history of women's citizenship was necessary as part of the case presented. NBC was not.” My point about whether a subject was necessary to a court’s decision was made in the context of the Minor decision and not just as some general rule. It fits there because, even if resolving the issue of citizenship was not necessary as you argue, Minor still thoroughly discussed and analyzed it. So, we do not have the usual case of a court making a statement that is not necessary to the decision and not actually putting its attention to it by way of thorough analysis and discussion, which in the end makes the statement dicta. In other words, dicta is dicta because it is some statement that was made by the court that is not central to the court’s holding and therefore did not receive the benefit of the court’s full analysis and discussion. So, in such a situation since the court did not fully and truly analyze the issue that is the subject of its statement of dicta, the issue is still open for a later court to decide anew. In Minor, the court thoroughly analyzed and discussed the development of U.S. citizenship from the Founding to the then present, and in that discussion, defined both a “citizen” and a “natural-born citizen” under common law and citizenship also under Acts of Congress.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

You attempt to separate Minor’s discussion of women’s citizenship from its discussion of “natural-born citizen,” accepting the former as necessary, but not the latter. But given the Court’s analysis and discussion of citizenship, you cannot accept the necessity of the Court’s women’s citizenship discussion and not accept the necessity of the Court’s “natural-born citizen” discussion. Minor concluded under common law that Virginia Minor was a “citizen” by first stating what the definition of a “natural-born citizen” was. Hence, Virginia’s citizenship status cannot be separated from her “natural-born citizen” status. Under the Court’s common law definition of a “natural-born citizen,” if Virginia was not a “natural-born citizen,” given that she was not a “citizen who became so by naturalization after birth, she would have been an alien or foreigner (“These were natives or natural-born citizens, as distinguished from aliens or foreigners”). Thus, both the Court’s discussion of women’s citizenship in general and its definition of “natural-born citizen” specifically were necessary to its decision.

I am not complaining that some court’s ruled on the merits of the meaning of a “natural-born citizen” and whether Obama meets that definition. Rather, what I said is that under your test of defining dicta by the court’s necessity for deciding the matter, it was not necessary for the court to reach the Obama merits, for it could have dismissed all the cases on standing, jurisdiction, political question, or some other justiciability or procedural ground. Hence, under your test for what is dicta (a decision that is not necessary), all your merit court decisions are dicta. So, you have failed to address this point, but rather go off on what is not pertinent.

3. Yes, Minor does have two holding, one on citizenship and one on voting rights. You tell me how many holdings Wong Kim Ark has and what those holding are.

4. See my answer to No. 2 above regarding your attempt to separate Minor’s discussion of women’s citizenship from its discussion of “natural-born citizen,” accepting the former as necessary, but not the latter, and that given the Court’s analysis and discussion of citizenship, you cannot accept the necessity of the Court’s women’s citizenship discussion and but not accept the necessity of the Court’s “natural-born citizen” discussion.

Mario Apuzzo, Esq. said...

I of II

Linda @ 1/4/13 2:58 PM,

(1) The point that we started to discuss here after 4zoltan’s comment at 1/ /13 at 6:27 PM was whether Minor was only a case about voting rights. Commenters and I said that the case was also about citizenship. So, if you concede that Minor was also about citizenship and want to discuss what Minor said about citizenship, that is perfectly fine.

(2) I will in no way concede that Minor’s definition of “natural born Citizen” is dicta. Because of the question of whether Virginia Minor had a constitutional right to vote and that Article IV privileges and immunities belonged only to “citizens” which received protection under the Fourteenth Amendment, Minor saw fit to first determine whether Virginia Minor was a “citizen” followed by determining whether voting is a right that is included in those privileges and immunities. It confirmed the definition of a “natural-born citizen” in doing so. In providing that definition, it showed that any child who is born in a country to parents who are its citizens is not only a “citizen” like the parents, but also a “natural-born citizen.” It does not matter that Virginia Minor only had to be a “citizen.” The Court still defined a “natural born Citizen.” Also, under the common law, citizenship at birth by birth in the country was given only to children of “citizen” parents. While these children were “citizens,” given the definition they had to satisfy in order to inherit that birth status, they were also “natural born Citizens.” Given the Court’s addressing whether Virginia Minor was a “citizen,” it determinig that she was a “citizen” by first defining what a “natural-born citizen” was, is not dicta as to what a “natural-born citizen” is.

(3) You are rewriting our history and Constitution. You said: “‘There is no such thing as a ‘14th Amendment ‘citizen of the United States’”. One is either a citizen of the US, NBC or naturalized, or is not a citizen.” First, the last time that I looked at the Fourteenth Amendment it said in plain letters: “All person born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” Did you see that, “citizens of the United States.”

Second, a “natural born Citizen” is not defined by default , i.e., that if you are a “citizen” and not naturalized after birth, then you are a “natural born Citizen.” You have absolutely no constitutional or or other legal basis to make such an argument.

Article II, Section 1, Clause 5 provides only for two classes of U.S. “citizens,” a “natural born Citizen” and a “Citizen of the United States.” A “natural born Citizen” has a specific definition which is born in a country to parents who were its “citizens.” Any other U.S. “citizen” who is not a “natural born Citizen” is a “citizen of the United States,” either at birth or after birth. In common language, we have inartfully referred to those persons who become U.S. citizens after birth as “naturalized citizens.” But this does not mean that those who are U.S. citizens at birth are automatically to be considered “natural born Citizens,” for the question always remains whether they satisfied the definition of a “natural born Citizen” in order to acquire that birth status. If they did not satisfy that definition, then they cannot be “natural born Citizens,” and rather are simply “citizens of the United States” at birth under either the Fourteenth Amendment or an Act of Congress.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

(4) That the Court in Wong Kim Ark rather than Congress made Wong a “citizen of the United States” at birth by virtue of the Fourteenth Amendment rather than American common law does not convert Wong into a “natural born Citizen.” Rather, if Wong wanted to be a “natural born Citizen,” then he had to show that he satisfied the American common law definition of one. In Calvin’s Case, with Calvin being born in Scotland to non-English parents, Lord Coke naturalized Calvin at birth and declared him to be a “natural born subject” of England. Vattel in Section 214 of The Law of Nations acknowledged naturalization at birth when he said: “Finally, there are states, as, for instance, England, where the single circumstances of being born in the country naturalises the children of a foreigner.” Hence, Vattel explained that without citizen parents, a child born in the country to alien parents who is considered a citizen from birth is in reality naturalized at birth. See also, Wong Kim Ark and Bellei which both discuss naturalization at birth.

In the U.S., as is evidenced by American common law and confirmed by the Naturalization Acts of 1790, 1795, 1802, and 1855, we did not follow the English common law model for making “natural born Citizens.” Rather, we have always required that the child be born in the country to parents who were its citizens. Any other person, considered a U.S. “citizen” at birth, became so under the Fourteenth Amendment or Act of Congress, which in essence provide for naturalization at birth.

(5) You said: “I classify WKA as a citizenship case, not a presidential eligibility case.” I agree. It is a case about whether Wong was a “citizen of the United States” at birth under the Fourteenth Amendment, not whether he was a “natural born Citizen” under Article II which would also have made him eligible to be President.

Mario Apuzzo, Esq. said...

Linda @ 1/4/13 3:48 PM,

See Luria v. United States, 231 U.S. 9, 24 (1913) ("Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827").

Hence, Luria told us that Minor was a precedent on citizenship and presidential eligibility.

Mario Apuzzo, Esq. said...

Linda @1/4/13 6:44 PM,

You said: “I am not sure why you keep asking about WKA, but fine. As I said, WKA is a citizenship case. It is an important case in showing how Obama is indeed an NBC.

As I said before, the Court in WKA went to great lengths, discussing the history of citizenship, concluding that US citizens are either NBC or naturalized. That is it. Two options, and two options only. Natural born or naturalized. Same applies to Obama. He was born in HI, he is natural born.”

You try to give the impression that Wong Kim Ark really is no big deal. It only established that Obama is a “natural born Citizen.” Who do you think you are kidding with your camouflaged smugness?

Show us how Wong Kim Ark demonstrated that Obama is a “natural born Citizen.”

Show us where Wong Kim Ark concluded that “US citizens are either NBC or naturalized. That is it. Two options, and two options only. Natural born or naturalized.”

ksdb said...

@Linda, you're being obtuse. Luria specifically cites presidential eligibility. You gave the quote voluntarily, and now you're making a ridiculous argument that it only uses the words but isn't recognizing the precedent. If that were true, then they wouldn't bother to list the court cases.

But, if you want to argue like that, then you have to admit that WKA does NOT define NBC by simple birth on U.S. soil as you seem to want to believe. WKA wasn't about presidential eligibility and it wasn't about natural-born citizenship (except where it affirmed the Minor definition which it could not apply to Ark). Of course, there are several other ways that it also affirms the Minor definition of NBC, but the point here is that your argument against Luria is self-contradictory. What other part of presidential eligibility would Luria be talking about if not the citizenship requirement?? Why does it list Minor and NOT WKA?? Why does it talk about presidential eligibility if the case is irrelevant??

Mario Apuzzo, Esq. said...

Linda @1/4/13 7:38 PM,

You said: “If you know of a case where someone born on US soil, who was not one of the known exceptions, was either ruled NOT to be an NBC or was ruled to have been naturalized, I would love to read it.”

You have it wrong. We do not prove one’s citizenship status by showing that a court did not disqualify one’s particular circumstances from being eligible for that status in any one decision. Rather, we prove one’s citizenship status by demonstrating what Congress or a court has established as the requirements for that status and then further showing that one meets those requirements. Congress does not have constitutional power to define a “natural born Citizen,” for to do so would be going beyond its naturalization powers and be tantamount to amending the Constitution (adding to its powers and changing the presidential eligibility requirements) without constitutional amendment. We know that Minor said that at common law with which the Framers were familiar a child born in a country to parents who were its citizens is a “natural-born citizen.” I am not aware of our U.S. Supreme Court ever giving any other definition of a “natural-born Citizen.” Hence, given Obama’s birth circumstances, i.e., born in the U.S. (only an assumption) to a father who was not a U.S. citizen, what you need to find for us is a case by the U.S. Supreme Court that ruled that a child born in the United States to an alien father is not only a “citizen of the United States” under the Fourteenth Amendment or some other law, if that is one of its findings, but also an Article II “natural born Citizen.” Please provide the case.


davidfarrar said...

As it is important to object for the record in court, it is also important to object 'for the historical record'.

I congratulate you, and thank you for the work you have done in this noble case.

I will also send a copy of your work to my Congressional delegation and ask them to 'object, for the record' as to the qualifications of Mr. Barack H. Obama to take the oath of office of the President of the United States for the reasons you have cited, and ask others to do the same.

ex animo
davidfarrar

davidfarrar said...

As it is important to object for the record in court, it is also important to object 'for the historical record'.

I congratulate you, and thank you for the work you have done in this noble case.

I will also send a copy of your work to my Congressional delegation and ask them to 'object, for the record' as to the qualifications of Mr. Barack H. Obama to take the oath of office of the President of the United States for the reasons you have cited, and ask others to do the same.

ex animo
davidfarrar

Linda said...

@Mario Apuzzo 1/5/13 12:03AM

Perhaps I still have some posts in moderation or it is the delay, but messages are being confused.

In your post, time noted above, you said:

"You try to give the impression that Wong Kim Ark really is no big deal. It only established that Obama is a “natural born Citizen.” Who do you think you are kidding with your camouflaged smugness?

Show us how Wong Kim Ark demonstrated that Obama is a “natural born Citizen.”

Show us where Wong Kim Ark concluded that “US citizens are either NBC or naturalized. That is it. Two options, and two options only. Natural born or naturalized.”

That was in response to my 1/4/13 6:44PM post, in which I was repeating, per your request, why I thought WKA applied to Obama eligibility. I don't know what you think was smug about it. I had already responded to that at 1/4/13 2:58.

"The Fourteenth Amendment of the Constitution, in the declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," contemplates two sources of citizenship, and two only: birth and naturalization."
US v WKA, 169 US 702

Linda said...

@Mario Apuzzo 1/5/13 12:33AM

There are cases, such a Minor and WKA, where a person has sued in order to exercise their citizenship rights.

That is what I am asking. If you know of a case where a person, born in the US, to parents who weren't diplomats or invaders, etc., sued to exercise their citizenship rights and they were refused? For example, has someone fought deportation, claiming they were born in the US, but Court claimed they should have been naturalized, etc.

I have do not know of any cases where a person was expressly ruled an "Article II natural born citizen". Do you?

Linda said...

@ksdb 1/5/13 12:18AM

Have you read the Luria decision?

Luria? The Russian immigrant, who became a naturalized citizen in July 1894 and moved to South Africa about six months later, where he remained for over 15 years, and then lost his US citizenship as it was ruled fraudulently and illegally procured? That Luria?

If you believe that is a presidential eligibility case, more power to you, but I would prefer not to discuss it further.

Linda said...

@Mario Apuzzo 1/4/13 11:49PM

You said "Hence, Luria told us that Minor was precedent on citizenship and presidential eligibility."

Did you cite it in support of your position in pleadings/motions/briefs, etc., filed in connection with the Obama eligibility cases you have been involved with?

I have read them, but it has been some time ago and it is too late for me now. I do not recall the reference.

Linda said...

@Mario Apuzzo

Gee, Mario. I arrive home, and am slogging through these posts newest to oldest, trying to respond, but I am not seeing anything about Minor and whether the discussion of NBC was dicta. I thought you were willing to discuss that.

at 1/4/13 6:11PM you stated:

"(2) You separate the question of whether Minor was only about voting rights from the question of whether its definition of a “natural-born citizen” is dicta. .....Besides my having fully addressed that issue in my briefs to the courts and on my blog, we can discuss that issue as you demand."

Why do you keep asking me about WKA and other cases? I am not saying they aren't important, but why ask me? Are you not willing to discuss with me whether NBC in Minor was dicta?

MichaelN said...

Linda said .....

"As I said before, the Court in WKA went to great lengths, discussing the history of citizenship, concluding that US citizens are either NBC or naturalized. That is it. Two options, and two options only. Natural born or naturalized. Same applies to Obama. He was born in HI, he is natural born."

These are the only two METHODS to US citizenship, i.e. native born and naturalized.

Born a US citizen is actually per three methods, one via being born off-shore to parents of US citizenship, two, per native-birth in US, and of course both of these qualities together. (the latter having no constitution nor statute necessary to establish the entity)

The US Citizenship and Immigration Service agrees that there are at least TWO types of born US citizens, i.e. native and natural(as I showed you in my recent post)

The first US naturalization act of 1790 (PRE 14th Amendment), shows that the children born of aliens, who were born either within or without the USA, were considered as aliens, just like their alien parents and these children, if under 21 years of age, were automatically naturalized when their parents naturalized and NOT BEFORE.

So as you can see Linda, the METHOD of establishing birthright US citizenship has within it, multiple and various essential qualities/paths to reach the same end, i.e. US citizenship by birth.

You seem to have a problem with grasping the fact that being a born citizen is a RESULT and not a means.

"Natural born Citizen" is not a means.

It is a "natural" state of being in the context of aspiring to only have the most perfect citizen imaginable, (unalterable by any mans law) for eligibility for the highest office of the republic.

SCOTUS in the Minor case recognized who were US "NBC" WITHOUT resort to the 14th Amendment or any other part of the US Constitution.

Yet the "common law" the SCOTUS in Minor referred to, could not have been solely derived from English common law, due to the FACT that the SCOTUS itself, without any prompting, introduced the mention of doubts as to the citizenship of children born native but to NON-citizen parents and furthermore, the SCOTUS saw MERIT in the doubts by virtue of stating that the doubts were STILL YET to be solved.

Do you get it?

Born citizens, include those who were native born only, those who were born offshore to US citizen parents AND those who were born BOTH native to US AND to US citizens.

Ergo: NOT all born citizens are NBC.

Notice that the later US naturalization act of 1795 had removed from it "natural born" from the description of non-native BORN US citizens.

Notice that the first naturalization act of 1790 used the term "natural born citizen" ONLY BECAUSE of the PARENTS citizen status, with NOTHING about native birth at all.

Linda, basically, as you can see there are at least TWO methods to being born citizens, i.e. native born and non-native born but to US citizen parents.

Why do you deny the third method of establishing a born US citizen?


Linda said...

@Mario Apuzzo

"Additionally, I find it amazing that you would take the position that a landmark unanimous U.S. Supreme Court decision which for the first time in our nation’s history established that women were just as much as men “natural-born citizens” is mere dicta."

You are misquoting me again. I NEVER said that. I said that the NBC "definition" in Minor is dicta.

Linda said...

@Mario Apuzzo, 1/4/13 11:17PM

Okay, great, think I found it. Thank you.

Part I

You said: "1. The parties in Minor conceded she was a “citizen of the United States” under the Fourteenth Amendment. The Court knew she was born in the U.S. to “citizen” parents. If she was not born to “citizen” parents, then the Court would have had to resolve the open question of whether she was a “citizen” given that she was born to alien parents....."

The Chief Justice began by basically saying the question presented was since the 14th Amend., whether a women who is a citizen of the US, is a voter. The argument posed by Minor was that a woman, born or naturalized in the US is a citizen and has the right to vote. The Chief Justice said that women are clearly citizens under the 14th Amend., as "all persons born or naturalized In the United States" and went on to add that women had been citizens prior to the adoption of the Amend. After establishing that Minor was citizen, the Chief Justice then went into the citizenship history.

A naturalized citizen is entitled to vote and is entitled to the Article IV privileges and immunities of the 14th Amend. The Court had already said Minor was a citizen and it did not need to "define" NBC to determine that or her voting rights.

It made no difference whether Minor was a born a citizen or naturalized. That is why the discussion of NBC in particular was dicta. It does not mean that the entirety of the citizenship discussion wasn't well reasoned, but the NBC "definition" section was clearly not required to reach the ruling.

Linda said...

@Mario Apuzzo (cont.)

Part II

Again, let me try to be more clear. I understand what the 14th Amendment says. I know it says "all persons born or naturalized.....are citizens of the United States...) What I am trying to explain is that there is not category of citizen called "14th Amendment citizen". Citizens are born or naturalized, there is no statute I am aware of that applies only to "14th Amendment citizens". To my knowledge, the only distinction in US citizenship is that naturalized citizens are not eligible for the presidency.

Here is what Minor has to say "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."



Linda said...

@Mario Apuzzo (cont)

Part III

You said "In the U.S., as is evidenced by American common law and confirmed by the Naturalization Acts of 1790, 1795, 1802, and 1855, we did not follow the English common law model for making “natural born Citizens.” Rather, we have always required that the child be born in the country to parents who were its citizens. Any other person, considered a U.S. “citizen” at birth, became so under the Fourteenth Amendment or Act of Congress, which in essence provide for naturalization at birth."

Here is a longer quote from WKA:

"The Fourteenth Amendment of the Constitution, in the declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside," contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case
Page 169 U. S. 703 of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."

Linda said...

@Mario Apuzzo (cont.)

Part IV

You said "5) ... It is a case about whether Wong was a “citizen of the United States” at birth under the Fourteenth Amendment, not whether he was a “natural born Citizen” under Article II which would also have made him eligible to be President.

I disagree with you there. The Court in WKA went into great detail on the history of citizenship, vital to the ruling. Since WKA could not be naturalized, if the Court found that he was a citizen, it had to be a NBC. WKA was not running for president, but NBC is one of the requirements.

Linda said...

@MichaelIN

You mischaracterized or misunderstood the 1790 Naturalization Act. You said: "The first US naturalization act of 1790 (PRE 14th Amendment), shows that the children born of aliens, who were born either within or without the USA, were considered as aliens, just like their alien parents and these children, if under 21 years of age, were automatically naturalized when their parents naturalized and NOT BEFORE."
(emphasis mine)


What the 1790 act actually said is:

"...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."
(emphasis mine)

The 1790 Act simply states that when a person naturalizes, their children (who are under the age of 21 and living in the US at the time of the parent's naturalization), shall also be considered citizens.

Where do you get "who were born either within or without the USA"?

You stated: "Notice that the first naturalization act of 1790 used the term "natural born citizen" ONLY BECAUSE of the PARENTS citizen status, with NOTHING about native birth at all."

Of, course. The 1790 Act says "...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:"

First, the Act does not address native birth at all. Children born outside of the US would only be considered US citizens if their parents are citizens.

Children born in the US need no naturalization. See WKA:

"The Fourteenth Amendment of the Constitution, in the declaration that "all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside, "contemplates two sources of citizenship, and two only: birth and naturalization. Citizenship by naturalization can only be acquired by naturalization under the authority and in the forms of law. But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. A person born out of the jurisdiction of the United States can only become a citizen by being naturalized, either by treaty, as in the case
Page 169 U. S. 703
of the annexation of foreign territory, or by authority of Congress, exercised either by declaring certain classes of persons to be citizens, as in the enactments conferring citizenship upon foreign-born children of citizens, or by enabling foreigners individually to become citizens by proceedings in the judicial tribunals, as in the ordinary provisions of the naturalization acts."
(emphasis mine)

MichaelN said...

Linda said .....
"What the 1790 act actually said is:

"...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."
(emphasis mine)

The 1790 Act simply states that when a person naturalizes, their children (who are under the age of 21 and living in the US at the time of the parent's naturalization), shall also be considered citizens.

Where do you get "who were born either within or without the USA"?"


Same place you get the notion that the particular part of the 1790 act is only referring to children born off-shore.

If the 1790 act didn't specify that the children it was referring only to those children who were born off-shore, then the 1790 act was referring to all children of aliens.

Here it is.... (pre 14th)

"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."

There is no exclusion for the children of aliens who were born in US, i.e. they were born aliens, just like their alien parents and only naturalized (if under 21)at the same time as their parents.

As an aside, Where do you get "Article II natural born Citizen" from this?

"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

Order affirmed."


Oh, and as I have asked before, what "common law" do you suppose the SCOTUS in the Minor court was referring to, when the SCOTUS INTRODUCED without any submission by the parties, the mention of doubts as to whether a native-born child to alien parents was a US citizen, and further that the SCOTUS gave MERIT to the doubts by stating that the doubts were yet to be solved?

Linda you keep avoiding to answer this question.

Why is that?



MichaelN said...

@ Linda

What about this, from the WKA case, why do you suppose was the term "natural born citizen" not used?

"That, in the year 1890 the said Wong Kim Ark departed for China upon a temporary visit and with the intention of returning to the United States, and did return thereto on July 26, 1890, on the steamship Gaelic, and was permitted to enter the United States by the collector of customs upon the sole ground that he was a native-born citizen of the United States."

MichaelN said...

@ Linda, who said ....

"You stated: "Notice that the first naturalization act of 1790 used the term "natural born citizen" ONLY BECAUSE of the PARENTS citizen status, with NOTHING about native birth at all."

Of, course. The 1790 Act says "...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:"

First, the Act does not address native birth at all. Children born outside of the US would only be considered US citizens if their parents are citizens.

Children born in the US need no naturalization. See WKA:"


The 1790 act does not exclude native-born children from its scope.

If I say oranges are orange in colour, then I mean ALL oranges.

If the 1790 act says "the children of such person so naturalized, dwelling within the United States..."

It means ALL "the children".

This act of 1790 was BEFORE 14th Amendment, at a time when children born in US to aliens were themselves aliens, so there is no need to see WKA on this matter.

MichaelN said...

More from the WKA case...

"In McCreery v. Somerville, (1824) 9 Wheat. 354, which concerned the title to land in the State of Maryland, it was assumed that children born in that State of an alien who was still living, and who had not been naturalized, were "native-born citizens of the

Page 169 U. S. 662

United States," "


Now why did the court not say "natural born citizen"?

Linda, you still haven't addressed this, from the WKA case.

"The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. "

Mario Apuzzo, Esq. said...

Linda @1/5/13 2:13 AM,

I asked you to “s]how us where Wong Kim Ark concluded that ‘US citizens are either NBC or naturalized. That is it. Two options, and two options only. Natural born or naturalized.’”

In response to my question, you quote: "‘The Fourteenth Amendment of the Constitution, in the declaration that ‘all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside,’ contemplates two sources of citizenship, and two only: birth and naturalization.’ US v WKA, 169 US 702.”

Citing and quoting Wong Kim Ark, it appears that you argue that citizenship has it source either in birth or naturalization. From there you argue that if one is a citizen not from naturalization, then it must be from birth. You then conclude that therefore since one is a citizen from birth and not naturalized, one is a “natural born Citizen.” This argument is fallacious.

Your first logical error lies in how you interpret and apply the word “birth.” First, Wong Kim Ark used “birth” within the context of the Fourteenth Amendment. It did not use the word in the context of defining a “natural born Citizen.” Under the Fourteenth Amendment, one who becomes a “citizen” by way of “birth” in the United States becomes a “citizen of the United States,” at birth, not an Article II “natural born Citizen.” Second, under our Constitution and Acts of Congress, citizenship at “birth” comes in different classes. For children born in the United States, there is a “natural born Citizen,” who acquires such citizenship status by meeting specific conditions at the moment of “birth” (“birth” in the country to citizen parents) and there is a “citizen of the United States” at “birth” who acquires such citizenship status by meeting specific conditions also at the moment of “birth” (“birth” in the United States and “subject to the jurisdiction thereof”). For those born out of the United States, there is a “citizen of the United States” who acquires such citizenship status by meeting specific conditions also at the moment of “birth” (“birth” out of the United States to one or two U.S. citizen parents). As you can see, “birth” alone only tells us of the time at which one acquires a given class of U.S. citizenship, not the class of citizenship that one acquires at that time. Citizenship at “birth” can be “natural born Citizenship,” but not necessarily. So “birth or naturalization” does not necessarily equate to “natural born or naturalization.”

Your second logical error lies in how you use “naturalization.” You want us to accept that any U.S. “citizen” who is not “naturalized” is necessarily a “natural born Citizen.” Again, I have shown above how a “citizen” “at birth,” which means that no naturalization after birth was necessary to acquire that status, is not necessarily a “natural born Citizen.” Even Wong Kim Ark and Bellei inform that any type of citizenship acquired at “birth” under a Congressional Act is nevertheless naturalization at birth. Hence, under your test for being a “natural born Citizen,” i.e., birth or naturalization, that person, while a U.S. citizen at “birth,” would still not be a “natural born Citizen.” So, simply showing that one is a “citizen,” not by being naturalized after birth, does not prove that one is a “natural born Citizen.”

MichaelN said...

More from the Wong Kim Ark case...

"Mr. Justice Miller, indeed, while discussing the causes which led to the adoption of the Fourteenth Amendment, made this remark:

"The phrase, 'subject to its jurisdiction' was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States."

Linda said...

@MichaelIN

You asked "What about this, from the WKA case, why do you suppose was the term "natural born citizen" not used?

"That, in the year 1890 the said Wong Kim Ark departed for China upon a temporary visit and with the intention of returning to the United States, and did return thereto on July 26, 1890, on the steamship Gaelic, and was permitted to enter the United States by the collector of customs upon the sole ground that he was a native-born citizen of the United States."

The same reason the Court in Minor and others used native, natural and just plain citizen. Because unless you are talking about presidential eligibility, it doesn't make any difference.

"In that sense, women, if born of citizen parents within the jurisdiction of the United States, have always been considered citizens of the United states, as much so before the adoption of the Fourteenth Amendment to the Constitution as since.

"All persons born or naturalized in the United States, and subject to the jurisdiction thereof are citizens of the United States and of the state wherein they reside."

"Mrs. Virginia Minor, a native-born free white citizen..."

"The question is presented in this case whether, since the adoption of the Fourteenth Amendment, a woman who is a citizenof the United States

"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."

"It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens."

"From this it is apparent that from the commencement of the legislation upon this subject, alien women and alien minors could be made citizens by naturalization, and we think it will not be contended that this would have been done if it had not been supposed that native women and native minors were already citizensby birth."

(all emphasis added)

There are more examples, but you see what I mean.

davidfarrar said...

I always thought there was a bright-line between a natural born citizen of a state and an Art. II, §1, cl. 4 natural born U.S. Citizen?

A born citizen of a state requires residency and borders, whereas a born U.S. Citizen requires only the inherited allegiance of the father's citizenship.

Since the 1922 Married Women's Act allowed allegiance to follow the mother for the first time, in order to avoid dual allegiances at birth, both parents must be U.S. citizens of an Art. II, §1, cl. 4 natural born U.S. Citizen.

ex animo
davidfarrar

davidfarrar said...

There are only two ways to become a U.S. citizen: by natural law and by posited law.
.", means subject 'solely' to U.S. jurisdiction at birth. Whereas as a native born person cannot be subject solely to U.S. jurisdiction at birth, and, therefore, cannot be a U.S. citizen at birth, accept by an amity treaty.

ex animo
davidfarrar

Mario Apuzzo, Esq. said...

Linda @1/5/2013 2:42 AM,

(1) You said: “That is what I am asking. If you know of a case where a person, born in the US, to parents who weren't diplomats or invaders, etc., sued to exercise their citizenship rights and they were refused? For example, has someone fought deportation, claiming they were born in the US, but Court claimed they should have been naturalized, etc.”

You continue with your fallacious reasoning. There is plenty of historical, Congressional, and U.S. Supreme Court evidence that confirms that a “natural born Citizen” is a child born in a country to parents who were its “citizens.” This evidence does not evaporate because there might not be any case which decides some other point of citizenship. In any event, take a look at the James McClure Case, decided in 1811 by the James Madison Administration. I have written on this case in my court briefs and on this blog.

(2) You said: “I have do not know of any cases where a person was expressly ruled an "Article II natural born citizen". Do you?”

Are you trying to get cute with your quotation marks? Is “natural born Citizen” found in any part of the Constitution other than Article II? Moving on to your question, in Perkins v Elg 307 U. S. 325 (1939), the U.S. Supreme Court affirmed the lower court’s ruling that Elg was a “natural born citizen.” She was born in the United States to parents who were “citizens of the United States” by naturalization after birth.

juniper55 said...

The vote tally was yesterday in a joint session of Congress. Here is the video link, it's about 27 minutes.

http://www.c-span.org/Events/Joint-Session-of-Congress-Formally-Certifies-Pres-Obamas-Re-Election/10737436977-1/

NO ONE RAISED ANY OBJECTION.

Gee, there were attempts at least for the two Bush elections - see Wikipedia listing at this link:

http://en.wikipedia.org/wiki/Electoral_College_(United_States)

Regarding Bush, at least the Dems had some fortitude for trying!

You mean to tell me that not a single Congressman in 435 would even make an attempt to challenge Obama's NBC status at the very least to stop the headlong dash over the fiscal cliff as he spends more money than every previous administration combined??

Not even a squeak about his increasingly blatant challenge of the Constitution, even the ones he agreed with Bush on (where are those Dems now, they are loving warrantless wiretapping now that Obama is doing it)?

(can't think of too many Senators who would either)

Sorry, folks, I'm out of ideas.

Whoever came up with checks and balances forgot one important component - the power of ENFORCEMENT and the means to PUNISH the branch of government negligent in its duty to uphold and defend the Constitution against all enemies foreign and DOMESTIC.

Mario Apuzzo, Esq. said...

Linda @1/5/2013 2:58 AM,

Your straw man treatment of the Luria decision is well noted. No one ever argued that it was a “presidential eligibility case.” Rather, what we said, in response to the Obot charge that Minor is only about voting rights, is that Luria recognized Minor as relevant to citizenship and presidential eligibility. See Luria v. United States, 231 U.S. 9, 24 (1913) ("Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; Osborn v. Bank of United States, 9Wheat. 738, 22 U. S. 827").

Hence, Luria told us that Minor was a precedent on citizenship and presidential eligibility.

Mario Apuzzo, Esq. said...

Linda @1/5/2013 3:13 AM,

You question my prior use of the Luria decision. First, there is a limit to how many pages are contained in a brief. It is not possible to cite and discuss every authority that may apply to any given point. Second, in response on this blog to commenter BrianH, here is what I said about the Luria decision:

(2) You quote Luria v. U.S., 231 U.S. 9 (1913):

"Under the Constitution of the United States, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827."

But note that Luria cited to Minor and not to Wong Kim Ark on the question of presidential eligibility. The simple reason is that Minor confirmed the meaning of a “natural-born citizen,” which is the presidential standard, and Wong Kim Ark construed the Fourteenth Amendment which has nothing directly to do with presidential eligibility. Also, since Luria said “native citizen” and cited to Minor, it could only have meant that a “native citizen,” as it used the term, meant a “natural-born citizen” which Minor defined as a child born in a country to “citizen” parents. The term “native citizen” could mean nothing else, for Minor defined no other native “citizen” from the post-revolutionary period other than a “natural-born citizen” and said it meant a child born in a country to “citizen” parents. Luria’s citing of Minor on presidential citizenship also totally destroys the Obot’s disingenuous argument that Minor was a case only about women’s voting rights.

Finally, if there is any doubt as to the meaning of a “native citizen,” the matter was very well cleared up by Schneider which told us that only a “natural born Citizen” can be president: "We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the "natural born" citizen is eligible to be President. Art. II,§ 1. Schneider v. Rusk, 377 US 163, 165 (1964)
July 5, 2012 6:59 PM , Mario Apuzzo, Purpura and Moran File Petition for Certification With the NJ Supreme Court in Obama NJ Ballot Challenge, at http://puzo1.blogspot.com/2012/07/purpura-and-moran-file-petition-for.html .

So what is your point, Linda?

Mario Apuzzo, Esq. said...

Linda @1/5/2013 3:20 AM,

With reference to the Luria case, you said that you read all my pleadings/motions/briefs, etc.” I’m sure you can find there my arguments on why Minor’s definition of a “natural-born citizen’ is not dicta. I have also written at length on Minor at this blog. Restate your argument which supports your position that Minor’s definition of a “natural born Citizen” is dicta and if I see anything that is new, I will respond.

Mario Apuzzo, Esq. said...

Linda @1/5/2013 3:28 AM,

I said” "Additionally, I find it amazing that you would take the position that a landmark unanimous U.S. Supreme Court decision which for the first time in our nation’s history established that women were just as much as men “natural-born citizens” is mere dicta."

You said: “You are misquoting me again. I NEVER said that. I said that the NBC "definition" in Minor is dicta.”

Yes, and Minor applied the common law definition of a “natural-born citizen” that you say is dicta to find that Virginia Minor was a “citizen.” So, you are still saying that the Court's finding that Virginia Minor was a "citizen" is dicta.

Mario Apuzzo, Esq. said...

Linda @1/5/2013 4:50 AM,

You insist that Minor could have just decided that Virginia Minor was a “citizen” without confirming what a “natural-born citizen” was. Therefore its discussion on the meaning of a “natural-born citizen” was dicta.

You still miss the point that Minor informs that at common law with which the Framers were familiar, only if one was a “natural-born citizen” could one be a “citizen” at birth through birth in the country. Given the definition of a “natural-born citizen,” this meant that one had to be born not only in the country, but also born to parents who were “citizens” of that country. Being born under such circumstance made one not only a “citizen” like one’s parents, but also a “natural-born citizen.” If one was not born under such circumstances, one was an alien or foreigner. We can see by the Court’s discussion of citizenship that it distinguished between being just a “citizen” and being a “natural-born citizen.” Note also that the Court made no mention of the English common law parents who were military diplomats or military invaders exception to birthright citizenship because the English common law was not relevant to its discussion of what was a “citizen” or “natural-born citizen.”

With this reality, Minor first gave us the definition of a “natural-born citizen,” stating that those persons were “citizens” like their parents, and adding that they were not only “citizens,” but also “natural-born citizens.” Since Virginia Minor was born in the United States to “citizen” parents, she was not only a “citizen” like her parents, but also a “natural-born citizen.”

Since the Court saw fit to demonstrate through historical development, common law, Congressional acts, and government practice that Virginia Minor was a “citizen,” and since it had to first define a “natural born citizen” to tell us who at common law were the “citizens” through birth in the country, its discussion of the definition of a “natural-born citizen” is not dicta.

Mario Apuzzo, Esq. said...

H.J.Res. 15: Proposing an amendment to the Constitution of the United States to repeal the twenty-second article of amendment, thereby removing the limitation on the number of terms an individual may serve as President.

Introduced:
Jan 04, 2013 (113th Congress, 2013–2015)
Sponsor:
Rep. José Serrano [D-NY15]
Status:
Referred to Committee

http://www.govtrack.us/congress/bills/113/hjres15 .

Govtrack.us says that “[t]he text of this bill is not yet available. Please check back soon.”

So, not only do we have a De Facto President of the United States, but now it seems that Rep. Jose Serrano also wants to make him so for life.

James said...

Vice President Joe Biden BREAKS Federal Law to certify himself and Obama as winners of the 2012 election. http://www.law.cornell.edu/uscode/text/3/15
"...Upon such reading of any such certificate or paper, the President of the Senate shall call for objections, if any. Every objection shall be made in writing, and shall state clearly and concisely, and without argument, the ground thereof, and shall be signed by at least one Senator and one Member of the House of Representatives before the same shall be received."
Watching the Joint of Congress, Biden FAILED to call for Objections OR acknowledge that there were no objections. In every Joint Session as far back as 1989, the Vice President has either called for objections or has acknowledged that there are no objections. Biden did neither.

Linda said...

@MichaelIN

You asked: "Linda, you still haven't addressed this, from the WKA case.

"The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle."


It says the child of an alien, born in the country, is the same as a child of a citizen, and by the same principle.

Mario Apuzzo, Esq. said...

Linda @1/5/2013 5:10 AM,

You said: “To my knowledge, the only distinction in US citizenship is that naturalized citizens are not eligible for the presidency.”

Your argument commits the fallacy of Affirming the Consequent. Here is your argument:

A “natural born Citizen” is “citizen” who was not naturalized after birth.

Barack Obama is a “citizen” who was not naturalized after birth.

Therefore Barack Obama is a “natural born Citizen.”

The fallacy lies in the fact that just being a “citizen” who was not naturalized after birth does not qualify one as a “natural born Citizen,” because the definition of a “natural born Citizen” is a child born in the country to parents who were its “citizens.” Only by satisfying these necessary and sufficient conditions does one demonstrate that one is a “natural born Citizen.” So, one can be a Fourteenth Amendment “citizen of the United States” who was not naturalized after birth, by being born in the United States to one or two domiciled and resident alien parents, but still not be a “natural born Citizen.”

Mario Apuzzo, Esq. said...

Linda @1/6/13 12:49 AM

MichaelN asked you to address the meaning of this quote from Wong Kim Ark:

"The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle."

This is your answer: “It says the child of an alien, born in the country, is the same as a child of a citizen, and by the same principle.”

Again more fallacious logic from you. You fail to understand that you cannot replace the word “citizen” with the word “same.” For example, if I said that a Ford is as much an automobile as a Mercedes because they are both motor operated, I cannot replace the word “automobile” with the word “same,” for to do so would convert the statement to say that a Ford is the same as a Mercedes because they are both motor operated, which we know to be false.

Rather, what Justice Gray in Wong Kim Ark said was that while both the child of an alien who is born in the country and the child of a citizen who is born in the country are both “citizens,” by virtue of being born in the country, only the latter child is a “natural born Citizen.”

Linda said...

@MichaelIN

You have asked many questions, I am trying to get to them. I wanted to discuss NBC and Minor, whether the "definition" was dicta. Why you and others want to know what I think about other cases is beyond me.

"As an aside, Where do you get "Article II natural born Citizen" from this?

"The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties were to present for determination the single question stated at the beginning of this opinion, namely, whether a child born in the United States, of parent of Chinese descent, who, at the time of his birth, are subjects of the Emperor of China, but have a permanent domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.

Order affirmed."

1st, I don't get the "Article II natural born Citizen", quoted with the C in citizen capitalized. A person is either an NBC or not. I see no need to add Article II, change capitalization and add quotes around it.

2nd, like I have said many times on this thread, the Court in WKA went to great lengths, explaining the history of citizenship. WKA could not be naturalized due to the Chinese Exclusion act. So according to the Court's discussion, If ruled a citizen WKA had to be a NBC.


"Oh, and as I have asked before, what "common law" do you suppose the SCOTUS in the Minor court was referring to, when the SCOTUS INTRODUCED without any submission by the parties, the mention of doubts as to whether a native-born child to alien parents was a US citizen, and further that the SCOTUS gave MERIT to the doubts by stating that the doubts were yet to be solved?

Linda you keep avoiding to answer this question.

Why is that?

It is difficult for me to answer this, because I think most everything in the question is wrong, but since you want an anser, I will ignore the rest of the paragraph and just address the common law issue.

The common law familiar to the founders and framers was the English common law. It was the only law in the American Colonies, up to the time of the Declaration. Most of the founding fathers were lawyers.


Linda said...

@MichaelIN

This act of 1790 was BEFORE 14th Amendment, at a time when children born in US to aliens were themselves aliens, so there is no need to see WKA on this matter.

You don't naturalize citizens. If the children were born in the US, they would be citizens, hence no naturalization. I know the 1790 was before the 14th Amend. It has some info about the Amendment and I do not have the energy to go tracking down other cites for you. The are other cases that say the 14th Amendment was intended to be a declaration of existing law.

Linda said...

@Mario Apuzzo 1/5/13 9:54PM
You said:
(2) You said: “I have do not know of any cases where a person was expressly ruled an "Article II natural born citizen". Do you?”

Are you trying to get cute with your quotation marks? Is “natural born Citizen” found in any part of the Constitution other than Article II? Moving on to your question, in Perkins v Elg 307 U. S. 325 (1939), the U.S. Supreme Court affirmed the lower court’s ruling that Elg was a “natural born citizen.” She was born in the United States to parents who were “citizens of the United States” by naturalization after birth.

You told me earlier "... what you need to find for us is a case by the U.S. Supreme Court that ruled that a child born in the United States to an alien father is not only a “citizen of the United States” under the Fourteenth Amendment or some other law, if that is one of its findings, but also an Article II “natural born Citizen.” Please provide the case.

I am not try to be cute. I passed cute decades ago. What I am trying to do is answer your question. First, in your question to me you used quotes and different capitalization and I do not understand why you refer to an "Article II natural born Citizen". NBC is NBC, right? If you accept that the Court ruled Elg an NBC, by just saying that, no Article II in front of it or by capitalizing citizen, why do you insist on doing it?

Linda said...

@Mario Apuzzo 1/5/13 12:03AM

You said:

"You try to give the impression that Wong Kim Ark really is no big deal. It only established that Obama is a “natural born Citizen.” Who do you think you are kidding with your camouflaged smugness?"


You misunderstand. I think WKA is a very important case and that it does support that Obama is NBC. What I don't understand is why you keep asking me about it. I want to talk to you the the claimed NBC definition in Minor, not all these other cases.

Linda said...

@Mr. Apuzzo 1/5/13 5:08PM

You said "....Under the Fourteenth Amendment, one who becomes a “citizen” by way of “birth” in the United States becomes a “citizen of the United States,” at birth, not an Article II “natural born Citizen.”

That makes no sense to me. The Amendment says "allpersons born or naturalized in the United States and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside" All means all. There is no special part of the Amendment that addresses those born to two citizens parent, or one citizen parent, or born to aliens. It says all. What you call an Article II "natural born Citizens" are not excluded or set aside on a pedestal somewhere, they are included.

How many classes of citizens do you think there are? What are the differences in their rights and privileges?

I believe there are only two types, natural born or naturalized, the only difference being that a naturalized citizen is not eligible for the presidency.

Linda said...

@Mario Apuzzo

You said "There is plenty of historical, Congressional, and U.S. Supreme Court evidence that confirms that a “natural born Citizen” is a child born in a country to parents who were its “citizens.” "

What Congressional evidence are you referring to?

What SCOTUS evidence are you referring to? Are you talking about anything other than that paragraph in Minor and any case that cites it?

Linda said...

@Mario Apuzzo

You said:

"Hence, Luria told us that Minor was a precedent on citizenship and presidential eligibility."

"You question my prior use of the Luria decision. First, there is a limit to how many pages are contained in a brief. It is not possible to cite and discuss every authority that may apply to any given point."

We will just have to disagree about what Luria said and whether Minor was a precedent on presidential eligibility.

Maybe it is just way too late for me (I am literally reading with one eye closed in order to focus), but I cannot find the last sentence of the Luria cite, the one that mentions presidential eligibility, in Minor. The first two lines are not word for word, is close enough, but I don't find the last one.

Could you please point that out for me?

Here is the cite from Luria:

"Citizenship is membership in a political society, and implies a duty of allegiance on the part of the member and a duty of protection on the part of the society. These are reciprocal obligations, one being a compensation for the other. Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency. Minor v. Happersett, 21 Wall. 162, 88 U. S. 165; Elk v. Wilkins, 112 U. S. 94, 112 U. S. 101; Osborn v. Bank of United States, 9 Wheat. 738, 22 U. S. 827."

Mick said...

@ juniper55,

The joint Congress counted the electoral votes on January 4, and determined the winner is Obama. It has also simply performed a ministerial duty prescribed by the Constitution (“The President of the Senate shall, in the Presence of the Senate and House of Representatives, open all the Certificates, and the Votes shall then be counted.” Art. 2 S. 1 C.3). That ministerial duty of “counting of the votes” shall be judicially reviewable all the way to the US Supreme Court, since it is not a discretionary act of Congress. “Counting” will have been a simple mandatory duty designated by the constitution, and the Joint Congress will have counted “inconclusive” Florida electoral votes.

Linda said...

@Mario Apuzzo

You said: "With reference to the Luria case, you said that you read all my pleadings/motions/briefs, etc.” I’m sure you can find there my arguments on why Minor’s definition of a “natural-born citizen’ is not dicta. I have also written at length on Minor at this blog. Restate your argument which supports your position that Minor’s definition of a “natural born Citizen” is dicta and if I see anything that is new, I will respond.


I appreciate that. That is what I have been trying to do, but I am being deluged with questions about other cases.

1. The parties agreed Minor was a citizen,
2. The question posed described Minor as a citizen.
3. The holding said the Constitution does not confer suffrage on anyone, so laws saying only males can vote are not unconstitutional.
4. The ruling would not change if Minor was a naturalized citizen.
5. If the sentence "These were natives or natural-born citizens, as distinguished from aliens or foreigners." could be removed from the decision, with no effect on the ruling.
6. Discussion in the decision that is not required for ruling is, by definition, dicta.

Linda said...

@Mario Apuzzo and MichaelN

Maybe if you read the full quote, in context, you will agree with me.

"The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle. "

Mario Apuzzo, Esq. said...

DavidFarrar at 1/5/13 6:04 PM,

You said:

“A born citizen of a state requires residency and borders, whereas a born U.S. Citizen requires only the inherited allegiance of the father's citizenship.

Since the 1922 Married Women's Act allowed allegiance to follow the mother for the first time, in order to avoid dual allegiances at birth, both parents must be U.S. citizens of an Art. II, §1, cl. 4 natural born U.S. Citizen.”

To be a “natural born Citizen” has always required the U.S. allegiance and citizenship of both father and mother at the time of the child's birth in the country. Before the Cable Act of 1922, the citizenship of the wife simply followed that of the husband. Hence, if the father was a U.S. citizen, so was the wife. So, during the Founding, when someone spoke about the citizenship of the father, it was understood that it meant both the father and mother. See Justice Daniels in Dred Scott v. Sandford, 60 U.S. 393 (1857), who actually took the time to confirm this fact when he took out of Vattel’s Section 212 definition of a “natural-born citizen” the reference to “fathers” and “father” and replaced it with “parents” and “person,” respectively.

After the Cable Act, women for the first time took on their own allegiance and citizenship separate from that of their husband’s. But as I have argued, the act did not amend Article II, Section 1, Clause 5 or the requirements for being a “natural born Citizen,” i.e., U.S. citizen parents are still needed under the settled constitutional definition of a “natural born Citizen.” In practice, the Cable Act actually made it a bit more difficult to have a “natural born Citizen,” for both father and mother, if not U.S. citizens by birth, have to take affirmative steps under our naturalization laws to make sure one or both are U.S. citizens before giving birth to a child in the United States.

Mario Apuzzo, Esq. said...

Linda @1/5/2013 5:14 AM,

Justice Gray in Wong Kim Ark knew that Congress refused to exercise its legislative power to naturalize Chinese citizens. Hence, he could not, like Minor did for Virginia Minor who was born in the United States to parents who were its citizens, apply the common law definition of a “natural-born citizen” to make Wong a “citizen.” He therefore resorted to interpreting and applying to Wong the Fourteenth Amendment and its more liberal “subject to the jurisdiction thereof” clause. In so doing, he explained that, for children born in the United States, being declared a “citizen” under the Fourteenth Amendment did not require any naturalization act of Congress. Hence, Congress’s naturalization powers were not needed for both Wong and his parents and the Court was able to get around Congress’s refusal to naturalize Chinese citizens. So the Court explained that being declared a “citizen” at birth under the Fourteenth Amendment did not require any further naturalization after birth.

But none of that means that the Court did not through judicial power in essence naturalize Wong to be a “citizen” at birth under the Fourteenth Amendment by interpreting “subject to the jurisdiction thereof” to encompass domiciled and resident alien parents for the U.S.-born child. After all, Wong was born with alienage (born to alien parents which under jus sanguinis made him a Chinese citizen at birth) and needed that alienage to be removed as of the time of birth. That is naturalization at birth. Lord Coke did the same in Calvin’s Case (1608).

What is critical to note about Calvin’s Case is Lord Coke’s statement: “Calvin the plaintiff naturalized by procreation and birth-right, since the descent of the Crown of England.” Here, he told us that Calvin was naturalized at birth. We need to understand that Parliament had refused for political reasons to naturalize persons like Calvin, a postnati, as he was born to alien parents in Scotland after Scottish King James IV in 1603 became King of England as James I. So, they left it up to the English courts to do so. Under English law, a child born anywhere in the world to British “natural born subjects” was himself a “natural born subject.” Calvin had to be naturalized because his parents were aliens (“by procreation”). And he earned the right to be naturalized at birth because he was born within the King’s dominion (“by . . . birth-right”). Vattel in Section 214, entitled “Naturalisation,” confirmed this aspect of English common law when he said: “Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.” So, Vattel would have considered Calvin to be a naturalized citizen from birth, not a Section 212 “native, or natural-born citizen.” Hence, Calvin could be a “natural born subject” under English common law, but he, being naturalized at birth by the power of jus soli, could not be a “natural born Citizen” under American common law, for the latter needed no naturalization at birth by any judicial or legislative act because of being born in the country to two “citizen” parents. So, the plain holding of Calvin’s Case is that a child born to alien parents in the dominion of the King was a naturalized “natural born subject.”

Calvin, if born under the same circumstances in the United States (i.e., born in the country to alien parents) after the adoption by the First Congress of the Naturalization Act of 1790 and before Wong Kim Ark would have been an alien for being born to alien parents. After Wong Kim Ark, he would have been a born “citizen of the United States” under the Fourteenth Amendment (as interpreted and applied by Wong Kim Ark) and 8 U.S.C. Sec. 1401(a). But Calvin, not being born to British subjects [U.S. “citizens”] and therefore needing naturalization at birth, could not be an Article II “natural born” Citizen.”

Linda said...

@Mario Apuzzo 1/6/13 12:54AM

How do you tout the Luria quote as showing Minor was precedent for presidential eligibility, but when I say the same thing, you say it is all wrong?

In response to my stating “To my knowledge, the only distinction in US citizenship is that naturalized citizens are not eligible for the presidency.” (which, says the same thing as the Luria quote "... a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency.", you blasted me. Here is your reply:

"Your argument commits the fallacy of Affirming the Consequent. Here is your argument:

A “natural born Citizen” is “citizen” who was not naturalized after birth.

Barack Obama is a “citizen” who was not naturalized after birth.

Therefore Barack Obama is a “natural born Citizen.”

The fallacy lies in the fact that just being a “citizen” who was not naturalized after birth does not qualify one as a “natural born Citizen,” because the definition of a “natural born Citizen” is a child born in the country to parents who were its “citizens.” Only by satisfying these necessary and sufficient conditions does one demonstrate that one is a “natural born Citizen.” So, one can be a Fourteenth Amendment “citizen of the United States” who was not naturalized after birth, by being born in the United States to one or two domiciled and resident alien parents, but still not be a “natural born Citizen.”

Which is it? Is what I said right or is Luria wrong, can't be both.

Linda said...

@Mario Apuzzo

You said the following, among other things, with regard to my claim that the discussion or "definition" of NBC in Minor is dicta:
(all emphasis mine)

"Yes, and Minor applied the common law definition of a “natural-born citizen” that you say is dicta to find that Virginia Minor was a “citizen.” So, you are still saying that the Court's finding that Virginia Minor was a "citizen" is dicta.

"Since the Court saw fit to demonstrate through historical development, common law, Congressional acts, and government practice that Virginia Minor was a “citizen,” and since it had to first define a “natural born citizen” to tell us who at common law were the “citizens” through birth in the country, its discussion of the definition of a “natural-born citizen” is not dicta."

That is where you are wrong and exactly why the discussion of NBC was dicta. The Court did not have to discuss common law and NBC to determine Minor was a citizen. That is not my opinion or how I think the Court could have decided the case. That is part of the decision itself, proving the other is dicta.

In the beginning of the decision, the Chief Justice stated "The question is presented in this case whether, since the adoption of the Fourteenth Amendment, a woman who is a citizen of the United States and of the State of Missouri is a voter in that state notwithstanding the provision of the constitution and laws of the state which confine the right of suffrage to men alone."

Then in the 3rd paragraph, "There is no doubt that women may be citizens. They are persons, and by the Fourteenth Amendment "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the state wherein they reside."

There you have it. The Court stated that Minor was a citizen via the 14th Amendment. It could have chosen from that point to discuss whether the right of suffrage is conferred upon citizens by the Constitution, but it did not. Instead, the Court added that the Amendment was not necessary to make women citizens, as women had always been citizens and went on to discuss common law and NBC.

That is why it is, by definition, that discussion was dicta.

Linda said...

@Mario Apuzzo 1/6/13 5:14AM

I

You said: Justice Gray in Wong Kim Ark knew that Congress refused to exercise its legislative power to naturalize Chinese citizens.

That is not correct. Congress used its legislative power to enter into a treaty which specifically said Chinese in the US could not become naturalized citizens.



Linda said...

@Mario Apuzzo 1/6/13 21:57 PM

(Sorry, I think in my last "I" post I used the date and time of the post you were referring to...)

II

You said: "Hence, he could not, like Minor did for Virginia Minor who was born in the United States to parents who were its citizens, apply the common law definition of a “natural-born citizen” to make Wong a “citizen.”

That is not correct either. Justice Gray went on for over 50 pages discussing common law on citizenship by birth and naturalization.

Linda said...

@Mario Apuzzo
(I am putting your quotes in italics)
III

"In so doing, he explained that, for children born in the United States, being declared a “citizen” under the Fourteenth Amendment did not require any naturalization act of Congress. Hence, Congress’s naturalization powers were not needed for both Wong and his parents and the Court was able to get around Congress’s refusal to naturalize Chinese citizens."

No, WKA was born a citizen in the US and needed no naturalization. He parents were aliens and remained so.

"So the Court explained that being declared a “citizen” at birth under the Fourteenth Amendment did not require any further naturalization after birth."

You statement implies there was naturalization and that is incorrect. The Court said "Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization."


Linda said...

@Mario Apuzzo

IV

But none of that means that the Court did not through judicial power in essence naturalize Wong to be a “citizen” at birth under the Fourteenth Amendment by interpreting “subject to the jurisdiction thereof” to encompass domiciled and resident alien parents for the U.S.-born child. After all, Wong was born with alienage (born to alien parents which under jus sanguinis made him a Chinese citizen at birth) and needed that alienage to be removed as of the time of birth. That is naturalization at birth. Lord Coke did the same in Calvin’s Case (1608).

That is entirely incorrect. Justice Gray went through extension explanation on meaning of "subject to the jurisdiction thereof", some of which follows:

"The real object of the Fourteenth Amendment of the Constitution, in qualifying the words, "All persons born in the United States" by the addition "and subject to the jurisdiction thereof," would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law), the two classes of cases -- children born of alien enemies in hostile occupation and children of diplomatic representatives of a foreign State -- both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country."

and

"The words "in the United States, and subject to the jurisdiction thereof" in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words "within the limits and under the jurisdiction of the United States," and the converse of the words "out of the limits and jurisdiction of the United States" as habitually used in the naturalization acts. This presumption is confirmed by the use of the word "jurisdiction" in the last clause of the same section of the Fourteenth Amendment, which forbids any State to "deny to any person within its jurisdiction the equal protection of the laws." It is impossible to construe the words "subject to the jurisdiction thereof" in the opening sentence, as less comprehensive than the words "within its jurisdiction" in the concluding sentence of the same section; or to hold that persons "within the jurisdiction" of one of the States of the Union are not "subject to the jurisdiction of the United States."
These considerations confirm the view, already expressed in this opinion, that the opening sentence of the Fourteenth
Page 169 U. S. 688
Amendment is throughout affirmative and declaratory, intended to allay doubts and to settle controversies which had arisen, and not to impose any new restrictions upon citizenship."

Linda said...

@Mario Apuzzo

V

Justice Gray disagrees with your assessment of Calvin's Case:

"II. The fundamental principle of the common law with regard to English nationality was birth within the allegiance, also called "ligealty," "obedience," "faith," or "power" of the King. The principle embraced all persons born within the King's allegiance and subject to his protection. Such allegiance and protection were mutual -- as expressed in the maxim protectio trahit subjectionem, et subjectio protectionem -- and were not restricted to natural-born subjects and naturalized subjects, or to those who had taken an oath of allegiance, but were predicable of aliens in amity so long as they were within the kingdom. Children, born in England, of such aliens were therefore natural-born subjects. But the children, born within the realm, of foreign ambassadors, or the children of alien enemies, born during and within their hostile occupation of part of the King's dominions, were not natural-born subjects because not born within the allegiance, the obedience, or the power, or, as would be said at this day, within the jurisdiction, of the King.
This fundamental principle, with these qualifications or
Page 169 U. S. 656
explanations of it, was clearly, though quaintly, stated in the leading case, known as Calvin's Case, or the Case of the Postnati, decided in 1608, after a hearing in the Exchequer Chamber before the Lord Chancellor and all the Judges of England, and reported by Lord Coke and by Lord Ellesmere. Calvin's Case, 7 Rep. 1, 4b-6a, 18a, 18b; Ellesmere on Postnati, 62-64; S.C., 2 Howell's State Trials, 559, 607, 613-617, 639, 640, 659, 679.
The English authorities ever since are to the like effect. Co.Lit. 8a, 128b, Lord Hale, in Hargrave's Law Tracts, 210, an in 1 Hale P.C. 61, 62; 1 Bl.Com. 366, 369, 370, 374; 4 Bl.Com. 74, 92; Lord Kenyon, in Doe v. Jones, 4 T.R. 300, 308; Cockburn on Nationality, 7; Dicey Conflict of Laws, p. 173-177, 741.

Mario Apuzzo, Esq. said...

Linda @1/5/2013 5:19 AM,

You continue to err in thinking that any person who becomes a “citizen” not by naturalization after birth is necessarily a “natural born Citizen.” That is not what the Fourteenth Amendment says nor what Wong Kim Ark found. The definition of a “natural born Citizen” is not any citizen who did not acquire that status through naturalization after birth. Congress through its naturalization powers has created various categories of “citizens” at birth who are nevertheless not “natural born Citizens.” That is why Congress, starting with the Naturalization Act of 1795, calls them “citizens of the United States” at birth and not “natural born Citizens.” Likewise, the Fourteenth Amendment provides for a “citizen” at birth who is not a “natural born Citizen,” if the “citizen” does not also satisfy the common law definition of the clause which is a child born in a country to parents who were its “citizens.”

Mario Apuzzo, Esq. said...

Linda @1/5/2013 12:08 PM,

It looks like you are having difficulty reading the clear and plain text of the Naturalization Acts of 1790, 1795, 1802, and 1855which 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.
Your are reading words into the Naturalization Act of 1790 and these other acts which do not exist in the acts and I can see why. These Acts were passed after the Constitution was adopted. They give us insight into what the Framers of the Constitution meant by “natural born Citizen.” The First Congress, whose members contained 17 signers of the Constitution, passed the Naturalization Act of 1790 (1 Stat.103, 104) which provided as follows:

“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. . . and 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.”

Here we can see that the First Congress made no distinction between whether these children were born in the United States or abroad. If Congress wanted its language to apply to just children born out of the United States, it surely knew how to say so. Rather, Congress used all encompassing language with covered children born in and out of the United States. Congress considered the children born in the U.S. to alien parents to be aliens who upon the naturalization of their parents if done before reaching the age of majority became naturalized citizens or upon their own naturalization if done after reaching that age became “citizens of the United States.” Since wives followed the national character of their husbands, this law meant that the father of a child born in the U.S. would have to naturalize which would cause both his child and his wife to then become “citizens of the United States,” not “natural born Citizens.”

That I am reading the 1790 Act (whose language was repeated in the Naturalization Acts of 1795, 1802, and 1855) correctly and you incorrectly is demonstrated by the James McClure citizenship case resolved by the James Madison Administration in 1811 under the Naturalization Act of 1802.Relative to these acts, you are having trouble reading the clear and plain text of the John McClure case which tells us that even though James McClure was born in South Carolina in April 21, 1785, he was not declared a “natural born Citizen” and he did not become a “citizen of the United States” by naturalization after birth 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.


Linda said...

@Mario Apuzzo 1/6/13 10:34PM

You said: "That I am reading the 1790 Act (whose language was repeated in the Naturalization Acts of 1795, 1802, and 1855) correctly and you incorrectly is demonstrated by the James McClure citizenship case resolved by the James Madison Administration in 1811 under the Naturalization Act of 1802."



The fact that I am reading 1790, 1795, 1802 and 1855 Naturalization Acts correctly and you are not can be seen in the handling the James McClure citizenship case in 1811. The Madison Administration resolved the situation without reference to the Naturalization Act of 1802.

First, McClure had a US passport, given to him by William Pinkney, “confessing him to be a native citizen of the U.S.". At the time, Pinkney was the Minister Plenipotentiary from the United States to Great Britain. Pinkney became US Attorney General under the the Madison Administration in December 1811.

James Monroe, the future president who was then the Secretary of State, sent a letter on behalf of McClure. The letter was addressed to Joel Barlow, who was the Minister Plenipotentiary to France. In his letter, Monroe stated that McClure was born in Charleston since the Revolution.

Remember, it was Madison who said:

"It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States."

Carlyle said...

Ah, looks like this blog has been invaded by the "how many angels can dance on the head of a pin" folks again. SIGH.

Perhaps anybody who is allowed to engage in detailed arguments here ought to first pass the gauntlet of:

"What was the purpose of the NBC clause"?

Once you answer that correctly, the rest just sort of falls into place.

Somehow we need to quit slogging through the mud and look up and see -- the light - THE LIGHT!

Mario Apuzzo, Esq. said...

Linda @1/5/2013 5:40 PM,

Your comment proves nothing. If anything and I can see why, it shows that you do not appreciate the Founders’ and Framers’ use of the clause “natural born Citizen.” “Natural born Citizen” is a word of art, an idiom, a unitary clause of our Constitution. The Founders and Framers had a very specific reason for using it. Applying the clause in presidential eligibility, the clause was designed to make sure future Presidents and Commanders in Chief were born with sole allegiance and citizenship to the United States. In Article II, Section 1, Clause 5, they distinguished it from a “Citizen of the United States.” The Third Congress specifically removed the clause “natural born citizen” that was included in the Naturalization Act of 1790 and replaced it in the Naturalization Act of 1795 with “citizen of the United States.”

Regarding how our U.S. “citizens” break down under the Constitution, we have the following types:

A: “citizens” who are “natural born Citizens:”

1. defined by common law as a child born in a country to parents who were its “citizens” (was born a “citizen” with sole allegiance and citizenship to the United States). See Minor v. Happersett (1875); and

B: “citizens” who are not “natural born Citizens:”

1. “citizen of the United States,” defined by the Fourteenth Amendment as “born . . . in the United States and subject to the jurisdiction thereof” (was born a “citizen” but because one or two parents were not U.S. “citizens,” was not born with sole allegiance and citizenship to the United States) (see U.S. v. Wong Kim Ark (1898)) or “naturalized in the United States and subject to the jurisdiction thereof” (was born with no allegiance and citizenship to the United States because was born out of the United States to two alien parents and became a U.S. “citizen” after birth through naturalization in the United States);

2. “citizen of the United States,” defined by a Congressional Act as born out of the United States to one or two U.S. “citizen” parents (was born a “citizen” but not with sole allegiance and citizenship to the United States because was born out of the United States and possibly also born to one non-U.S. “citizen” parent) or naturalized by an Act of Congress after birth (was born with no allegiance and citizenship to the United States because was born out of the United States to two alien parents and became a U.S. “citizen” after birth through naturalization); and

3. “citizen of the United States,” defined by treaty (was born with no allegiance and citizenship to the United States because was born out of the United States to two alien parents and became a U.S. “citizen” after birth through the terms and conditions of the treaty).

Only A.1 “citizens,” being “natural born Citizens,” are eligible to be President.

davidfarrar said...

Just an update: Article II, Section 1, Clause 5, is, in fact, Article II, Section 1, Clause 4 since the passage of the 12th Amendment in 1804 -- if I am not mistaken.

ex animo
davidfarrar

Linda said...

@Mario Apuzzo

We talked about the Luria case and your claim that it proves Minor is precedent for presidential liability, specifically the last sentence:

"Under our Constitution, a naturalized citizen stands on an equal footing with the native citizen in all respects save that of eligibility to the Presidency."

I still have not found it within the Minor decision. Could you tell me where it is?

Linda said...

@Mario Apuzzo 1/5/13 10:40PM

You stated:
"Since the Court saw fit to demonstrate through historical development, common law, Congressional acts, and government practice that Virginia Minor was a “citizen,” and since it had to first define a “natural born citizen” to tell us who at common law were the “citizens” through birth in the country, its discussion of the definition of a “natural-born citizen” is not dicta."

Chief Justice Waite began the decision: "The question is presented in this case whether, since the adoption of the Fourteenth Amendment, a woman who is a citizen of the United States and of the State of Missouri is a voter in that state notwithstanding the provision of the constitution and laws of the state which confine the right of suffrage to men alone."

The 3rd paragraph states: "There is no doubt that women may be citizens. They are persons, and by the Fourteenth Amendment "all persons born or naturalized in the United States and subject to the jurisdiction thereof" are expressly declared to be "citizens of the United States and of the state wherein they reside."

The Court stated that Minor was a citizen via the 14th Amendment. At that point, It could have addressed whether the Constitution confers the right of suffrage on citizens, but it did not. Instead, the Court stated that the Amendment was not necessary to make women citizens, as women had always been citizens and went on to discuss common law and NBC. That is why that discussion is, by definition, dicta.

Do you see my point?

Mario Apuzzo, Esq. said...


Linda @January 8, 2013 1:39 AM,

I do not understand why you are having so much trouble understanding Luria. The last time that I looked at the Constitution it still said that one has to be a "natural born Citizen" in order to be eligible to be President. And the last time that I looked at Minor it still said: “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. . . .”

So just connect the dots and it will set you free.

Mario Apuzzo, Esq. said...

Linda 1/8/03 2:12 AM,

You continue to seek to have Minor’s definition of a “natural-born citizen” declared to be dicta by use of what you call “necessity,” i.e., whether it was necessary that the Court defined a “natural-born citizen.” You argue that the Court could have just as easily disposed of the case by interpreting and applying the Fourteenth Amendment rather than the “natural-born citizen” clause and therefore the Court’s pronouncement on what is a “natural-born citizen” is dicta. Again you fail because of faulty logic.

Dicta is that which is not part of the resolution or determination of the court. If a court thoroughly and thoughtfully analyzed and resolved an issue in the case, how it analyzed and resolved that issue is not dicta if the court gave that issue and its analysis and resolution its full attention. The concept of necessity as it applies to dicta comes into play when the question is whether a judge’s statement was necessary to the means chosen to resolve and determine a case, not whether the means chosen by the court were necessary. For example, a court can decide a case on standing, political question, mootness, or even on the merits. Those are the means. But once the means are chosen, and the court carefully decides the case based on those means, what it decides is not dicta simply because it was not necessary for the court to have chosen those means as opposed to another. Hence, that a court chooses one path rather than another to resolve a case does not control whether its decision loses its precedential value. What does control on the question of whether any given statement by the court is dicta is whether that statement was necessary to the analysis and decision of the means chosen by the court to resolve the case, not whether the means chosen by the court were necessary given that other means existed.

Applying these principles to the Minor decision, whether Minor could have used either common law or the Fourteenth Amendment to find that Virginia was a “citizen” does not take away from the precedential value of the Court choosing to dispose of the case through the “natural-born citizen” clause. The absurdity of your position can be seen as follows: assuming that the Court resolved the case on Fourteenth Amendment grounds, using your logic, one could argue that the decision is dicta because it was not necessary that the Court resolve it on Fourteenth Amendment grounds, for it could have done so by using the “natural-born citizen” clause. Your error lies in how you apply “necessity.” You erroneously apply it to the means that a court chooses to resolve a case. Rather, you need to apply it to the question of whether what a court said was necessary to the resolution and determination made by the court, regardless of what means the court chose to arrive at that resolution and determination.

So, Minor chose to dispose of the case through the common law and the “natural-born citizen” clause rather than through the Fourteenth Amendment and “citizen of the United States” clause. Its choice is just as valid as if it had chosen the Fourteenth Amendment route. Not only did the Court choose the common law and the “natural-born citizen” clause, but it also thoughtfully and thoroughly analyzed its choice. Hence, the decision that the Court made based on its choice and analysis is not dicta. This means that the Court’s definition of a “natural-born citizen,” which was essential to its decision to hold Virginia Minor a “citizen” under common law rather than under the Fourteenth Amendment, is not dicta, but rather precedential.

Additionally, please be warned that by you arguing that the Court could have disposed of the case under the Fourteenth Amendment citizenship standard rather than under common law citizenship standard concedes my point that the two standards are different.

Linda said...

@Mario Apuzzo 1/18/13 8:32AM

"So just connect the dots and it will set you free."

Congrats! I am glad you have finally realized that sometimes you have to connect the dots to understand a precedent!

Now you can see that when the Court in WKA cites that all persons born in the US are natural born citizens, then rules that WKA is a citizen by virtue of his birth in the US, you can connect the dots, be set free, and finally understand how the Court's ruling meant WKA was a NBC. Woo Hoo!

Linda said...

@Mario Apuzzo 11:50AM

You said:

"Applying these principles to the Minor decision, whether Minor could have used either common law or the Fourteenth Amendment to find that Virginia was a “citizen” does not take away from the precedential value of the Court choosing to dispose of the case through the “natural-born citizen” clause. The absurdity of your position can be seen as follows: assuming that the Court resolved the case on Fourteenth Amendment grounds, using your logic, one could argue that the decision is dicta because it was not necessary that the Court resolve it on Fourteenth Amendment grounds, for it could have done so by using the “natural-born citizen” clause."

and

"Additionally, please be warned that by you arguing that the Court could have disposed of the case under the Fourteenth Amendment citizenship standard rather than under common law citizenship standard concedes my point that the two standards are different."

The first paragraph is flawed because you keep saying that the Court had a choice how to resolve the case. The question presented to the case was:

"whether, since the adoption of the Fourteenth Amendment, a woman who is a citizen of the United States and of the State of Missouri is a voter in that state notwithstanding the provision of the constitution and laws of the state which confine the right of suffrage to men alone."

The Court had to resolve it via the 14th Amendment, as that was what it asked. The discussion of common law and NBC was superfluous and therefore, dicta.

Your second point is also in error, as standards are not different. It is your understanding of the 'definition' of NBC that is the problem. We have been round and round on what it means, and will definitely not agree. But whatever that 'definition' means is irrelevant, since it is in the section of the decision that is dicta.

Mario Apuzzo, Esq. said...

I of II

Linda @1-8-13 12:23 PM,

1. You said:

“The first paragraph is flawed because you keep saying that the Court had a choice how to resolve the case. The question presented to the case was:

‘whether, since the adoption of the Fourteenth Amendment, a woman who is a citizen of the United States and of the State of Missouri is a voter in that state notwithstanding the provision of the constitution and laws of the state which confine the right of suffrage to men alone.’

The Court had to resolve it via the 14th Amendment, as that was what it asked. The discussion of common law and NBC was superfluous and therefore, dicta.”

Response: First, I am not the one who has kept saying that the Minor Court had a choice on how to resolve the case. That has been you. You are the one who has continued to maintain that the Court’s discussion on the meaning of a “natural-born citizen” is dicta because the Court could have resolved the question of Virginia Minor’s citizenship with the Fourteenth Amendment rather than with the “natural-born citizen” clause. With you saying that the Court could have accomplished the same result by way of the Fourteenth Amendment, you add that the Court’s discussion on the “natural-born citizen” was not necessary and therefore dicta. This is the argument that you and other Obama eligibility supporters have made regarding Minor and now you want to maneuver away from that argument and dispute what Minor's definition of a "natural-born citizen" is.

Second, the question presented to the Court is just that, a question presented by the parties. That was not the question that the Court adopted for itself. The Court was not obligated to answer the question presented by the parties and could have framed the question how it wanted which is nothing abnormal with the U.S. Supreme Court or any court. While the parties assumed in their question that Virginia Minor was a “citizen of the United States” under the Fourteenth Amendment, the court did not simply accept that assumption. Rather, it demonstrated through historical sources, constitutional provisions, Congressional Acts, and administrative activity that women had always been citizens like men. The Court concluded that the Fourteenth Amendment was not needed for Virginia Minor to be a “citizen,” that the Constitution (which then already included the Fourteenth Amendment) did not define what a “natural-born citizen” was, the common law with which the Framers were familiar did define that clause, and that by meeting the common law definition of a “natural-born citizen,” Virginia Minor was without any doubt a “citizen,” which entitled her to all the privileges and immunities of “citizens” available under Article IV and to protection of those rights under the Fourteenth Amendment. Unfortunately for Virginia Minor, the Court held, based on historical development and the state of the law, that voting was not included in those privileges and immunities. So, while Virginia won the citizenship battle, she lost the voting rights one. But the fact that she lost her battle to establish that women had the constitutional right to vote like men, does not take away from the Court’s analysis, discussion, and decision generally on American citizenship and specifically on the “natural-born citizen” clause.

2. You said:

“Your second point is also in error, as standards are not different. It is your understanding of the 'definition' of NBC that is the problem. We have been round and round on what it means, and will definitely not agree. But whatever that 'definition' means is irrelevant, since it is in the section of the decision that is dicta.”

Continued . . .

Mario Apuzzo, Esq. said...

II of II

Response: I have shown that Minor, which was also cited and quoted by Wong Kim Ark on the exact definition, confirmed the definition of a “natural-born citizen” which it said existed under the common law with which the Framers were familiar. That definition is a child born in a country to parents who were its “citizens.” I have shown that Minor’s definition is not dicta. You have failed to show that it is dicta and now want to change the goal posts and argue that Minor did not provide or confirm any such definition.

That both Minor and Wong Kim Ark confirmed the age-old common law definition of a “natural-born citizen is not reasonably disputable. I have shown that both Minor and Wong Kim Ark confirmed that definition. Here is the confirming language from both decisions:

United States v. Wong Kim Ark, 169U.S. 649, 18 S. Ct. 456, 42 L. Ed. 890 (1898) ("‘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 [680] 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 679-80 (citing and quoting Minor v. Happersett, (1874) 21 Wall. 162, 166-168)).

The standard for defining a “natural born Citizen” is found neither in the Fourteenth Amendment nor directly in any Congressional statute, for the latter define a “citizen of the United States,” not a “natural born Citizen.” Rather, the standard is found in American common law. The Minor definition is, as the Court itself specifically stated, the common law standard. The Fourteenth Amendment provides the definition of a “citizen of the United States,” which both Minor and Wong Kim Ark demonstrated is a different standard from the common law definition of a “natural-born citizen.” The Wong Kim Ark decision is totally consistent with my point that the meaning of a “natural born Citizen” does not change or become conflated with a “citizen of the United States” simply because another type of citizen at birth is created by the Fourteenth Amendment. The definition of a “natural-born citizen” is also not found in any Congressional statute which, like the Fourteenth Amendment, only define what is a “citizen of the United States” and not a “natural born Citizen.” Hence, you commit the Genetic Fallacy and conflate and confound a “natural born Citizen” with a “citizen of the United States” when you argue that a Fourteenth Amendment or Congressional Act “citizen of the United States” at birth is the equivalent of a common law “natural born Citizen.”

So, you have also failed to show that I am wrong in my position that Minor and Wong Kim Ark, confirmed the one and only American common law definition of a “natural-born Citizen.” You have failed to show that Minor’s statement regarding what that definition was at common law is dicta. Of course, we can agree that you have one definition of a “natural born Citizen” and I have another and you believe that whatever definition Minor may have provided of the clause is dicta and I believe it is not. But the problem for you is that I have historical sources, Congressional Acts, U.S. Supreme Court cases, reason, and logic that support Minor’s definition of a “natural-born citizen” and show that it is not dicta and you do not have any such sources and reasoning that support your definition of the clause or your position that Minor’s definition is dicta.



Carlyle said...

Ever hopeful for definitive clarity - - -

Everybody agrees that someone born on the soil, of two citizen parents, is a NBC.

The question is whether there has ever been any official document or process that has broadened that.

I have yet to hear of any. And given the fact the the WHOLE PURPOSE of the NBC clause was to provide RESTRICTIONS (to better protect national security), why would anybody change it?

The constitution is not a diversity experiment (and the NBC clause was certainly never meant to EXPAND candidacy), why do certain factions remain fixated on treating it as such?

Further, I get weary of people trying every which way to make the constitution and the law say what they wish. Whatever happened to the common sense approach of adopting the most clear and obvious interpretation?

davidfarrar said...

@Carlyle

"Everybody agrees that someone born on the soil, of two citizen parents, is a NBC."

Sadly, a number of state courts don't agree with your statement, the Ankeny case in Indiana for one.

ex animo
davidfarrar

Mario Apuzzo, Esq. said...

davidfarrar,

Please note that there is a logically significant difference between these two statements:

"Everybody agrees that someone born on the soil, of two citizen parents, is a NBC."

"Everybody agrees that a NBC is someone born on the soil, of two citizen parents."

Ankeny cannot and did not deny the first statement. It did deny the second.

ksdb said...

@ davidfarrar, technically the Ankeny court did NOT disagree with that statement. They just went further. They said that they believed that NBC could apply to others and not just those born on the soil of two citizen parents.

But, the Ankeny decision contradicts its own beliefs by admitting there's no legal precedent in the Wong Kim Ark decision, which it cited for "guidance."

Second, it admits that when construing the 14th amendment, the Minor decision conluded it did not say who shall be natural-born citizens.

And third, they seem very confused, saying in the decision that Minor "left open the issue of whether a person who is born within the United States of alien parents is considered a natural born citizen," but in the footnote, "Minor contemplates only scenarios where both parents are either citizens or aliens ..." How does Minor leave open an issue or scenario that it contemplated??

Mario Apuzzo, Esq. said...

Another error, among many, committed by Ankeny is in conflating and confounding a “citizen” with a “natural born Citizen.” Ankeny erred by finding that Minor left open the question of whether a child born in the United States to alien parents was a “natural-born citizen.” The Court did not do any such thing. The Court defined a “natural-born citizen,” stating what the definition was at common law with which the Framers were familiar. That child without doubt did not satisfy that definition. Hence, that child could not be a “natural-born citizen.” Rather, what Minor did is leave open the question of whether that child was a “citizen.” It added that “there have been doubts” whether that child was a “citizen.” If that child was a “natural-born citizen,” there would not be any doubts as to the child being a “citizen.” So, instead of correctly finding that Minor left open the question of whether a child born in the United States to alien parents was a “citizen,” Ankeny incorrectly found Minor left open the question about whether such child was a “natural-born citizen.”

Ankeny also committed another error in assuming without demonstrating that the Fourteenth Amendment defines a “natural born Citizen.” This finding is totally contradicted by the unanimous U.S. Supreme Court in Minor which found the Constitution, which then included the Fourteenth Amendment, did not define a “natural-born citizen,” but common law did.

davidfarrar said...

@Mario Apuzzo, ksdb and Carlyle...

I stand corrected. Thank you.

ex animo
davidfarrar

davidfarrar said...

So the rub of this whole issue is whether a person born within one of the united states is a citizen of the United States at birth?

Since the 14th Amendment didn't change anything other than create a legal predicate to change former black slaves into U.S. citizens(assuming birth was within sole jurisdiction of the U.S.) where did it transpire that ANY person born within one of the united states who was subject to more than one jurisdiction at birth was also a U.S. citizen at birth?

Is this not the central argument then, a dispute over sole jurisdiction at birth?

ex animo
davidfarrar

Mario Apuzzo, Esq. said...

davidfarrar,

Given what the settled American common law definition of a “natural born Citizen” is, i.e., a child born in a country to parents who were its “citizens” when the child was born (Minor v. Happersett (1875) and U.S. v. Wong Kim Ark (1898)), the correct question is not whether Obama is a “citizen” from the moment of birth, but whether he was born in the United States to parents who were both U.S. “citizens” when he was born. Being a citizen at birth is not a prescriptive definition, but rather only part of a description of being a “natural born Citizen.” It is only a necessary consequence of being a “natural born Citizen.” That consequence does not define what the definition’s necessary and sufficient conditions are for producing the status of being a “natural born Citizen” or even just a citizen at birth for that matter. The consequence itself does not provide any conditions for producing the consequence itself, let alone a prescription for being a “natural born Citizen” or even a “citizen of the United States” at birth. Again, the conditions to be a “natural born Citizen” are (1) birth in the United States (2) to parents who were both U.S. “citizens” when the child was born.

Neither the Fourteenth Amendment nor any existing Congressional Act (even if it could which it cannot) has amended Article II and its “natural born Citizen” clause. Both the Fourteenth Amendment and Congressional Acts produce “citizens of the United States” from the moment of birth of those children who meet their requirements for that status. But because this amendment and these statutes provide a different standard than does the American common law which provides the only standard that applies for defining a “natural born Citizen,” these birth citizens do not necessarily satisfy the two requirements of being a “natural born Citizen.” Hence, if they do not satisfy the definition of a “natural born Citizen,” they are “citizens of the United States” from birth, but they are not “natural born Citizens” and consequently not eligible to be President or Vice President. See Article II, Section 1, Clause 5 (a “Citizen of the United States” is eligible to be President only if he or she had that status as of the time of the adoption of the Constitution and for those born after that adoption, only a “natural born Citizen” is so eligible).

So do not fall for the fallacious reasoning (a tautology and fallacy of affirming the consequence) that a “natural born Citizen” is a “born Citizen” of the United States or any person who is a “citizen of the United States” from the moment of birth. Rather, a “natural born Citizen” is a child who satisfies the elements of the American common law definition of the clause which are born in a country to parents who were its “citizens” when the child was born.



Carlyle said...

Thank you Mario - as I have said before, I am an engineer not a lawyer - but in this case I was trying to be exquisitely precise in my words. You saw that immediately, DF did then with only a little prodding.

My point remains - since we all agree with something, let's start with that and then examine if there was ever any possible reason to change or expand that definition.

My claim is that the is THE way to SEE THE LIGHT.

PS - isn't it absolutely heart warming to have a dialog - even a disagreement - with people who will immediately snap-to and admit error, once a little truth or logic is applied? Isn't that the way civilized people are supposed to act?

At bottom, isn't that the reason you founded this blog? To have an intelligent give and take? How does it happen that you now spend hours shoveling great steaming piles of BS?

Wasn't the paradigm supposed to be that people were to ask honest well-intentioned questions, and then you would provide the logic and reasoning, and then they would say, "OK, now I get it"? Instead, many are like caged animals pacing and griping and refusing to let go. SIGH.

THE TRUTH WILL SET YOU FREE

I just wish we knew more such truth. So much is hidden.

davidfarrar said...

I keep going back to the time period when the Treaty of Paris had been signed, and those Tories who were living in the colonies who wish to remain subjects of the realm, made a decision to leave either to Canada or back to England. They made a conscious decision not to become U.S. citizen. In other words, to become a U.S. Citizen, one has to make a conscious decision to support and abide by the U.S. Constitution...to be among the 'Consent of the Governed'.

The problem I have with being a 'citizen of the United States' at birth, without inheriting that 'conscious decision' from one's father, but simply by being born in one of the united states, is that all important 'conscious decision' to support and abide by the U.S. Constitution is absent. In this respect then, we are not all born equal.

ex animo
davidfarrar

Teo Bear said...

Linda,

Could you please explain to us how a natural born citizen was defined prior to the 14th Amendment?

Did natural born citizens exist before the 14th Amendment?

Since Article II, Section 1, Clause 5 existed before the 14th Amendment, and whereas Article II, Sec 1. Clause 5 states that no person except a natural born citizen or citizen of the United States at the time of adoption of the constitution shall be eligible and the 14th Amendment declares all persons born or naturalized to be citizens of the United States, can you explain to us how the 14th Amendment changed the definition of a natural born citizen?

Thank you in advance for you very insightful answers.

Teo Bear

Linda said...

@Teo Bear

Thank you for your kindly worded question.

NBC has always meant a citizen at birth and that meaning has remained unchanged from colonization through today.

NBCs existed prior to the 14th Amendment.

The 14th Amendment did not change the definition of NBC, it has always been and remains, a citizen at birth.

The 14th Amendment was declarative of existing law, codifying the common law so that citizenship could not be denied to former slaves and their offspring.

The 14th Amendment did not change the meaning of NBC, therefore, it could not change the meaning of NBC in Article II.

The Amendment declared that all children born in the US were citizens. Since NBC means citizen at birth, then all children born in the US are NBC.

NBC is as it always has been. No changes.

davidfarrar said...

You see, Ted,

This is where you end up using English common law. It makes perfect sense in a monarchical form of government.

As they, themselves, will tell you, there is no difference between Cokean Perpetual Allegiance subjectship and a post American Revolutionary Lockean-consent based citizenship.

ex animo
davidfarrar

Mario Apuzzo, Esq. said...

I of II

Linda @ 1/10/13 8:57 PM,

You state that “NBC has always meant a citizen at birth and that meaning has remained unchanged from colonization through today.”

Apart what I have already said, there are additional reasons why this statement is erroneous:

(1) Your definition of a “natural born Citizen” has no set parameters. Given that you say that anyone who is a citizen at birth is a “natural born Citizen,” the class of “natural born Citizen” can just keep increasing or even be reduced, as Congress should desire at any given moment, for Congress has the power to make persons citizens at birth. Congress' naturalization powers under the Constitution enable it to naturalize citizens from birth. Since the Founders and Framers used the “natural born Citizen” clause for presidential eligibility, they would have used a definition of the clause which, like 35-years old and 14 years a resident, provided a birth line which did not fluctuate with time or politics. Hence, they would have rejected defining a “natural born Citizen” simply as a citizen at birth. Prove of this exists in Alexander Hamilton’s proposal for presidential eligibility.

Hamilton wrote a draft of the Constitution in 1787, called the British Plan (not to be confused with his sketch of June 18, 1787). Hamilton’s plan provided that the President be either at that time a citizen of one of the States or be born a Citizen of the United States. Article IX Sec. 1 in Appendix F of the Hamilton Plan of 1787 read: “No person shall be eligible to the office of President of the United States unless he be now a citizen of one of the States, or hereafter be born a citizen of the United States.” When it came to drafting the eligibility requirements for that special office of the President, Hamilton said “born” but evidently for one reason or another, his “born” formulation was not used and “natural born” was. So we can see that the Founders and Framers knew that there was a difference between a “natural born” citizen and a “born” citizen. Hamilton gave his plan to Madison before the convention came to an end which we know occurred on September 17, 1787, the date the delegates signed the Constitution. Hamilton served on committees that drafted convention rules and provided for writing style. We can reasonably assume that since the document was in the hands of these two influential Founders and Framers, they would have discussed the plan with others making decisions at that time. While we do not know exactly what happened during the convention regarding Hamilton’s “born citizen” concept, we do know that “born citizen” was not accepted and “natural born Citizen” was. We also know that if “natural born Citizen” was not clear or presented some problem, Hamilton would surely have been in the position to object to it or make some statement as to why “born” was sufficient and “natural” was surplusage which is what you are advocating should be the finding today.

This all shows that the Framers expected more than just being a “born citizen” to be eligible to be President. Any interpretation of the “natural born Citizen” clause has to address the use of the word “natural” and not just simply invent for convenience sake that today we do not need the word. We have to reasonably explain why “born” would have been rejected and “natural born” selected. Each word of the Constitution counts and we must account for each one. See Marbury v. Madison, in which Chief Justice John Marshall told us that we simply cannot write words out of the Constitution when interpreting it.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

(2) Minor v. Happersett, 88 U.S. 162, 167-68 (1875), paraphrasing the definition of a “natural-born citizen” provided by Emer de Vattel in Section 212 of The Law of Nations (1758), and not in any way referring to the English common law, held:

"The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient, for everything we have now to consider, that all children, born of citizen parents within the jurisdiction, are themselves citizens."

Id., at 167-68.

This statement shows that there was no doubt at common law who was a “natural-born citizen.” Minor also shows that there was no doubt that a “natural born Citizen” was a citizen who we know became so from the moment of birth. So, if someone was going to be a “natural born Citizen,” which necessarily meant that that person had to be a citizen at birth, there could not be any doubt that such a person, to be a “natural born Citizen,” was a citizen at birth. But Minor said “there have been doubts” whether a child born in the country to alien parents was a “citizen.” Since there were doubts whether such a child was even a “citizen,” there is no way that the Founders and Framers would have considered such a child a “natural born Citizen.”

(3) As we know from the record of constitutional debates, there was no debate on the meaning of a “natural born Citizen.” There is no record of a debate on the requirements to be a citizen from birth during the Constitutional Convention. The drafting Committee of Eleven introduced the clause. The Convention as a whole adopted the clause without discussion. The silence probably shows a general understanding at the time the only definition of a “natural born Citizen” was a child born in the country to citizen parents. If that had not been the general understanding, there would have been significant debate as to the meaning of the clause or as to other definitions of the clause which in the end provided the eligibility requirement for the President and Commander in Chief, a critical office that was going to wield enormous civil and military power. The Founders and Framers simply would not have used a term which created any doubt as to its meaning for such an important function. They would have used a term which created no doubt as to the citizenship status required of the person to fill that office. And for this reason, they also would not have been referring to the English common law concept of “natural born subject,” which not only included persons born subjects but also those so naturalized. Basing the “natural born Citizen” clause on such an English common law concept would have introduced confusion. Hence, the Founders and Framers would most likely have had to debate the clause’s meaning if that would have been their intent. Minor said that “there have been doubts” whether a child born in the country to alien parents was a “citizen.” If such doubts existed regarding such a child and if it was their intent to include such a child as a “natural born Citizen,” the Founders and Framers would have debated whether such a child was a “natural born Citizen.” Additionally, if such doubts existed concerning whether that child was a “citizen,” the Founders and Framers would not have included such a child as a “natural born Citizen.”

Linda said...

@Mario Apuzzo

I oversimplified for the sake of clarity. There are those who believe any citizen at birth is a NBC and while others believe if that citizenship at birth is via Congressional Act, they are not. Personally, I am a bit on the fence. As the child of a career military man, I cannot imagine the children of those in military service, born abroad would be denied natural born citizenship. However, I do also see your point of their could be endless additions by Congress.

Linda said...

@Mario Apuzzo

You said:

"The silence probably shows a general understanding at the time the only definition of a “natural born Citizen” was a child born in the country to citizen parents."

For me, the lack of discussion of the term NBC, would indicate an acceptance of the law at the time in the Colonies, as the English born there were NBS, so would the Americans be NBC. As quotes in WKA:

"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 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."

Linda said...

@Mario Apuzzo

You said:
" So we can see that the Founders and Framers knew that there was a difference between a “natural born” citizen and a “born” citizen. Hamilton gave his plan to Madison before the convention came to an end which we know occurred on September 17, 1787, the date the delegates signed the Constitution."


First, Hamilton did not present his plan. As for Madision, we know what he thought:

"It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States"

Mario Apuzzo, Esq. said...

Linda @1/10/13 11:17 PM,

I have always maintained that under the law of nations and American common law, John McCain is a "natural born Citizen."
Children born out of the United States to U.S. citizen parents who are serving the national defense are “reputed born in the country” to U.S. citizen parents. See Emer de Vattel, The Law of Nations, Section 217 ("children born out of the country in the armies of the state . . . are reputed born in the country").

John McCain was born in Panama to U.S. citizen parents who were serving the U.S. Navy and the national defense of the United States. Hence, he is "reputed born" in the United States. Since he was also born to U.S. citizen parents, he is a "natural born Citizen."

davidfarrar said...
This comment has been removed by the author.
davidfarrar said...

And I will submit James Madison's statement in the William Smith case is incorrect:

"It is an established maxim that birth is a criterion of allegiance. Birth however derives its force sometimes from place and sometimes from parentage, but in general place is the most certain criterion; it is what applies in the United States."

Inherited allegiance to the Spirit of the Revolution, as articulated in the Declaration of Independence, is all that is required to be an Art. II, §1, cl. 4 natural born Citizen.

ex animo
davidfarrar

davidfarrar 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."

This statement may be true, but it cannot mean these two terms are synonymous. The first implies Cokean perpetual subjectship, while the latter requires Lockean consent of citizenship.

ex animo
davidfarrar

MichaelN said...

Linda siad...

"For me, the lack of discussion of the term NBC, would indicate an acceptance of the law at the time in the Colonies, as the English born there were NBS, so would the Americans be NBC. As quotes in WKA:

"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 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."


Linda then you might explain how the "common law" referred to by SCOTUS in the Minor court was seen to hold doubts as to whether a native-born child to alien parents was even a citizen at all and further that the SCOTUS saw merits in these doubts by stating that these doubts were still yet to be solved.

i.e. it could not have been the English common law, given that ECL would have no doubts that native-birth was all that was required to make a NBS.

What have you to say about the USCIS recognizing TWO types of born citizens?

Linda said...

@Mario Apuzzo

I agree that McCain is an NBC, he was a citizen at birth.

I have read the paper by Tribe and Olson in favor and another that was opposed. I understand the latter's argument, but I disagree.

MichaelN said...

Linda, this is not a repeat of my last post.

Linda said...

"For me, the lack of discussion of the term NBC, would indicate an acceptance of the law at the time in the Colonies, as the English born there were NBS, so would the Americans be NBC. As quotes in WKA:

"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 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."

According to Lord Coke per Calvin's case (which we all know was the benchmark case referenced) English common law held that, being born in the allegiance of the King was to be "born under the ligeance of a subject", in the case of an alien-born parent, native-birth was also required.

So the reasoning as taken from ECL was that...

1) If one was born off-shore, to US citizen parents, then one was a NBC. (hence the first naturalization act of 1790 deeming such children to be NBCs)

2) If one was born to US citizen parents and native-born, then one was a NBC.

3) If one was native-born to parents who were NOT citizens, then the child was alien born.

Quoting Lord Coke (Calvin's case)

"There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due by nature and birthright, and is called alta ligeantia42a and he that oweth this is called subditus natus."

Note, TWO elements to qualify as a natural born subject of England.

i.e. nature and birthright.

Although SOME of the English common law was useful to the Framers, there were other very strong principals which the Framers were influenced by; after all, they were building a republic in rejection of monarchical rule.

The US did not adopt an automated naturalization practice like the English, where the English accepted friendly aliens as subjects, the US did not accept friendly alien visitors as citizens, they had to be naturalized to be a US citizen.

So, as you can see, in 17th and 18th century according to BOTH English and US common law, for a child who is born native, to alien-born parents, to be a natural born subject/citizen, then that child would have to be "born under the ligeance" of a subject/US citizen father.

"There be regulary (unlesse it be in special cases) three incidents to a subject born.
1. That the PARENTS be under the actual obedience of the king.
2. That the PLACE of his birth be within the king’s dominion.
And 3. the time of his birth is chiefly to be considered;"


"And it is to be observed, that it is nec coelum, nec solum,54 neither the climate nor the soyl, but ligeantia and obedientia that make the subject born: for if enemies should come into the realm, and possess a town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King."

So can you see how your quote taken from WKA means something other than what you wish it means?

Linda, use your common sense, as did the Framers, there is no way the framers were going to settle for anything less than one who in their minds would be paramount in loyalty, dedication and attachment as a home-grown, who would be the best possible US citizen that they could dream-up, and that MUST be one who is born to US citizen parents AND native-born to US.

i.e. one with as far as possible be with ZERO potential for foreign influence, loyalty and claim.

You are dreaming if you think the Framers would settle for anything less.

davidfarrar said...

AS far as John McCain's Art. II, §1, cl. 4 natural born Citizen status, I thought there was some dispute over exactly where he was born: In Colón, Panama, or in the U.S. Panama Canal Zone?

Of course to us Vattelites, it wouldn't make any difference. It would make a different to all you natural-born subjects.

ex animo
davidfarrar

Mario Apuzzo, Esq. said...

davidfarrar,

Where John McCain was born in Panama is a red herring, i.e., not relevant. It simply does not matter because he was born to U.S. citizen parents who were “serving the armies of the state.”

davidfarrar said...

Yes...de Vattel again.

Justice Thomas was correct: You don’t have to be born in the United States to be born an Art. II, §1, cl. 4 'natural' born Citizen. If this was not so, John McCain would not have been found to be a natural born Citizen.

Homeland Security Secretary Chertoff stated as much in McCain's Senatorial hearing on the non-binding Resolution SR 511:

“'My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen,' Chertoff replied.

'That is mine, too,' said Sen. Leahy, Chairmen of the Senate Judiciary Committee."


ex animo
davidfarrar

davidfarrar said...

But if you were not proceeding under de Vattel or by international law, where John McCain was born, i.e. in a hospital in Colón, Panama, or inside of the U.S. Panama Canal Zone, would presumably, make all the difference in the world; am I not right?

ex animo
davidfarrar

Mario Apuzzo, Esq. said...

davidfarrar,

You said:

“But if you were not proceeding under de Vattel or by international law, where John McCain was born, i.e. in a hospital in Colón, Panama, or inside of the U.S. Panama Canal Zone, would presumably, make all the difference in the world; am I not right?”

The Founders and Framers did not view the law of nations as “international law.” In fact, they actually incorporated it into Article III “laws of the United States” which made it part of the law of the land. As such, this law became part of national common law. In understanding and applying the law of nations, we also know that the Founders and Framers were heavily influenced by Emer de Vattel and his treatise, The Law of Nations, which he published in 1758.

The correctness of any law today should not be controlled by the origins of that law. Rather, what should control is whether that particular law is sound as written and whether it has relevant application today. To characterize the common law that defines a “natural born citizen” as coming from de Vattel or being international law is to argue by appealing to foreign origins that that law is somehow not valid. This argument is fallacious and has no basis given how our nation adopted legal rules provided by Vattel and even incorporated the law of nations into our national common law.

Under Minor and other U.S. Supreme Court cases, the constitutional definition of a “natural born citizen” comes from American common law. Given the definition that Minor and these other Courts have provided, we can see that that definition has its origins in natural law, the law of nations, and Vattel. Some of these courts even directly cite and quote Vattel, Section 212, where he defines a “natural-born citizen.” This common law definition of a “natural born citizen” is the only definition of the clause that our U.S. Supreme Court has ever confirmed and accepted. See The Venus (Chief Justice Marshall concurring), Inglis, Shanks, Dred Scott (Justice Daniels concurring), Minor, and Wong Kim Ark (majority and dissenting opinions). If we have accepted Vattel’s Section 212 to define a “natural born citizen,” there is no logical reason for not also accepting his Section 217 which is relevant to that issue and which provides the “born our of the country in the armies of the states” explanation of being “reputed born” in the country. So, I do not agree with your comment about the possibility of “not proceeding under de Vattel or by international law” when it comes to McCain.

Furthermore, if John McCain had been born in Panama to alien parents or even just one U.S. citizen parents, being born with alienage, he would have been a born “citizen,” but not a “natural born citizen,” for he would only have met the requirements to be a “citizen” at birth under a Congressional statute and not the requirements to be a “natural born Citizen” under national common law, i.e., born in a country to parents who were its citizens at the time of the child’s birth. Likewise, anyone who is a born “citizen” under the Fourteenth Amendment (presumably Barack Obama), which defines a “citizen” at birth and not a “natural born citizen,” who, also does not satisfy the national common law definition of a “natural born citizen” (again Barack Obama) is not an Article II “natural born Citizen.”

Teo Bear said...

Dear Linda,

Part 1.

You said " Since NBC means citizen at birth, then all children born in the US are NBC."

Can you please tell me where this is defined in national law?

As I researched this term I find it in only one place, Naturalization Act of 1790 and that stated "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:"

Since this is the only mention of this term in national law, one could reasonably read this, as a natural born citizen is the child of citizens, regardless of place of birth. Is this not true?

You use the term citizen at birth as it always existed, but I cannot find this term in any law until it first appears in the Nationality Act of 1940. Clearly the 14th Amendment, which predates the Act of 1940, gives rise to citizenship at birth, but prior to the 14th Amendment was not national citizenship a derivative of State citizenship?

I am assuming that you will answer in the affirmative since the whole rationale behind the citizenship clause of the 14th Amendment was to prevent states from withholding state citizenship from the newly freed slaves and without state citizenship they would not have national citizenship. In fact one can rightful say that the 14th Amendment strips states of the sovereign right to bestow citizenship on the people born there and makes it a sovereign right of the Nation to bestow a national citizenship and from this national citizenship the citizens derive state citizenship. The fact is the 14th Amendment flipped the paradigm of primary from citizenship from the State to the Nation, to the Nation to the state.

Now you have later quoted the Wong Kim Ark decision, "But citizenship by birth is established by the mere fact of birth under the circumstances defined in the Constitution. Every person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization. " The fact is citizenship by birth being subject to the jurisdiction was only defined in the Constitution by the 14th Amendment.

In fairness to the point you are trying to make, Justice Waite in Minor does say that there was a avenue to add citizens by birth prior to the 14th Amendment, and that was the natural born citizen. However, Justice Waite defines the characteristic of a natural born citizen as being the child of citizen parents. Again I point to the Naturalization Act of 1790 citizen parents were the requirement for children born overseas to be given the character of natural born. Is the Naturalization Act of 1790 extending the jurisdiction of the United States to the parents, and did the Naturalization Act of 1795 remove expatriates for US jurisdiction?

Continue to Part 2.

Teo Bear said...

Part 2, Continue from Part 1

However you said that the 14th Amendment did not alter the meaning of a natural born citizen. So let us keep a pre-14th Amendment frame of reference.

Then in 1790 if you were born a citizen of the State Virginia, you became a citizen of the United States. However, Virginia's citizenship laws (written by Thomas Jefferson) required that the custodial parent be a citizen in order for the child to be a citizen at birth.

The wording of the early naturalization laws such as Naturalization Act of 1795 would support that, as it 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."

This law would make sense if the children of aliens were not citizens of the States at birth, otherwise the law would have distinguished the “native born” children from “alien born” children.

This idea is very similar to the debates of the 14th Amendment where the Congressional proponents of it defined subject to the jurisdiction as being much different then what the WKA court considered. In fact the framers of the 14th Amendment say “subject to the jurisdiction” in a light so different than Justice Gray did, Justice Gray had to exclude their debates on the term and that is in the ruling.

Then you go on to say, “Since WKA could not be naturalized, if the Court found that he was a citizen, it had to be a NBC. WKA was not running for president, but NBC is one of the requirements.”

This is mere conjecture on your part. The Court found Wong Kim Ark to be a “citizen of the United States,” and if this is carried over into Article II, he would be a citizen of the United States, but not at the time of adoption of the Constitution. Words in a legal decision are important and if he were a natural born citizen, would not the Court need to find him as such? Am I reading this wrong?

You make references to the WKA Court’s extensive history of US Citizenship; you must excuse me, as I did not see that. I did however see Justice Waite spend considerable time on the history of citizenship with respect to the constitutional terms of citizenship in Minor v. Happersett, perhaps you are confusing the two.

I do find the opinion of one SCOTUS case relevant to Article II, which is the Perkins v. Elg case where the court references the Steinkauler's Case, 15 Op.Atty.Gen. 15. Here the Court lays out the facts of the case, in which the child of naturalized American parents, born in the United States can be President. It is important to note that the facts also layout a chronology which shows that the child was born after the father naturalized, and the mother if not a citizen of the United States at the time of her marriage to Steinkauler would have been granted citizenship when Steinkauler was naturalized as was the law at the time.

Continue to Part 3

Teo Bear said...

Part 3, continued from Part 2

Now back to Wong Kim Ark, did not the Court use as criteria the established fact that his parents had taken up permanent domicile and residence in the United States, as being subject to the jurisdiction? Would you agree with that?

Now the problem many see in regards to the President using Wong Kim Ark decision as being a natural born citizen is the fact that his father never took up permanent domicile or residence. If you were to look at the Selective Service statues, all male citizens and permanent residents must register, in fact even illegal aliens are required by law to register. It appears that the presence and intention to reside and domicile in the United States does in fact make you subject to the jurisdiction.

However, there are only two classes of people who are not required to register. From the Selective Service website it states.

Noncitizens who are not required to register with Selective Service include men who are in the U.S. on student or visitor visas, and men who are part of a diplomatic or trade mission and their families. Almost all other male noncitizens are required to register, including illegal aliens, legal permanent residents, and refugees. The general rule is that if a male noncitizen takes up residency in the U.S. before his 26th birthday, he must register with Selective Service.

This is from Title 50, § 453, “The provisions of this section shall not be applicable to any alien lawfully admitted to the United States as a nonimmigrant under section 101(a)(15) of the Immigration and Nationality Act, as amended (66 Stat. 163; 8 U.S.C. 1101), for so long as he continues to maintain a lawful nonimmigrant status in the United States.”

Since the President’s father never applied for permanent residency he was not subject to the jurisdiction of the United States and that is the problem for many. This little problem would convey the full weight and responsibilities of the British Nationality Act upon his son, and that begs the question is he a natural born citizen being born not under the jurisdiction of the United States.

davidfarrar said...

Question: If JEB's three siblings were all born prior to their mother's (JEB's wife)naturalization; can any meet the criteria of an Art. II, §1, cl. 4 natural born Citizen?

ex animo
davidfarrar

davidfarrar said...

Teo Bear, if you will permit me:

You said: "Now back to Wong Kim Ark, did not the Court use as criteria the established fact that his parents had taken up permanent domicile and residence in the United States, as being subject to the jurisdiction? Would you agree with that?"

My answer is: Yes, and no. Yes, the birth of Wong Kim Ark would be subject to US jurisdiction at birth, but not solely. By treaty, China also had jurisdiction at birth.

ex animo
davidfarrar

MichaelN said...

Part 1 of 2 parts
I have more to add (and a few corrections) to my previous post, where I said ....

Linda said...

"For me, the lack of discussion of the term NBC, would indicate an acceptance of the law at the time in the Colonies, as the English born there were NBS, so would the Americans be NBC. As quotes in WKA:

"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 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."

@ Linda, according to Lord Coke per Calvin's case (which we all know was the benchmark case referenced) English common law held that, being born in the allegiance of the King was to be "born under the ligeance of a subject", in the case of an alien-born parent, native-birth was also required.

The reasoning on the part of Justice Swayne, per the piece you quoted, as cited in WKA, can ONLY be based on the common law holding per Lord Coke in Calvin's case, where it was THE MOST IMPORTANT ESSENTIAL REQUIREMENT for a child to be born "under the ligeance of a subject" to be a natural born subject.

Going by Justice Swayne's reasoning and applying his observation of the ECL to a US scenario.....

1) If one was born off-shore, to US citizen parents, then one was a NBC. (hence the first naturalization act of 1790 deeming such children to be NBCs)

2) If one was born to US citizen parents and native-born, then one was a NBC.

3) If one was native-born to parents who were NOT citizens, then the child was alien born.

(cont'd)

MichaelN said...

Part 2 of 2 parts
Quoting Lord Coke (Calvin's case)

"[151. ][Ed.: An alien born is of foreign birth or foreign allegiance,...."

"There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due by nature and birthright, and is called alta ligeantia42a and he that oweth this is called subditus natus."

Note, TWO elements to qualify as a natural born subject of England.

i.e. nature and birthright.

Although SOME of the English common law was useful to the Framers, there were other very strong principals which the Framers were influenced by; after all, they were building a republic in rejection of monarchical rule.

The US did not adopt an automated naturalization practice like the 17th century English, where the English accepted friendly aliens as subjects, i.e. the US did not accept friendly alien visitors as citizens, they had to be naturalized to be a US citizen.

So, as you can see, in 17th and 18th century according to BOTH English and US common law, for a child who is born native, to alien-born parents, to be a natural born subject/citizen, then that child would have to be "born under the ligeance" of a subject/US citizen father.

Lord Coke - Calvin's case...
"There be regulary (unlesse it be in special cases) three incidents to a subject born.
1. That the PARENTS be under the actual obedience of the king.
2. That the PLACE of his birth be within the king’s dominion.
And 3. the time of his birth is chiefly to be considered;"

"And it is to be observed, that it is nec coelum, nec solum,54 neither the climate nor the soyl, but ligeantia and obedientia that make the subject born: for if enemies should come into the realm, and possess a town or fort, and have issue there, that issue is no subject to the King of England, though he be born upon his soyl, and under his meridian, for that he was not born under the ligeance of a subject, nor under the protection of the King."

Linda, can you see how your quote taken from WKA means something other than what you wish it meant?

Linda, use your common sense, as did the Framers, there is no way the framers were going to settle for anything less than one who in their minds would be paramount in loyalty, dedication and attachment as a home-grown, who would be the best possible US citizen that they could dream-up, and that MUST be one who is born to US citizen parents AND native-born to US.

i.e. one with as far as possible be with ZERO potential for foreign influence, loyalty and claim.

You are dreaming if you think the Framers would settle for anything less.

Mario Apuzzo, Esq. said...


Linda @1/10/13 11:22 PM,

I of V

Minor said that it was not “necessary to solve these doubts,” i.e., whether a child born in the country to alien parents was a “citizen.” I have maintained that Minor’s reference to “citizen” is just that, a reference to “citizen,” and not a reference to “natural-born citizen.” If the reference was to “natural-born citizen,” given that the Founders and Framers used the “natural born Citizen” clause as one of the requirements to be eligible to be President, they would have had to solve those doubts so that they could all agree on what the constitutional eligibility requirements were going to be and so the nation would know who could be eligible to be President in the future. But we know from the record of constitutional debates that there was no debate on the meaning of a “natural born Citizen.” There is no record of a debate on the requirements to be a “citizen” from birth during the Constitutional Convention. The drafting Committee of Eleven introduced the clause. The Convention as a whole adopted the clause without discussion or objection.

You claim that there was no debate on the clause because the Founders and Framers adopted the English common law meaning of a “natural born subject.” You provide this quote from Wong Kim Ark as proof of your position:

"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 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."

Wong Kim Ark, citing and quoting Justice Noah H. Swayne in United States v. Rhodes, 27 F. Cas. 785 (Cir. Ct. Ky 1866). There are many problems with your position.

First, here is the full quote:

“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 [**18] as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. 2 Kent, Comm. 1; Calvin’s Case, 7 Coke, 1; 1 Bl. Comm. 366; Lynch v. Clarke, 1 Sand. Ch. 583.

***

‘Citizens’ under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of congress.' 1 Kent, Comm. 292, note. We find no warrant for the opinion 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.”

Note that you left off the part about the exceptions to the general rule on who can be a “citizen” and that when Justice Swayne said there was no warrant to change the principle of the common law, he was referring to the Kent quote which only talked about a “citizen,” and not “natural born Citizen.” These are critical omissions. The first is important because there is no foreign diplomat or military invaders exceptions to being a “natural born Citizen,” for the parents always have to be citizens. The second is important because it shows that when Justice Swayne said there was no warrant to change the principle of the common law, he was referring to a “citizen” and not “natural born Citizen.” Hence, we can see that Justice Swayne quote actually referred to a “citizen,” and not a “natural born Citizen.”

Continued . . .

Mario Apuzzo, Esq. said...

II of V

Second, the problem that you have with simply relying on this quote to provide any definition of a “natural born Citizen” is that the quote is dicta. The Rhodes case had nothing to do with defining a “natural born Citizen.” What the case was about was whether the indictment was valid, whether the case made in the indictment existed under the Civil Rights Act of 1866, and whether Congress had the constitutional power to pass the Act and thereby make freed slaves “citizens of the United States.” Most of the case was devoted to the third question, with the court examining the Thirteenth Amendment and the Civil Rights Act which was passed to enforce that amendment. The court never examined what an Article II “natural born Citizen” is nor did it need to. Hence, Rhodes is not authoritative on interpreting the “natural born Citizen” clause.

Third, in relying on this quote to define a “natural born Citizen,” you beg the question. Justice Gray in Wong Kim Ark defined what “born in the allegiance of the United States” means in connection with defining the Fourteenth Amendment’s “subject to the jurisdiction thereof” clause and its “citizen of the United States” at birth. But neither Justice Swayne in Rhodes nor Justice Gray in Wong Kim Ark defined what “born in the allegiance of the United States” means as it pertains to defining a “natural born Citizen.” Justice Swayne mentioned “the common law of this country” and “the common law of England.” He did not say those laws were the same regarding defining what “born in the allegiance of the United States” means. On the contrary, this is what Justice Swayne said regarding any notion that the English common law defined a “natural born Citizen,” which shows that he did not have any such belief:

“The constitution uses the words 'citizen' and 'natural born citizens;' but neither that instrument nor any act of congress has attempted to define their meaning. British jurisprudence, whence so much of our own is drawn, throws little light upon the subject . . . . Blackstone and Tomlin contain nothing upon the subject.” Id. at 788. We can see that the court did not tell us that we derived the definition of a “citizen” and a “natural born Citizen” from the English common law.

Minor, which specifically referred to a “natural-born citizen,” in effect held that “born in the allegiance of the United States” means being born in the country to parents who were its “citizens.” 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 his decision in Minor what Justice Swayne meant in Rhodes by “born in the allegiance of the United States” as it pertains to being a “natural-born citizen.” Clearly, he did not look to the English common law to define “born in the allegiance of the United States” as it pertains to defining a “natural-born citizen.” In fact, he distinguished the English common law from “the common law of this country.” Additionally, Inglis v. Sailors’ Snug Harbor, 28 U.S. 99, 120 (1830), had long established that with the American Revolution with England

Continued . . .

Mario Apuzzo, Esq. said...

III of V

and with the new nation and society coming into existence, the English common law’s “broad doctrine of allegiance” and denial of “the right of expatriation” no longer applied in the United States. Also, we can see that Justice Swayne in Minor did not look to the English common law to define a “natural-born citizen.” Rather, he looked to the law of nations as codified by Vattel in Section 212 of his The Law of Nations for the definition of a “natural-born citizen.” Wong Kim Ark cited and quoted Minor and this definition of a “natural-born citizen” without objection and, when applying this language from Justice Swayne in Rhodes to determine if Wong was a Fourteenth Amendment “citizen of the United States,” distinguished Wong to be as much as “citizen” as a “natural-born citizen,” but not himself a “natural-born citizen.” See The Slaughterhouse Cases 16 Wall. 36, 73 (1873) (“The phrase, ‘subject to its jurisdiction’ was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”). Justice Gray in Wong Kim Ark got around this case by finding that it was not meant to exclude children born in the United States to alien parents from being “citizens of the United States” under the Fourteenth Amendment, not mentioning anything about “natural born Citizen” under Article II).

Fourth, the meaning of a “natural born subject” was not clear, for the English not only included within that class persons who became “subjects” from birth, but also persons who became “subjects” by naturalization after birth. The English maintained that a naturalized alien was “to all intents and purposes a natural-born subject.” Co. Litt. 129.

Fifth, the English naturalized person at birth and called them “natural born subjects.” In the United States, it has always been accepted that any person recognized and treated as being naturalized is not a “natural born Citizen.”

Sixth, as Justice Swayne explained, the clause “natural born citizen” did not exist in the English common law. Rather, that law used the clause “natural born subject.” There is a critical constitutional distinction between a “citizen” and a “subject,” for the former was tied to the new republic with its president elected by the consent of the people whereby the latter was tied to a monarchy with its King assuming power through hereditary blood. The English system of subjecthood was coercive. That system, with few exceptions, imposed subject status upon children born within the King’s dominion, regardless of whether their parents were aliens or non-aliens. The system was coercive with respect to children who were born to aliens who were permanently or even jus temporarily located in the King’s dominion. The English avoided the fact that parents were aliens by considering them, except for parents who were foreign diplomats or military invaders, subjects of the King, even owing him a local and temporary allegiance while physically present within his dominion. The birth status that English law imposed upon children born in the King’s dominion to aliens was “subject born,” or what was called “subditus natus.” Being a subject born was imposed from the moment of birth and was indelible, meaning it lasted until death, even though the parents of the child were aliens. Since the King could only come from royal blood, there was no concern as to his natural allegiance and loyalty (“ligeantia naturalis”) to the English people.

Continued . . .

Mario Apuzzo, Esq. said...

IV of V

But in the new America, things were different. Starting with the American Revolution, citizenship was consent based. Since no one was born an American citizen, one voluntarily chose to be or not to be an American citizen by either adhering or not adhering to the American Revolution. Minor children followed the choice made by their parents. That choice was carried forward for all future generations and subject to expatriation. With the choice being consent based and not indelible, it did not last until death, unless one so chose. If one desired to cast off that choice, one was free to take on another. So, citizenship, from birth, was consent based, with that consent inherited at birth from one’s parents who had already manifested their consent by choosing to be citizens and not merely aliens, who had not sworn any allegiance and loyalty to the United States. And that choice did not continue until death, for a U.S. citizen had the right to expatriate and take on a different and foreign allegiance and citizenship. Moreover, with the president coming from the people, and understanding that “[b]irth and allegiance go together” (Rhodes, 789), unlike English “subjects,” who had no say in the matter, Americans needed an eligibility requirement which would assure them as best it could that their president and commander of the military would be in allegiance and loyalty only to them and the new republican nation. And they were so concerned about making sure that their future presidents (those born after the adoption of the Constitution) met that very strict allegiance and loyalty requirement that they provided in their new Constitution at Article II, Section 1, Clause 5 that, “Citizens of the United States” would no longer be eligible to be President, and that [n]o Person except a natural born Citizen . . . shall be eligible to the Office of President.”

Seventh, the Founders and Framers rejected all vestiges of monarchy and titles of nobility. Using the definition of an English common law “natural born subject” would have perpetuated such titles, for the English common law allowed children to be born to alien parents with royal titles (provided the parents were not foreign diplomats or military invaders) and for those children to inherit and maintain those titles while still being considered an English “subject.”

Eight, there is no indication from the unanimous U.S. Supreme Court in Minor that the Framers adopted the English common law definition of a “natural born subject.” Rather, what Minor described as a “natural-born citizen” was found in the law of nations which became American common law on, among other things, matters of citizenship. Simply stated, there is not one iota of evidence in Minor that the Founders and Framers looked to the English common law to define a “natural-born citizen.”
Hence, the Founders’ and Framers’ silence probably shows a general understanding at the time that the only definition of a “natural born Citizen” came from the law of nations which they adopted as American common law which was a child born in the country to citizen parents. If that had not been the original public meaning and general understanding, there would have been significant debate as to the meaning of the clause or as to other definitions of the clause which in the end provided the eligibility requirement for the President and Commander in Chief, a critical office that was going to wield enormous civil and military power. While there could be doubt as to who was going to be a “citizen of the United States,” leaving that up to Congress or even the courts to decide in the future (these doubts which concerned a “citizen” and not a “natural-born citizen” were confirmed by Minor), the Founders and Framers simply would not have

Continued . . .

Mario Apuzzo, Esq. said...

V of V

used the clause “natural born Citizen” if it left any doubt as to its meaning and not have resolved those doubts given the enormous civil and military power that presidents were going to wield. They would have used a term which created no doubt as to the citizenship status required of the person to fill that office, or if there were any doubts about its meaning, they would have debated those doubts and resolved them. Minor said that “there have been doubts” whether a child born in the country to alien parents was a “citizen.” If such doubts existed regarding such a child and if it was their intent to include such a child as a “natural born Citizen,” the Founders and Framers would have debated whether such a child was a “natural born Citizen.” Additionally, if such doubts existed concerning whether that child was a “citizen,” the Founders and Framers would not have included such a child as a “natural born Citizen.”
And for this reason, the Founders and Framers also would not have been referring to the English common law concept of “natural born subject,” which not only included persons truly born subjects, but also those naturalized as such at birth and after birth. Basing the “natural born Citizen” clause on such an English common law concept would have introduced confusion and doubt which would have had to be resolved through debate. Hence, the Founders and Framers would most likely have had to debate the clause’s meaning if that would have been their intent. But we know from the historical record that no such debate occurred. Hence, they did not adopt the English common law meaning of a “natural born subject” as their definition of an Article II “natural born Citizen.”

davidfarrar said...

While there is no difference in being born a citizen of a state, either by English or American common law.

Being born a citizen of a group of 'united' sovereign states requires common consent and conformity to international law.

ex animo
davidfarrar

Linda said...

@Commenters

I appreciate your responses, posts, etc. I intend to address them when I am able. I have the flu.

Robert 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 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."

So, that says it all. By his own stipulation and by the records he has so far submitted, Obama was born subject to the King and is, therefor, a natural born subject - of the King.

Because of his British/Kenyan father he was not born and has never been in allegiance with the United States. In fact, his parents and grandparents hated the USA, his dad was actually thrown out, and all of his mentors and adult role models - chosen by his parents and himself - have been anti-USA.

So, by British Common Law, US Law, and the Law of Nations, Obama is not eligible to be president of the USA.

Perhaps when the Queen dies he can go talk to the Brits. Yes, I know the heir is already apparent. But, who knows; maybe Barack can challenge the him to a teleprompter reading duel, go one-on-one in basketball, or compare pecs to see whose glint most under the sun. If he can fool 25% of Americans and befuddle all of our Governors, Attorneys General, Senators, Representatives, and Justices he may be able to fool just enough Brits into making him King, too.

davidfarrar said...

@Robert,

The only thing missing now is a court willing to interpret Art. II, §1, cl. 4 natural born Citizen in the spirit of the Revolution.

ex animo
davidfarrar

Ray said...

Samuel Adams' "Report Of The Committee of Correspondence To The Boston Town Meeting, Nov 20, 1772" is interesting.

This predates the Declaration of Independence and discusses The Natural Rights of the Colonists.

http://www.scribd.com/doc/42057438/The-Rights-of-the-Colonists-Samuel-Adams

After Sections I and II which discuss The Rights of the Colonists as Men, and, The Rights of the Colonists as Christians, is Section III which discusses The Rights of the Colonists as Subjects. What Section III makes clear is that the Colonists, as well as all Englishmen, were struggling to secure their natural rights.

To this day the English have not secured explicit recognition of their natural rights. English common law has no set standard but is the "law" of stare decisis.

The United States was founded with explicit recognition of natural rights. The government was framed to secure those rights. We have a set standard: The Declaration of Independence and our government: The Constitution is specifically to secure those rights.

This foundation of natural rights is "American exceptionalism"

While certain mechanisms of government may have been developed or evolved in English common law, the founding principle of our nation and government is natural law.

The government we framed includes only some of the those mechanisms and does so specifically, but its foundational principle is natural law.

Adams' Report is a strong statement of natural law principles. It makes clear that natural law - the Law of Nature and of Natures God - was both understood and a foundational principle of the nascent republic.

Those natural law principles were later declared and given force at our Founding by the Declaration of Independence.


Hat tip Yosemitest at FreeRepublic for the sribd document.

Mario Apuzzo, Esq. said...

Ray,

Thank you to mikewinddale who posted Samuel Adams’ report to scribd, Yosemitest at FreeRepublic for noticing it, and to you for sharing that information with us here. What is especially noteworthy about Samuel Adams’ report of 1772, as it applies to defining a “natural born Citizen,” is the following: he cites to both Blackstone and Vattel, but incorporates into his writing Vattel’s concepts as presented in his treaties, The Law of Nations (1758). The concepts include, but may not be limited to: “natural rights,” “law of nature,” “duty of self-preservation,” “leave the society they belong to, and enter into another,” “social compact,” “body politic,” “civil society,” “[t]he supreme power cannot justly take from any man any part of his property without his consent,” “law of nations,” “citizens, or members of society,” “preservation of the society,” “free states,” “[a] commonwealth or state is a body politic, or civil society of men, united together to promote their mutual safety and prosperity by means of their union,” religious “toleration ought to be extended to all whose doctrines are not subversive to society,” “The Roman Catholics or Papists are excluded by reason of such doctrines as these,” “his natural right to worship God according to the dictates of his own conscience;” “liberty of conscience allowed in the worship of God,” “independent judges,” and “rule of justice.” These ideas may all be found in Vattel’s, The Law of Nations. See Preliminaries; Book I, Chapter I, II, III, IV, XII, XIII, and XIX.

These concepts are not, as a whole, found in the writings of Blackstone. This report is proof that Samuel Adams not only carefully read and studied Vattel, but also accepted his fundamental ideas about how individuals should behave, society is formed, and nations act. This would include how we were to determine who were the members of civil society, who Vattel called the “citizens” and the “native, or natural-born citizens” (being children born in the country to those citizens). Vattel, Section 212, The Law of Nations (1758).

MichaelN said...

Samuel Adams was a second cousin to 2nd US President John Adams.

It seems that Vattel's popularity continued....

"John Adams, the future delegate to the Continental Congress, second President of the U.S., and father of President John Quincy Adams, recorded in his Diary on Feb. 1, 1763, that after spending the day frivolously, instead of reading and thinking, ``The Idea of M. de Vattel indeed, scowling and frowning, haunted me.'' In 1765, Adams copied into his Diary three statements by Vattel, ``of great use to Judges,'' that laws should be interpreted according to the intent of the author, and every interpretation which leads to absurdity should be rejected.

http://east_west_dialogue.tripod.com/vattel/id3.html

Ergo: The notion is ABSURD that the Founding Fathers and Framers were lax and derelict in their duty and imperative to protect as far as possible, the office of POTUS in the new found republic, from any foreign influence, loyalty or claim, by allowing the children born of NON-citizens to be eligible for the office of POTUS.

rxsid said...

There is another, earlier reference to Samuel Adams referencing Vattel. In 1771.

http://www.freerepublic.com/~rxsid/

The colonists were reading the "celebrated" Vattel in 1764.

MichaelN said...

Thanks for the very informative article rxsid.

rxsid said...

"There is another, earlier reference to Samuel Adams referencing Vattel. In 1771.

http://www.freerepublic.com/~rxsid/

The colonists were reading the "celebrated" Vattel in 1764."

Mario Apuzzo, Esq. said...

rxsid,

I would like to echo MichaelN's comment. Your article is very well done, presenting a clear picture of key events as they relate to Emer de Vattel's influence over the Founders and Framers and Vattel's undeniable connection to the "natural born Citizen" clause.

Mario Apuzzo, Esq. said...

Linda @January 7, 2013 11:54 AM,

I of II

You keep repeating the James Madison quote as evidence for what you contend to be the correct definition of a “natural born Citizen.”

I have already addressed this point numerous times on this blog, including to you specifically.

Again, your reliance on this quote is misplaced. Madison’s place of birth as “the most certain criterion” of allegiance quote does not define an Article II “natural born Citizen.” You are using his quote out of context. William Smith was born before July 4, 1776 and under Article I, Section 2 needed to be a “Citizen of the United States” for seven years to be a Representative. The issue never was nor did it need to be whether he was a “natural born Citizen.” The issue of whether Smith was a “natural born Citizen” was never raised or discussed. Hence, Madison’s statement only applies to those born before July 4, 1776 who became “Citizens of the United States” by birth in the colonies and by adhering to the American Revolution, not to those born after July 4, 1776 wanting to be “natural born Citizens.”

On the contrary, we know that for those born after July 4, 1776, national citizenship changed. For example, Article II, Section 1, Clause 5 allowed people like the Founders, Framers, and William Smith, who were born before the adoption of the Constitution, to be “Citizens of the United States” and eligible to be President. But for those born after its adoption, it said: “No person except a natural born Citizen was eligible to the Office of President.” Founder historian, David Ramsay, informed us that for those born after that date, their right to citizenship from birth required birth to citizen parents. America’s Blackstone, St. George Tucker, said the same. The great U.S. Supreme Court Justice, John Marshall, in the Venus, said the same. Article I, Section 8, Clause 4 gave to Congress the exclusive power over naturalization (the states could no longer naturalize either through the English common law or by state statute persons to become national citizens). Congress passed naturalization acts (1790, 1795, 1802, and 1855) treating children born in the United States to alien parents as alien born and allowing them to become “citizens of the United States” at the time their parents naturalized if the minor child was dwelling in the United States. The Madison Administration in the James McClure citizenship case of 1811 confirmed that birth in the United States to alien parents did not make one a “citizen of the United States,” let alone a “natural born Citizen.” It confirmed that a child’s parents had to naturalize to make their minor children “citizens of the United States” after their birth. The Fourteenth Amendment was passed, but it was only intended to and only did define a “citizen of the United States” through birth in the United States or through naturalization after birth (requiring “subject to the jurisdiction” of the United States through at least birth to domiciled and resident alien parents), not a “natural born Citizen” (requiring birth to citizen parents). The U.S. Supreme Court (the unanimous U.S. Supreme Court in Minor and both the majority and dissent in Wong Kim Ark) confirmed that the Founders and Framers defined a “natural-born citizen” under national common law which provided that a “natural-born citizen” was a child born in the country to citizen parents, thereby also confirming the three constituent elements of being a “natural-born citizen,” i.e., time (at the moment of birth), place of birth (in the country), and parents (U.S. citizen parents). There is no U.S. Supreme Court decision which demonstrates that the definition of a “natural born Citizen” comes from any source other than American common law which has always showed and still shows that the clause means a child born in the country to parents who were citizens of the country at the time of the child’s birth.

Continued . . .

Mario Apuzzo, Esq. said...

II of II

This U.S. Supreme Court definition, as handed down to us through the ages and U.S. history, is settled law and the supreme law of the land. This supreme constitutional law does not get changed by lower federal or state courts as they have attempted to do with Barack Obama, without a constitutional amendment or at least an opinion of our U.S. Supreme Court. Even assuming that Barack Obama was born in Hawaii (place of birth test which he has not yet conclusively satisfied), he fails the time test (at the moment of his birth) and citizen parents test (he was not born to a U.S. citizen father), making him a “citizen of the United States” at birth under the Fourteenth Amendment, but not a “natural born Citizen” under Article II. He is therefore not Article II eligible to be President and now only acts and would continue to act as a De Facto President. Chief Justice John Roberts needs to reflect on our history and constitutional law before the moment that he again swears Barack Obama as our next president.


thalightguy said...

Would a person have standing to challenge Obama’s eligibility if the person’s Employer cancelled or downgraded their group health insurance rather than comply with certain aspects of the affordable health care act?

Mario Apuzzo, Esq. said...

thalightguy,

Your question: "Would a person have standing to challenge Obama’s eligibility if the person’s Employer canceled or downgraded their group health insurance rather than comply with certain aspects of the affordable health care act?"

Under rules of standing, the person has to show that he/she has been personally injured (injury) by the defendant’s conduct (causation) for which the court can provide a remedy (remedy). Under your hypothetical, please explain how the person is injured and how Obam’s conduct caused the injury.

Robert said...

I would hope that Justice Roberts would reflect on the Biblical quote, "What does it benefit a man if he gain the whole world, but lose his soul?"

and think likewise upon -

"What value is there in gaining a position of great honor and trust if one uses it to betray his children and his country?"

Lines will be drawn and legacies will be written into our history books. Justice Roberts and all of the rest of our public servants need to decide if they're going to be included in the George Washington column or the Benedict Arnold column.

thalightguy said...

Maria @ January 17, 2013 at 11:41 PM,

The Person would have been injured over the loss of their health insurance; this would be due to a result of the AHC Act.

Obama is the one who signed the AHC Act into law, when in fact he did not have the authority to do so because he is constitutionally ineligible to serve as President because he does not meet the “natural born citizen” requirement.

The remedy would be to find the AHC Act invalid because of such, which would result in the Persons employer reinstating their Group Health Insurance Plan.

Mick said...

In Florida no direct harm needs to be proved to achieve standing, because the election contest statutes themselves give any elector (voter) the ability to challenge the eligibility of "ANY PERSON, elected or nominated to office". "Eligibility for office sought" is a specific cause of action granted by the statutes (102.168 (1)(3)(b). Florida judges have attempted to say that the Fla. election statutes do not apply to Presidential elections, however, in Palm Bch. Co. Canvassing v. Harris (2000), the Fla Supreme Ct. has SPECIFICALLY said that they do. As of now, 2 separate appeals are pending in Fla. that are legally and properly filed within the election contest statutes, and the praetorian guards of the judiciary are sitting on them. Some judges have tried to claim that eligibility is determined by Congress. However, Congress is only Constitutionally in charge of the eligibility of its own members (A1S5). Further, Federalist 68 explains that Electors who actually vote in the electoral college, held in the individual states, are NOT MEMBERS of the government (therefore the question of POTUS eligibility is not a political question and is judicial), and A2 assures that no Elector is a member of government, and are under authority of the states. The Joint Session of Congress, specified in A2 is NOT the Electoral College, and performs the ministerial duty of "counting the electoral votes" as specified by Art. 2. Ministerial duties are judicially reviewable.

MichaelN said...

Mario said....
"Our historical precedents have spoken as to who is a “natural born Citizen.” The U.S. Supreme Court has confirmed the definition to be a child born in the country to citizen parents. Congress is constitutionally bound to apply this definition to Obama. Congress’s failure to apply this definition to Obama and to again declare him President of the United States would amount to nothing more than treason upon the constitution and the nation by allowing a de facto president to continue in that all powerful office for a second term rather than a constitutionally legitimate one. The fate of the nation is in the hands of Congress on January 4, 2013."

The Congress and the Senate have an out, thanks to Jack Maskell and the CRS.

Maskell must be publicly exposed and corrected, the CRS memorandum must be withdrawn and replaced, before the representatives in government will do anything.

Is there anyway the CRS can be brought to court?

Mario Apuzzo, Esq. said...

MichaelN,

At the time the Founders and Framers adopted the Constitution, they accepted that there are three constituent elements to being a “natural born Citizen,” i.e., place of birth (the United State), birth parents (both U.S. citizens), and time (at the moment of birth). See Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (the unanimous U.S. Supreme Court confirmed that “[a]t 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”) and United States v. Wong Kim Ark, 169 U.S. 649, 679-80 (1898) (the majority and dissent agreed on the Minor definition of a “natural-born citizen,” but they disagreed as to the definition of a Fourteenth Amendment “citizen of the United States” at birth).

Jack Maskell’s CRS memo is full of misstatements, manipulations, distortions, and avoidances in connection with defining a “natural born Citizen” and these three elements of the definition. In the end, Maskell states the obvious that a “natural born Citizen” is a “born Citizen,” telling us that the latter is a definition of the clause. First, Maskell’s definition is no definition at all, for it is nothing but fallacious reasoning suffering from both tautology (true only because of the form of the argument, but not because of its substance; his statement only repeats one necessary consequent of the definition, and not including all the constituent elements of the definition, only masquerades as a definition) and the fallacy of Affirming the Consequent (a “natural born citizen” is a “born citizen.” Obama is a “born citizen.” Therefore Obama is a “natural born citizen”). Second, Maskell’s “definition” only addresses the third element of being a “natural born Citizen,” time,” and leaves out place of birth and birth parents. To think that the Founders and Framers, who were so devoted to natural law and the law of nations, and demanding from the new citizens absolute loyalty to the new nation with no titles of nobility, would have given us a definition of a “natural born Citizen,” which was to be used to qualify the all-powerful president and commander of the military, that was so vague, ambiguous, expansive in scope and producing of conflicting allegiances, and prone to Congressional manipulation, is absurd.

Having said that, there still is no way that a law suit can prevail against Maskell and his political propagandist CRS memo based on the content of that memo. In any event, there is no need to sue Maskell and his memo, for what he has expressed is nothing more than his personal opinion which does not change our constitutional law. Yes, what I have written on the subject is also just my personal opinion. But let historical sources, U.S. Supreme Court case law, reason, logic, and a devotion to finding the truth decide who is right and who is wrong.

thalightguy said...

Mario,

As to my hypothetical question above, would the explanation not be sufficient to prove standing?

davidfarrar said...

Over at Tea Party Nation
I had this exchange:

Reply by Delilah Bankhead on Friday

"The use of the word "subject" was referring to English common law, which is where much of American law derived. Perhaps you should read it more carefully.

▶ Reply by David Farrar on Friday

"No doubt it is English common law. But which common law: on the Cokean concept of perpetual allegiance and place of birth, or on the Lockean concept of volitional allegiance and inherited citizenship?
ex animo
davidfarrar

▶ Reply by Frank L. Worth on Friday

"You make an excellent point about the "perpetual allegiance" aspect of common law. US law has overridden that, though, most explicitly as far as I have found in its various Expatriation Acts. There may be other places too.
Interestingly, to further my point about common law being in place unless explicitly rejected by American law, the Expatriation Act of 1868 "was an explicit rejection of the feudal common law principle of perpetual allegiance." (http://en.wikipedia.org/wiki/Expatriation_Act_of_1868)

▶ Reply by David Farrar 22 hours ago:

"@Frank
If, as you say, the Expatriation Act of 1868 specifically overrode the feudal concept of "perpetual allegiance" as an aspect of common law in this country, a fortiori, there was a consent-based citizenship in place at that time.

ex animo
davidfarrar

MichaelN said...

Mario said ....
" there still is no way that a law suit can prevail against Maskell and his political propagandist CRS memo based on the content of that memo. In any event, there is no need to sue Maskell and his memo, for what he has expressed is nothing more than his personal opinion which does not change our constitutional law."

It's this very "personal opinion" of Maskell's which the representatives in government use as their way out of facing the truth and dealing with the matter properly.

Maskell's distortion must be challenged and exposed in such a manner that the Congress and the Senate sit-up and pay attention.

Maybe he can be brought to account via a formal complaint that he has mislead the parliament.

MichaelN said...

Hope you got over the flu Linda.

It will be interesting to see what you come up with next.

Linda said...

@Commenters

I appreciate your responses, posts, etc. I intend to address them when I am able. I have the flu.

January 14, 2013 at 9:47 AM

Mick said...

The CRS is certainly not biased. I have caught them in a direct lie, in Analysis of the 14A, published by the GPO.

http://www.scribd.com/doc/98909804/Proof-That-the-Congressional-Research-Service-is-Not

Mario Apuzzo, Esq. said...

Dr. Conspiracy just wrote an article on his blog which includes the following passage:

“Judge Bent in Vermont, commenting in his decision of Paige v. Obama about such arguments from attorney Mario Apuzzo said:

‘Mr. Apuzzo argues that originalist thinking as to the meaning of the phrase "natural born citizen" was consistent with an intent on the part of the authors of the constitution to adopt a jus sanguinis citizenship model rather than the jus soli model of the English common law…. While Mr. Apuzzo mightily attempts to distinguish the conclusion of the United States Supreme Court in Wing Kim Ark, that English common law was adopted as to which model of citizenship was intended by the original framers, this court concludes that his arguments are, in the face of such a decision, academic only.’

The Court in essence rejected an argument from primary sources in favor of precedent. The Court deferred to the expertise of the Supreme Court, rather than reading newspaper articles from 1787, historical cases about shipping disputes, or legal essays from Switzerland.”

Judge Bent and Dr. Conspiracy find that my “natural born Citizen” “‘arguments are, in the face of such a decision, academic only.’” As always, the devil is in the details. In addressing those details, we have to inquire just what does “such a decision” say? Is that not the question if we are to correctly apply the Wong Kim Ark holding to any given case? We also have to know what these “precedents” really say.

Both Judge Bent and Dr. Conspiracy beg the question on what Wong Kim Ark really held, if anything, regarding what law and rule the Founders and Framers relied upon to define a “natural-born citizen,” rather than just a “citizen,” and what definition they gave to that specific clause. Dr. Conspiracy further begs the question by assuming that these “precedents” support a definition of a “natural born Citizen” that is contrary to mine.

The issue is whether Wong Kim Ark held anything regarding that clause versus whether its holding is limited to a “citizen of the United States” at birth under the Fourteenth Amendment. But without addressing my arguments, both Judge Bent and Dr. Conspiracy just state a conclusion which assumes that Wong Kim Ark relied on English common law and held Wong to be an Article II “natural born Citizen.” But on close analysis, we learn that Wong did no such thing. On the contrary, Wong Kim Ark confirmed Minor’s American common law definition of a “natural-born citizen” and held that Wong, the son of domiciled and resident aliens born in the country, was just as much a “citizen” as the “natural-born citizen” child born in the country to citizen parents, and therefore, by virtue of being born in the country, a “citizen of the United States” at birth under the Fourteenth Amendment, but not an Article II “natural born Citizen.” A close reading of Wong Kim Ark shows that the Court did not confound and conflate a Fourteenth Amendment “citizen of the United States” at birth with an Article II “natural born Citizen,” which is what Judge Bent did when reading and applying the decision and when using the phrase “model of citizenship,” which fails to distinguish between a “citizen” and a “natural-born citizen.”

The issue is also what did these “precedents” really say? Neither Judge Bent nor Dr. Conspiracy tells us. Rather, they just assume without demonstration that these precedents support their position and not mine. But we should all know by now that just saying something is so does not make it so.

Hence, my arguments are not “academic only” “in the face of such a decision,” for Judge Bent does not demonstrate what Wong Kim Ark held (not just stating what it held) nor did the decision hold what Judge Bent says it held. My argument is also not “academic” for allegedly being foreclosed by any “precedents,” for neither Judge Bent nor Dr. Conspiracy shows what those precedents said and how they support their position rather than mine.


davidfarrar said...

Mick,

I am trying to follow your point here but I can't seem to find where in the CRS (http://www.blogger.com/comment.g?blogID=7466841558189356289&postID=1686948473330298334) specifically states:"The Civil Rights Act 1866, by saying that the 14th Amendment 'contained no such provision'".

ex animo
davidfarrar

MichaelN said...

Judge Bent (the name seems appropriate)said....
"Mr. Apuzzo argues that originalist thinking as to the meaning of the phrase "natural born citizen" was consistent with an intent on the part of the authors of the constitution to adopt a jus sanguinis citizenship model rather than the jus soli model of the English common law...."

Bent appears to not understand, or ignores the fact that the meaning of the phrase "natural born Citizen" was NOT a "citizenship model".

It was the eligibility model for one who was already expected to be a US citizen.

i.e. we already know that the POTUS had to be a US citizen and it is obvious that a born citizen was preferred over a naturalized citizen.

With the imperative to ensure the least amount of foreign persuasion, influence, loyalty and claim, the only thing left was to be "born under the ligeance" of US citizen parents.

So it was NOT "an intent on the part of the authors of the constitution to adopt a jus sanguinis citizenship model rather than the jus soli model of the English common law"..... it was BOTH jus sanguinis AND jus soli COMBINED.

Judge Bent is bent!

Mick said...

That should be, the CRS is certainly not "un-biased"

Mario Apuzzo, Esq. said...


MichaelN,

The problem with using phrases such as “citizenship model” alone without explanation as to what are the elements of that model is that it blends together “citizen,” “born citizen,” and “natural born Citizen,” without alerting us that there is a critical constitutional distinction between a “natural born Citizen” and these other variants and presenting what that distinction is. I call those who commit this error the citizen/born citizen/natural born Citizen conflationists.

Doublee said...

Let us assume for the moment that Barack Obama has a case before the Supreme Court that is not an eligibility case. Chief Justice Waite is presiding.

The first question before the Court was whether the Court has jurisdiction to hear Obama’s case. Chief Justice Wait said this:

“[B]y the Constitution, the judicial power of the United States is made to extend to controversies between citizens of different States. Under this it has been uniformly held that the citizenship necessary to give the courts of the United States jurisdiction of a cause must be affirmatively shown on the record. Its existence as a fact may be put in issue and tried. If found not to exist the case must be dismissed.”

We all know what the Court said. Permit me to paraphrase what the Court said so that the text conforms to my hypothetical case.

To determine whether Mr. Obama is a citizen and therefore eligible to have his case heard, let us begin with the definition 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. 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.
“Documents presented to this Court show that Mr. Obama’s father was a citizen of Kenya when he was born and that his mother was a citizen of the United States. He, therefore, does not satisfy the definition natural born citizen, but it is not necessary that he be a natural born citizen for this court to hear his case.
“The question becomes whether he is a citizen. Some authorities include as citizens children born within the jurisdiction without reference to the citizenship of their parents. This is the case that we must consider. As to this class there have been doubts, but never as to the first. For the purposes of this case it then becomes necessary to solve these doubts.


It would be interesting to know how the Chief Justice Waite would have ruled if Mrs. Minor had a foreign born parent.

davidfarrar said...

A natural born subject is a person born under the allegiance of the state. A natural born Citizen is a person born under the cloak of allegiance of one's father, seems to me to be pretty straightforward choice. The first involves no choice, while the other requires one. The first is posited law, the second is natural law.

The question before the court would be: which one best represents l'Esprit de la Révolution, as articulated by the Declaration of Independence, and codified by the U.S. Constitution?

ex animo
davidfarrar

MichaelN said...

davidfarrar said...

"A natural born subject is a person born under the allegiance of the state. A natural born Citizen is a person born under the cloak of allegiance of one's father, seems to me to be pretty straightforward choice."

A natural born subject of England in 17th century was a person "born under the ligeance of a subject".

Nothing to do with "under the allegiance of the state".

In 17th century England, if the father was not a "subject" then the child, even if native born in the realm, was an alien-born.

A US "natural born Citizen" was/is one born both native to US and "under the ligeance of" US citizen parents.

The Framers didn't change what the 17th century English common law held with regard to what qualified an English natural born subject; the Founders and Framers, with other influences and guidances per Vattel, etc, simply made it more stringent as an eligibility status for the office of POTUS for fear of foreign influence, persuasion, loyalty and claim; bearing in mind the English had no such concerns, because a natural born subject to them was not eligibility qualification for monarch or any high office.

davidfarrar said...

I see. Thank you MichaeIN,

A natural born subject is a person born under the ligeance of the subject. It involves no choice. It is proscribed by posited law, relying on the principle of perpetual allegiance as determined by birth on the soil.

A natural born Citizen is a person born under the ligeance of its parents, and relies on the ancient Roman principle of citizenship as determined by descent of a privileged choice.

The question before the court would be: which one best represents l'Esprit de la Révolution, as articulated by the Declaration of Independence, and codified by the U.S. Constitution?

ex animo
davidfarrar

MichaelN said...

davidfarrar said...

"I see. Thank you MichaeIN,

A natural born subject is a person born under the ligeance of the subject. It involves no choice. It is proscribed by posited law, relying on the principle of perpetual allegiance as determined by birth on the soil."

@ David.
In the case of an alien-born parent, then the allegiance 9of the parent) is only temporary and not perpetual.

The perpetual allegiance of the native-born, natural born subject(child) of the alien-born parent, is not determined by "birth on the soil".

Birth on the soil is one essential quality for a child of an alien-born parent to be a natural born subject, but, TWO essential qualities are required to make a NBS, when the parent is an alien-born.

This is not necessarily the case when the parents have perpetual allegiance.

Lord Coke - Calvin's case....

" There be regulary (unlesse it be in special cases) three incidents to a subject born.
1. That the parents be under the actual obedience of the king.
2. That the place of his birth be within the king’s dominion.
And 3. the time of his birth is chiefly to be considered; for he cannot be a subject born of one kingdom, that was born under the ligeance of a king of another kingdom, albeit afterwards one kingdom descend to the king of the other.

For the first, it is termed actual obedience, because though the King of England hath absolute right to other kingdoms or dominions, as France, Aquitain, Normandy, &c. yet seeing the King is not in actual possession thereof, none born there since the Crown of England was out of actual possession thereof, are Subjects to the king of England.
2. The place is observable, but so as many times ligeance or obedience without any place within the king’s dominions may make a subject born, but any place within the king’s dominions may make a subject born, but any place within the king’s dominions without obedience can never produce a natural subject.
And therefore if any of the king’s Ambassadors in forein Nations, have children there of their wives, being English women, by the Common Laws of England they are natural born subjects, and yet they are born out of the king’s dominions."

davidfarrar said...

A natural born subject, by posited law, is a person born under the feudal concept of perpetual allegiance, without choice, due solely to place of birth.

A natural born Citizen is a person born a citizen, by natural law, using the ancient Roman concept of citizenship by descent and the Lockean concept of consent-based allegiance.

The question before the reader is: which one best represents l'Esprit de la Révolution, as articulated by the Declaration of Independence, and codified by the U.S. Constitution?

Am I right or am I right?

ex animo
davidfarrar

MichaelN said...

davidfarrar said...

"A natural born subject, by posited law, is a person born under the feudal concept of perpetual allegiance, without choice, due solely to place of birth."

A 17th century English natural born subject, wherever born, MUST be born under the allegiance of a subject.

Lord Coke - calvin's case...

"The place is observable, but so as many times ligeance or obedience without any place within the king’s dominions may make a subject born, but any place within the king’s dominions may make a subject born, but any place within the king’s dominions without obedience can never produce a natural subject.

And therefore if any of the king’s Ambassadors in forein Nations, have children there of their wives, being English women, by the Common Laws of England they are natural born subjects, and yet they are born out of the king’s dominions."


To the 17th century English, it was all about the allegiance of the PARENTS.

MichaelN said...

Further to my prior last post.

The 17th century English also recognized several types and degrees of allegiance.

Lord Coke - Calvin's case....

"There is found in the law four kinds of ligeances: the first is, ligeantia naturalis, absoluta, pura, et indefinita,42 and this originally is due by nature and birthright, and is called alta ligeantia42a and he that oweth this is called subditus natus.43 The second is called ligeantia acquisita,44 not by nature but by acquisition or denization, being called a denizen, or rather donaizon, because he is subditus datus.45 The third is ligeantia localis46 wrought by the law, and that is when an alien that is in amity cometh into England, because as long as he is within England, he is within the King’s protection; therefore so long as he is there, he oweth unto the King a local obedience or ligeance, for that the one (as it hath been said) draweth the other. The fourth is a legal obedience, or ligeance which is called legal, because the municipal laws of this realm have prescribed the order and form of it; and this to be done upon oath at the Torn or Leet."

davidfarrar said...

"The idea of a “citizen at birth” has changed over time. Before the 14th Amendment was ratified in 1868, a person born to immigrant parents—even on U.S. soil—was not considered a citizen at birth. The amendment changed that understanding. It states, “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.”...Naturalized Citizens And The Presidency/Constitutional Rights Foundation

The bad news is, the power to create this country's 'ruling class'* has been taken from where it was originally placed i.e., in the hands of the we the People, and placed into the hands of Congress by §5 of the 14th Amendment.
 
The good news is, we don't have to hold a Constitution convention to change things back to where they were, nor go through the amendment process; all we have to do is pass a simple bill through Congress.

In fact, H.R. 140 has already been resurrected from the 112th Congress, and with a little amending, can accomplish just such a task -- BEFORE -- any large scale IMMIGRATION bill is passed.

The only question we have now is ....who is going to lead us?

ex animo
davidfarrar
*Ruling class: Art. II, §1, cl. 4 creates the qualifications for the presidency and vice-presidency of the United States

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