Barack Obama: The De Facto President of the United States-
Maybe a Born Citizen But Not A “Natural Born Citizen”
By Mario Apuzzo, Esq.
January 21, 2013
| The U.S. Constitution |
Barack Obama eligibility supporters maintain that he is an Article II “natural born Citizen” and therefore eligible to be President. But to do so, they have blended together, through ignorance or intent, “citizen,” “born citizen,” and “natural born Citizen,” and denied that there is a critical constitutional distinction between these phrases. These supporters and enablers, who I call the citizen/born citizen/natural born citizen conflationists, in constitutionally supporting Barack Obama to be president, have allowed our Constitution, the rule of law, and our nation to be violated. Allow me to explain.
In order to understand the meaning of an Article II “natural born Citizen,” we have to understand the constitutional distinction between a “citizen,” “born citizen,” and “natural born Citizen.” The first constitutional distinction is between “citizen” and “natural born Citizen.” In Article II, Section 1, Clause 5 the Framers provided in pertinent part: “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.” Here, we see the Framers distinguished between a “natural born Citizen” and a “Citizen of the United States.” There is no other type of “citizen” mentioned. So, our Constitution, Acts of Congress, and treaties, call “citizens,” or members of the United States, either “natural born Citizens” or “citizens of the United States.” As we shall see, the former are defined by American common law (the definition being based on natural law and the law of nations) and the latter by the Fourteenth Amendment (the definition being in part based on colonial English common law), Congressional Acts, or treaties. From this we can see that a “citizen” is either a “natural born Citizen” or a “citizen of the United States.” Because of the requirement of having to be born in the country to citizen parents, a “natural born Citizen” will necessarily also qualify under these sources as a “citizen of the United States.”
Article II refers to a “natural born Citizen,” but does not define it. In fact, the definition of a “natural born Citizen” is not found anywhere in the original or amended Constitution or any Act of Congress. Rather, it is found in the common law upon which the Founders and Framers relied at the time of the adoption and ratification of the Constitution. Under this common law, the three constituent elements of being a “natural-born citizen” are time (at the moment of birth), birth place (in the country), and birth parents (U.S. citizen parents), what I will call birth time, birth country, and birth parents. See Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (the unanimous U.S. Supreme Court explained that the definition of a “natural-born citizen” is not found in the Constitution and 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”); 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). Given this settled common law definition of a “natural born Citizen,” these elements are both necessary and sufficient to make a “natural born Citizen.” In the definition, the parents have to have as a minimum the status of a “citizen” (“born citizen” or “natural born Citizen” is not necessary) in order to produce a “natural born Citizen.” Note that Minor said that at common law, if one was not a “natural-born citizen,” one was an alien or foreigner. This means that if these persons qualified, the Fourteenth Amendment, Act of Congress, or treaty could make them a “citizen of the United States.”
These historical and legal developments inform that at common law there is a critical distinction between a “citizen” and a “natural born citizen.” In fact, natural law and the law of nations have always recognized this distinction. See Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758) (“The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” http://www.lonang.com/exlibris/vattel/vatt-119.htm ). At common law, if one was a “citizen” but not a “natural born citizen,” then, except for the original “citizens” who became such by the Declaration of Independence and by adhering to the American Revolution, one had to have been alien born and become a “citizen” by naturalization statute. Natural law and the law of nations, along with both English and American common law, have also always recognized that a child gains allegiance and citizenship by either being born on the soil of a country (jus soli) or by being born to parents of that country (jus sanguinis). The Founders and Framers accepted the distinction between a “citizen” and a “natural born Citizen” and understood that birth country and birth parents produce in the child allegiance from the moment of birth. Because they expected the President and Commander in Chief of the Military to have absolute allegiance from birth only to the United States, they applied the distinction to the Office of President. In fact, they used it when they made the “natural born Citizen” clause a requirement of eligibility for the Office of President (the XII Amendment extends it to the Office of Vice-President) and for no other office, requiring, for those to born after the adoption of the Constitution and who would aspire to be President and Commander in Chief of the Military, that they be not only a “citizen,” but a “natural born Citizen.” (The grandfather clause of Article II, Section 1, Clause 5 allowed “Citizens of the United States” to be eligible to be President, provided they had that status “at the time of Adoption of this Constitution.”) The English did not nor did they have to demand such allegiance from their would-be Kings, for their Kings did not have to qualify from among the people. Rather, they lay their claim to the throne by royal blood. Rejecting as a requisite to be President royal blood, the Founders and Framers instead settled with the natural elements of birth time, birth country, and birth parents, and made their distinction between a “citizen” who was also a “natural born Citizen” and a “citizen” who was not. And it was the combination of these three elements at the time of birth which assured them that all means of inheriting allegiance and citizenship (birth country and birth parents) were united at the moment of birth to produce in the child absolute allegiance only to the United States.
The next constitutional distinction is between “born citizen” and “natural born Citizen.” These same Obama eligibility supporters add the word “born” to the word “citizen” and want us to accept that combination as the definition of a “natural born Citizen.” But those who assert that a “natural born Citizen” is just any “born citizen” commit two errors: a textual error of missing the point (or by refusing to see the point) that the clause is “natural born Citizen,” not “born citizen” and a definitional error of not understanding (or refusing to accept) that “born citizen” is neither a definition nor a description of the clause “natural born Citizen.”
First, regarding the textual error, as I have already explained in other articles such as Logic and Defining the “Natural Born Citizen” Clause, at http://puzo1.blogspot.com/2012/11/logic-and-defining-natural-born-citizen.html , we cannot define a clause by merely repeating parts of the clause itself. For example, if we wanted to know what the definition of a “natural born German Shepherd” is, we would not accept as a correct definition the answer that it is a “born German Shepherd.” To argue that a “natural born German Shepherd” is a “born German Shepherd” is tautological, for it only repeats part of the form of the clause and does not define the clause. Such an argument does nothing more than to state the obvious that a “natural born German Shepherd” is a “born German Shepherd.” Likewise, a “natural born Citizen,” is, of course, a “born citizen,” but saying so does not define the clause.
Second, in this “born German Shepherd” definition example, a rational person should also want to know what happened to the qualifier “natural” and its meaning. Does not that word tell us something about under what conditions the “born German shepherd” must come into existence? Likewise, those rational persons who want to know the meaning of a “natural born Citizen” should want to know what happened to the qualifier “natural,” and whether that qualifier also requires that certain conditions be met in order to have a “natural born Citizen.” Actually, these persons would be correct in raising such questions. Given the meaning of a “natural born Citizen,” with its three constituent elements of birth time, birth country, and birth parents, we know that the word “natural” when combined with “born citizen” demands that all three elements be satisfied in order to have a “natural born Citizen.” We might be willing to include others as “born citizens” and Congress has the naturalization powers to do so and has done so throughout our history. But that we are willing to tolerate by the application of some law certain persons as “born citizens” does not, given the applicable common law definition of the clause and its requirements, make them “natural born Citizens”
Regarding the definitional error, the clauses “natural born Citizen” and “born Citizen” are conclusions, birth statuses that do not provide sufficient factual information as to how one arrives at the conclusions or statuses themselves. Rather, to know if one satisfies the status of being a “natural born Citizen,” one must start with the definition of a “natural born Citizen,” identifying its constituent elements. If one satisfies those elements, then one is a “natural born Citizen.” And to know if one satisfies the status of being a “born citizen,” one must also start with the available definitions, however many there are and whether provided by the Fourteenth Amendment or Congressional Acts, of a “born citizen,” identifying their constituent elements. If one satisfies those elements, then one is a “born citizen.” But obviously, we are defining two different clauses which necessarily contain different definitions and requirements. The clause does not tell us how one arrives at being a “born citizen,” which process must be equivalent to the process by which one arrives at being a “natural born Citizen” if the two clauses are to mean the same thing. Hence, to simply use other legal mechanisms of citizenship which produce a “born citizen” and proclaim that they too produce a “natural born Citizen,” simply because they, like “natural born Citizens,” are “born citizens,” is to err. It is to err because being a “born citizen” is only a necessary consequent (a conclusion or status) of being a “natural born Citizen” and by itself, because it is based on a different definition, represents a different class of citizen, one produced by the Fourteenth Amendment or Congressional Act and not by American common law.
There is only one process or means by which one can be a “natural born Citizen,” i.e., by satisfying the necessary and sufficient conditions of birth time (at the moment of birth), birth country (born in the United States), and birth parents (born to U.S. citizen parents). Simply stated, any “born citizen” who does not satisfy these three conditions, while still being a “born citizen” under some legal mechanism (e.g., under the Fourteenth Amendment or Congressional Act), is not a “natural born Citizen” under American common law which is the natural law/law of nations-based law that provides the constitutional definition of the clause.
Minor v. Happersett confirms all this and United States v. Wong Kim Ark changes none of it.
Barack Obama maintains that he was born in Hawaii. With a dispute involving whether his birth certificate, social security number, and military draft registration are authentic still continuing and not having been definitively resolved through any legal process, we have yet to see conclusive legal proof of his place of birth. But even assuming for sake of argument that he was born in Hawaii, he is still not an Article II “natural born Citizen.” We have seen that the three elements of being a “natural born Citizen” are birth time, birth country, and birth parents. Minor; Wong Kim Ark. If Obama was born in Hawaii, he satisfies the birth country requirement. But while Obama was born to a U.S. “citizen” mother, his father never became nor did he strive to become a U.S. “citizen.” Rather, his father was born in the English colony of Kenya, was born a British citizen, and remained such until his death. Hence, Obama was not born to a U.S. “citizen” father. He therefore fails to satisfy the elements of being born to citizen parents at the moment of birth. This means that he can be a “born citizen” under the Fourteenth Amendment or Congressional Act, which provide a more relaxed allegiance standard , but he cannot be a “natural born Citizen” under Article II, which provides a more exacting allegiance standard for would-be Presidents and Commanders of the Military. This also means that because he is neither “a natural born Citizen” nor “a Citizen of the United States, at the time of the Adoption of this Constitution,” he is not eligible to be President.
On January 20, 2013, Barack Obama was again sworn in as the President of the United States. But because he is not an Article II “natural born Citizen,” he is at best a de facto President of the United States, not a constitutionally legitimate one.
Mario Apuzzo, Esq.
January 21, 2013
http://puzo1.blogspot.com
####
Copyright © 2013
Mario Apuzzo, Esq.
All Rights Reserved
A little confusing in the middle of the article, but very clear at the beginning and at the end.
ReplyDeleteI think it would be helpful to clarify the term 'native born citizen,' Mr. Apuzzo. It has been used to confuse the NBC issue. I presume that a 'native born citizen' refers only to having been born in the country, and has nothing to do with the parentage. But the clearer this issue can be made, the better.
Thanks for keeping this extremely important constitutional issue 'up front' in our awareness, Mr. Apuzzo. At least for those who have eyes to see; and a mind to think clearly with.
Thank You Mario
ReplyDeleteI have never heard the phrase "natural born German shepherd" so it's hard to follow the analogy. A more familiar example would be "natural born athlete," which implies an innate quality at birth, but does not suggest that ones parents are athletes.
ReplyDeleteStan,
ReplyDeleteMaybe you can point out to me specifically what was confusing in the middle of the article and I can hopefully clarify it.
Thank you for suggesting that “native born citizen” needs clarification. As to “native born citizen,” this is neither a constitutional nor Congressional term. Look in the Constitution and Acts of Congress and you will not find it. This term has generated great confusion in our citizenship law and is probably one of the main reasons why there is so much misunderstanding as to what the correct definition of a “natural born Citizen” is.
In natural law and the law of nations, a “native” and “natural born citizen” had equivalent meanings. See Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758) (“The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens.” The same definition of “natives, or natural-born citizens” was accepted by The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (following an older translation of Vattel’s The Law of Nations, Chief Justice John Marshall, concurring, called them the “natives or indigenes”); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Daniels, J., concurring); Minor v. Happersett, 88 U.S. 162, 167-68 (1875); and U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898). Hence, this definition of “native” and “natural-born citizen” became incorporated into our national common law.
Because the Fourteenth Amendment calls qualifying persons who are born in the United States and those who are born out of it and naturalized after birth both “citizens of the United States,” and because Wong Kim Ark held that citizen parents are not required to qualify as a “citizen of the United States” under the amendment, and because Congress calls qualifying persons who are born out of the United States to one or two U.S. citizen parents “citizens of the United States,” the term “native born citizen,” came to be used to distinguish these “citizens of the United States” by signifying that a “citizen of the United States” became a citizen at the moment of birth by birth in the United States rather than by birth out of the United States to citizen parents or by birth out of the United States to alien parents followed by naturalization after birth. In other words, it was used to show that one was born an American citizen by birth on its soil rather than born an American citizen by birth in a foreign country to one or two citizen parents, or born a foreign citizen by birth in a foreign county to alien parents followed by naturalization after birth.
But again, Article II, in referring to a “natural born Citizen” calls for the American common law (natural law/law of nations) definitional standard, the Fourteenth Amendment, in referring to a born “citizen of the United States” calls for the colonial English common law standard as modified by Wong Kim Ark, and a Congressional Act, in referring to a born “citizen of the United States, calls for whatever standard Congress may impose at any given time and for whatever social, political, cultural, and economic reason. Hence, when one uses “native born citizen” in the Fourteenth Amendment/Wong Kim Ark sense, he or she is referring only to being born in the country and qualifying to be a “citizen of the United States” and nothing more. It is error to maintain that with such usage, one is referring and by implication defining an Article II “natural born Citizen,” which has a different definitional standard. On the other hand, if one were to use the term “native” to mean “natural born Citizen,” then natural law/law of nations/national common law would apply and its definition would be a child born in a country to parents who were its citizens at the time of his or her birth.
Kevin Davidson,
ReplyDeleteI do not agree with you that the phrase “natural born athlete” is a better analogy of a “natural born Citizen” than is a “natural born German Shepherd.”
“Natural born Citizen” is not a metaphorical term. Rather, it is a clause with a precise definition that is objective in nature. Hence, it is a word of art, an idiom, a unitary clause. Being a status which is acquired only at birth, no one learns to be a “natural born Citizen.” It has only one meaning which is a child born in a country to parents who were its citizens at the time of the child’s birth. As you see, there is a parent component to the definition. This meaning exists objectively and is not victim to subjective interpretation. By using this word of art, the Founders and Framer conveyed precisely this meaning.
The phrase “natural born athlete” is a poor analogy of a “natural born Citizen.” The phrase is a metaphorical expression, meaning to convey the idea that someone is so good in a given sport that he or she must have been born with such traits. But in reality, it is not an ability or status that is acquired at birth. In fact, there is no such thing as a born athlete, let alone a natural born one. Athletics is a learned activity and hardly one with which anyone is born. Additionally, a great athlete does not need to have been procreated by athletic parents. Moreover, athletics can be learned at any given time in one’s life, with the results not only depended upon the natural mind and body, but also by the level of commitment devoted to practicing the activity, the quality of training one receives, and the time at which in one’s life one makes the commitment and receives the training (persons who start earlier in life usually have better results). Finally, the phrase is subject to someone’s personal definition of a “natural born athlete” and whether any given person meets that definition, making the phrase subjective in nature.
In contradistinction, a “natural born German shepherd” is a good analogy of a “natural born Citizen.” Unlike the “natural born athlete,” in the real world there is such a thing as a “natural born German Shepherd.” Such dogs do not learn to become “natural born German shepherds” like your “natural born athletes.” Rather, like “natural born Citizens,” they are born with their status and acquire that status by being born of German Shepherd dogs. In other words, like “natural born Citizens,” there are ancestral qualifications required if one wants a “natural born German Shepherd.” The clause is designed to convey a very precise and limited meaning concerning that particular German shepherd, not a metaphorical one as in your “natural born athlete” example, which is prone to subjective interpretation.
Finally, the Founders and Framers did not believe in anyone being King. They believed that, as it is absurd to think that someone could be born a doctor, lawyer, or any station in life, so too was it absurd to think that someone could be born a leader of the people. Rather, like what makes your “natural born athlete,” they believed that for those “natural born Citizens” who would aspire for the office of President, during his or her at least 35 years of life and by life spent living in the United States of at least 14 years, he had to earn and demonstrate it through merit. But as you see, according to the Founders and Framers, one did not even get a chance to show that he or she merited to be President unless he or she was first a “natural born Citizen.”
Notice to Obots:
ReplyDeleteI have just rejected two Obot comments here. This is not a place to which you can come and repeat your Obot personal attacks against me which have no basis in law or fact. If you want to address what I wrote, like Kevin Davidson did, then you are free to do so. But I will not let you get away with your childish rubbish here.
Mr. Apuzzo, you seem to be unaware that "natural born citizen" is not a clause, it is a term of art. Thus, the meaning does not rely on the meanings of the individual words that make up the term.
ReplyDeleteHope this helps.
ASK Esq,
ReplyDeleteI am surprised at your comment. Your comment should be directed to the Obama eligibility supporters who want to tell us that a “natural born Citizen” is any born citizen. I have always argued that the clause is a word of art, an idiom, a unitary clause which cannot be broken into pieces to find its meaning. Calling the words a clause does not diminish any of this. I suggest you go back and read my writings. You will find it all there.
The US Supreme Court ruled in the Wong Kim Ark case that the meaning of Natural Born Citizen comes from the common law and refers to the place of birth.
ReplyDeleteHere are its words:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
That is why nine state and federal courts have ruled that indeed the US Supreme Court made that ruling in the Wong Kim Ark case, and that it ruled that the meaning of Natural Born Citizen came from the common law, and that it ruled that every child born in the USA except for the children of foreign diplomats is a Natural Born US Citizen.
Here are some of the rulings:
Hollander v. McCain (New Hampshire 2008) ruling: “Those born “in the United States, and subject to the jurisdiction thereof,” U.S. Const., amend. XIV, have been considered American citizens under American law in effect since the time of the founding, United States v. Wong Kim Ark, 169 U.S. 649, 674-75 (1898), and thus eligible for the presidency..."
Ankeny v. Governor of Indiana (Indiana 2008 – Appellate Court) ruling: “Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we conclude that persons born within the borders of the United States are “natural born Citizens” for Article II, Section 1 purposes, regardless of the citizenship of their parents.”
Tisdale v. Obama (Virginia federal court 2012) ruling: “It is well settled that those born in the United States are considered natural born citizens.”
Every word out of the mouth of Colin Powell is deliberate in the extreme.
ReplyDeleteThe Obama camp is really sweating the upcoming release of information by Sheriff Joe's volunteer Cold-Case-Posse to put Colin Powell out front in an effort to get out in front of Sheriff Joe's upcoming release of new information on Mr. Obama's criminal usurpation of the presidency and attempt to discredit those who believe the evidence that Mr. Obama is a fraud.
Timing is Everything!
PPSIMMONS has announced on a YouTube video that investigators will soon be releasing new information uncovered in the ongoing investigation into the usurper-in-chief. The new revelations are said to be big--real big--and the timing of the release appears to be coming right before the Feb. 15th conference of the Supreme Court.
Could the timing be deliberate so as to deny the Chief Justice the luxury of sweeping aside Orly Taitz's case which will be among those being considered by the court in the Feb. 15th conference?
The Big Question:
Who is the well known personality who PPSIMMONS reports will be a part of the release of the upcoming revelations?
My guess: Donald Trump. If he shows at the press conference and doesn't even say a word ALL the major news media lap dogs will still be compelled to attend and cover the event.
Atty. Larry Klayman's case in Alabama is another one to watch. Famous defender of the Constitution, Judge Ray Moore, was re-elected to the Alabama Supreme Court.
The battle to defend the Constitution is not over by a long shot--perhaps a very long shot.
Doc C,
ReplyDeleteYou just wrote "A more familiar example would be "natural born athlete," which implies an innate quality at birth, but does not suggest that ones parents are athletes."
Does that mean everyone born on a football field, basket ball court or hockey rink are natural born athletes?
We rarely hear the phrase natural law. Some one studying philosophy though would be familiar with this phrase found often in medieval philosphy and thought. Natural law is currently out of favor. But the phrase would have been recognized and used in the 18th century. Thus, they would have heard or read "natural born" citizen as citizen according to natural law. And not in the way we might today take it to mean natural as opposed to artificial. Natural foods. Or not contrary to nature. The next step for someone who knew natural law was being invoked would be to ask: what kind of a citizen accords with natural law? I think this has been well answered in this blog and will not give my account. Unfortunately deceitful persons have taken advantage of this educational gap to perpetuate confusion. These insincere persons think they can obtain a good by dishonest methods.
ReplyDeleteIn your time as an attorney, I am going to assume that you have heard of the term "precedent," correct.
ReplyDeleteChester A. Arthur's father was not a citizen at the time of his birth and he was sworn in by CJ Waite who wrote the Minor v. Happ decision. He wrote that decision prior to swearing in Arthur as the President of the United States.
To date, Arthur remains one of the United States' former Presidents, and as such he is the precedent that proves that a parent need not be a citizen to be a "natural born citizen." Until the title of President is removed from Chester A. Arthur as a President of the United States, it could easily be argued that he serves as the precedent to Obama's legitimacy as a "natural born citizen."
Want to remove Obama as President based on the "two parent citizen" argument, then you must first get the courts to determine that Chester A. Arthur was never a legal President. Until then, you haven't got much of an argument based on this precedent.
I just found out about the sanctions imposed upon Linda Jordan for challenging Obama's elgibility.
ReplyDeleteCan anyone validate this site:
https://secure.piryx.com/donate/ZSBbZAAV/Linda-Jordan/defensefund
as being the correct site to make donations to her legal defense fund?
"Republics are created by the virtue, public spirit, and intelligence of the citizens. They fall, when the wise are banished from the public councils, because they dare to be honest, and the profligate are rewarded, because they flatter the people, in order to betray them."
"The truth is, that, even with the most secure tenure of office, during good behavior, the danger is not, that the judges will be too firm in resisting public opinion, and in defence of private rights or public liberties; but, that they will be ready to yield themselves to the passions, and politics, and prejudices of the day."
Joseph Story, Commentaries on the Constitution, 1833
smrstrauss said...
ReplyDelete"The US Supreme Court ruled in the Wong Kim Ark case that the meaning of Natural Born Citizen comes from the common law and refers to the place of birth.
Here are its words:"
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born."
@ smrstrauss.
Every alien-born visiting the English realm in 17th century, was a "subject" of the King, except for alien ambassadors & diplomats of foreign states and alien enemy.
If the alien-born father of a native-born child was not a subject, then his child would not be "born under the ligeance of a subject" and therefore the child, although native-born cannot be a subject at all.
Similarly, for a US native-born child to be a NBC, the parents would by necessity have to be US citizens (aka "subject" to the English) so the child could be also "born under the ligeance of a" citizen/subject.
The US (unlike the English) did NOT embrace all friendly alien-born visitors as citizens (aka "subjects" to the English).
For alien-borns to produce a US NBC, then the alien-born parents would have to become naturalized US citizens for their child to be born "under the ligeance" of a citizen.
@ smrstrauss: Your citation from Wong Kim Ark doesn't say anything about the term natural-born citizen. Further, the English common law it describes says "it APPEARS" ... which is hardly definitive language, especially in defining a term that isn't even used. Yes, English common law made natural-born subjects of the children of aliens, but this required actual and perpetual obedience to the crown. The closest parallel in U.S. law is to satisfy the subject clause of the 14th amendment, which Justice Gray said in WKA means to be a resident alien with permanent domicil. Obama's father was never admitted as a resident alien and he never had permanent domicil, so even if we accept this unstated definition of NBC, Obama still does not satisfy the definition.
ReplyDeleteYour Hollander citation relies on satisfying the subject clause, and not just birth on U.S. soil. It's not accurate, but it still doesn't make Obama an NBC. The Ankeny decision did not declare Obama to be a natural-born citizen AND it contradicted itself because it admitted there is NO legal precedent in Wong Kim Ark to support this conclusion — PLUS it acknowledged that in Minor, which DID define NBC, that the 14th amendment does NOT say who shall be natural-born citizens. Again, this means the Ankeney "conclusion" is NOT legally supported. The Tisdale citation is vague and is simply contradicted by the actual SCOTUS definition in Minor. None of the decisions overrides a UNANIMOUS SCOTUS definition in Minor ... plus, in Luria v. U.S., we have a citation that Minor and NOT WKA is the precedent on Article II presidential eligibility.
@ Richard Allen: Chester A. Arthur is NOT precedent of the definition of NBC being simplified as you would suggest. The act of being sworn in by the chief justice of the SCOTUS doesn't mean Arthur was inherently recognized as a natural-born citizen. This would be nothing more than circular logic. Besides, as far as anyone would have known at the time, Arthur was born in the U.S. and his parents, as of 1881, would have been known to be U.S. citizens. There's no evidence that Waite knew the status of Arthur's father when he was born, and at the time, the question was only over his place of birth, not his father's status. And further, unlike Obama's father, at least Arthur's father became a citizen. Under the Treaty of 1783 (as affirmed in Shanks v. Dupont), the allegiance of the parents is what determines the status of the child. Arthur's father adhered to U.S. allegiance. Obama's father did not. Arthur is irrelevant.
Smrstrauss,
ReplyDeleteI of VI
Article 2, Section 1, Clause 5 of the Constitution of the United States provides in relevant part: “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.” Nobody alive today can claim eligibility to be President under the grandfather clause, for he or she, including Obama, was not a “Citizen of the United States” at the time the Constitution was adopted. Hence, being a “Citizen of the United States” is not sufficient to satisfy Article 2’s presidential eligibility requirements. What is necessary is that a person be a “natural born Citizen.” A brief review of the manner in which a “natural born Citizen” has been defined throughout our history shows that Obama is not a “natural born Citizen” and is therefore not eligible to be President. Here are the legal and historical sources that I base my opinion on (the list is no exhaustive):
(1) Emer de Vattel, The Law of Nations, Section 212 (London 1797) (1st ed. Neuchatel 1758)
“The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Id. Sec. 212 Citizens and natives.
(2) Founder and historian, David Ramsay, A Dissertation on the Manners of Acquiring the Character and Privileges of a Citizen (1789) (in obviously referring to a “natural born citizen” said that citizenship “as a natural right, belongs to none but those who have been born of citizens since the 4th of July, 1776.” Id. at 6);
(3) Naturalization Acts of 1790, 1795, 1802, and 1855 (our early Congresses considered any child born in the United States to alien parents an alien, revealing that birth to citizen parents was necessary to be a “natural born Citizen”);
(4) St. George Tucker, Blackstone's Commentaries (1803) (St. George Tucker, one of the greatest jurist of American history and considered America’s Blackstone, said that the “civil right” to be elected President is “inherited by all whose parents, at the time of their birth, were citizens” and that any person who became a “citizen” other than by being born to “citizen” parents was a naturalized “citizen” and forever barred from being eligible to be elected President);
(5) The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring) (“The natives or indigenes are those born in the country of parents who are citizens”);
Continued . . .
II of VI
ReplyDelete(6) Speaker of the House, Rep. Langdon Cheves, in the House of Representative in 1814, reported in The Historical Register of the United States, Vol 3, Part 1, Sec. 7, p. 174 (Philadelphia 1814) (“The children have a natural attachment to the society in which they are born: being obliged to acknowledge the protection it has granted to their fathers, they are obliged to it in a great measure for their birth and education. … We have just observed that they have a right to enter into the society of which their fathers were members. But every man born free, the son of a citizen, arrived at years of discretion, may examine whether it be convenient for him to join in the society for which he was destined by his birth”);
(7) Alexander McLeod, A Scriptural View of the Character, Causes, and Ends of the Present War (2nd ed. 1815) (“I readily admit, that there is something in the idea of native country, which is intimately connected with the doctrine of allegiance. It is not, however the spot of earth, upon which the child is born, that connects him with the national society; but the relation of the child's parents to that society. . . . In the present discussion, nevertheless, it is necessary, that I distinctly state the true bond, which connects the child with the body politic. It is not the inanimate matter of a piece land, but the moral relations of his parentage. Let a child be born within the walls of a church, that does not make him a church member; but if the parent or parents be in connexion with the church, so is the offspring. Visible society, as it is provided for in the constitution of human nature, naturally seeks to perpetuate its own existence, by conferring upon children the membership of their parent. Each citizen too is supposed to reserve for his off spring the benefits of society. The Governor of the universe approves of this provision. Thus it is, that the country of the father is that of the child, and not because he happened to be born in its territory. . . . ‘By the law of nature alone, children follow the condition of their fathers, and enter into all their rights. The place of birth produces no change in this particular—for it is not naturally the place of birth that gives rights, but extraction.’ Vattel, Sec. 216—220.” Id. at 170-71);
(8) Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830) (children born in the country follow the citizenship of their parents; a child born in the United States to alien parents was alien born); (the Court explained that it was deciding a citizenship question not within the context of the old British colonies but within the context of a new society that had been created by revolution and which had set up a new government and formed new relations between the government and the people. Indeed, the Court told us that the doctrines of “broad . . . allegiance” and “perpetual allegiance” found in the old English common no longer applied in the new nation);
(9) Shanks v. Dupont, 28 U.S. 242, 245 (1830) (“children born in a country, continuing while under age in the family of the father, partake of his national character as a citizen of that country,” meaning that the father had to be a citizen for the child to be a citizen);
(10) Dred Scott v. Sandford, 60 U.S. 393 (1857) (Justice Daniels concurring) (citing and quoting Vattel’s Section 212 said: “The natives or natural-born citizens are those born in the country of parents who are citizens”);
(11) John A. Bingham, (R-Ohio) U.S. Congressman, March 9, 1866, Cong. Globe, 39th, 1st Sess., 1291(1866) (commenting on Civil Rights Act of 1866 said that “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen”);
Continued . . .
III of VI
ReplyDelete(12) Civil Rights Act of April 9, 1866, 14 Stat. 27 ("[A]ll persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States");
(13) United States v. Rhodes, 27 F. Cas. 785 (Cir. Ct. Ky 1866) (Justice Noah H. Swayne, commenting on whether the English common law defined a “citizen” or a “natural born citizen,” said: “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 told us that we derived the definition neither of a “citizen” nor of a “natural born Citizen” from the English common law);
(14) Slaughter-House Cases, 83 U.S. 36, 21 L.Ed. 394, 16 Wall. 36(1872) (the Fourteenth Amendment “was intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign States born within the United States”);
(15) Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (said that the Fourteenth Amendment does not define a “natural-born citizen,” and that the under the “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”);
(16) Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (“The law of nations, which becomes, when applicable to an existing condition of affairs in a country, a part of the common law of that country, declares the same rule. Vattel, in his Law of Nations (page 101), says: ‘As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, these children naturally follow the condition of their fathers and succeed to their rights. * * * The country of the father is, therefore, that of the children, and these become true citizens merely by their tacit consent.’ Again, on page 102, Vattel says: ‘By the law of nature alone, children follow the condition of their fathers and enter into all their rights.’ This law of nature, as far as it has become a part of the common law, in the absence of any positive enactment on the subject, must be the rule in this case”);
(17) United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (“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”);
Continued . . .
IV of VI
ReplyDelete(18) U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (a child born in the country to domiciled and resident alien parents is a “citizen of the United States” under the Fourteenth Amendment, but a child born in the country to “citizen” parents is a “natural born Citizen”); (Chief Justice Fuller, with whom Justice Harlan joined, explained in his dissent:
“Before the Revolution, the view of the publicists had been thus put by Vattel:
The natives, or natural-born citizens, are those born in the country of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this in consequence of what it owes to its own preservation, and it is presumed as matter of course that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children, and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.
Book I, c.19, § 212.
The true bond which connects the child with the body politic is not the matter of an inanimate piece of land, but the moral relations of his parentage. . . . The place of birth produces no change in the rule that children follow the condition of their fathers, for it is not naturally the place of birth that gives rights, but extraction.
And to the same effect are the modern writers, as for instance, [p709] Bar, who says:
To what nation a person belongs is by the laws of all nations closely dependent on descent; it is almost an universal rule that the citizenship of the parents determines it -- that of the father where children are lawful, and, where they are bastards, that of their mother, without regard to the place of their birth, and that must necessarily be recognized as the correct canon, since nationality is, in its essence, dependent on descent.
Int.Law. § 31.
The framers of the Constitution were familiar with the distinctions between the Roman law and the feudal law, between obligations based on territoriality and those based on the personal and invisible character of origin, and there is nothing to show that, in the matter of nationality, they intended to adhere to principles derived from regal government, which they had just assisted in overthrowing.
Manifestly, when the sovereignty of the Crown was thrown off and an independent government established, every rule of the common law and every statute of England obtaining in the Colonies in derogation of the principles on which the new government was founded was abrogated.
The States, for all national purposes embraced in the Constitution, became one, united under the same sovereign authority and governed by the same laws, but they retained their jurisdiction over all persons and things within their territorial limits except where surrendered to the General Government or restrained by the Constitution, and protection to life, liberty and property rested primarily with them. So far as the jus commune, or folk-right, relating to the rights of persons was concerned, the Colonies regarded it as their birthright, and adopted such parts of it as they found applicable to their condition. Van Ness v. Pacard, 2 Pet. 137.
Continued . . .
V of VI
ReplyDeleteThey became sovereign and independent States, and when the Republic was created, each of the thirteen States had its own local usages, customs and common law, while, in respect of the National Government, there necessarily was no general, independent and separate common law of the United States, nor has there ever been. Wheaton v. Peter, 8 Pet. 591, 658. [p710]
As to the jura corona, including therein the obligation of allegiance, the extent to which these ever were applicable in this country depended on circumstances, and it would seem quite clear that the rulemaking locality of birth, the criterion of citizenship because creating a permanent tie of allegiance, no more survived the American Revolution than the same rule survived the French Revolution.
Doubtless, before the latter event, in the progress of monarchical power, the rule which involved the principle of liege homage may have become the rule of Europe; but that idea never had any basis in the United States.
A Chief Justice Taney observed in Fleming v. Page, 9 How. 603, 618, though in a different connection:
It is true that most of the States have adopted the principles of English jurisprudence so far as it concerns private and individual rights. And when such rights are in question, we habitually refer to the English decisions not only with respect, but in many cases as authoritative. But in the distribution of political power between the great departments of government, there is such a wide difference between the power conferred on the President of the United States and the authority and sovereignty which belong to the English Crown that it would be altogether unsafe to reason from any supposed resemblance between them, either as regards conquest in war or any other subject where the rights and powers of the executive arm of the government are brought into question. Our own Constitution and form of government must be our only guide.
And Mr. Lawrence, in his edition of Wheaton (Lawrence's Wheaton, p. 920), makes this comment:
There is, it is believed, as great a difference between the territorial allegiance claimed by an hereditary sovereign on feudal principles and the personal right of citizenship participated in by all the members of the political community, according to American institutions, as there is between the authority and sovereignty of the Queen of England and the power of the American President, and the inapplicability of English precedents is as clear in the one case as in the other. The same view, with particular application to naturalization, was early taken by [p711] the American commentator on Blackstone. Tucker's Blackstone, Vol. 1, Pt. 2, Appx. p. 96.”
Wong Kim Ark, at 710-11 (C.J. Fuller dissenting).
(19) Perkins v. Elg, 307 U.S. 325(1939) (a child born in the United States to “citizen” parents who became so through naturalization was a “natural born Citizen”); and
(20) Schneider v. Rusk, 377 U.S. 163, 165 (1964) (a naturalized citizen has the same rights as a “citizen of the United States” at birth under the Fourteenth Amendment, but only a “natural born Citizen” is eligible to be president).
Continued . . .
VI of VI
ReplyDeleteObama’s father was born in Kenya when it was a British colony. Under the British Nationality Act 1948, he was born a British citizen. Under that same act, any child born to Obama the father, no matter where born, also became a British citizen. See the British Nationality Act 1948 (was similar to our statutes which provided that any child born abroad to British parents was a British citizen). Obama was born to an alien father who never became a U.S. citizen. That made Obama born subject to a foreign power as much as if he had been born to two alien parents. Obama was born a citizen of Great Britain. So, Obama may have been born a “citizen of the United States,” if he was born in Hawaii, but he was also born a British citizen. At age 2, under the British Independence Act 1963 and the Kenyan Constitution, his British citizenship also automatically converted to Kenyan citizenship. Under the current Constitution of Kenya, Mr. Obama is a citizen of Kenya.
Owing allegiance to any foreign power, Obama cannot be President and Commander in Chief. Under the Constitution, Article II, Section 1, Clause 5, the Commander in Chief, given his duties and daily workings in the international arena and his need to command our troops in time of war, must, from the moment of his birth, be in allegiance and loyalty only to the United States. Indeed, the President and military Commander must be born within the full and complete civil, political, and military allegiance and jurisdiction of the United States. In the eyes of the Founders, Framers, and the People, because Mr. Obama was born subject to a foreign power (Great Britain and Kenya), Mr. Obama is not an Article II “natural born Citizen” and is therefore not eligible to be President.
You express disagreement with my argument. You say that Wong Kim Ark ruled that the meaning of a natural born citizen comes from the English common law and refers to the place of birth. You then provide the “same rule” quote from Wong Kim Ark which I assume you believe supports your premises. The problem that I have with your argument is that Justice Gray told us what the law of England was at it related to a “natural born subject,” but he did not tell us what the law in the United States was as it related to a “natural born Citizen.” I also did not see anywhere in the Wong Kim Ark quote any reference to “natural born Citizen.” I did see a reference to “natural born subject.” But we have seen from my sources above that the two clause are not the same thing. Now would you be so kind as to provide the historical and legal sources which support any notion that Wong Kim Ark defined a “natural born Citizen” under the English common law rather than just a “citizen of the United States” at birth under the Fourteenth Amendment with the aid of the English common law. You can use the sources that Hollander, Ankeny, and Tisdale would have relied upon in order for their decision to be of any legal value.
Richard Allen,
ReplyDeleteI have heard of the word precedent and also know its meaning. It appears that you have also heard of the word, but I am not sure you know its meaning.
A precedent in the law is created when a court fully considers a question presented to it for resolution. The court focuses on that issue and by way of thoughtful and reasoned analysis arrives at its decision thereon. The court needs a well developed factual record so that the rule it creates is grounded on established facts. Anything that the court just incidentally comments upon by way of a side statement, which does not receive the court’s full attention, is not precedent, but rather dicta.
First, with the Chester Arthur matter, there was never any court decision declaring him a “natural born Citizen,” which means that we surely cannot have any type of legal precedent.
Second, we do not ultimately define the Constitution and the “natural born Citizen” clause by public opinion, but rather by decisions of our U.S. Supreme Court.
Third, even giving you the benefit of “precedent” being created in the public arena, the public never fully considered any question of whether Chester Arthur, being born in the United States to alien parents, was an Article II “natural born Citizen.” There was never any thoughtful and reasoned analysis on the matter by any member or group in the public. The battle lines were never drawn on the issue in the public which conflict would have brought critical information to the public arena and a better decision thereby.
Fourth, there is no evidence that the public even knew the facts concerning Chester Arthur’s birth circumstances, i.e., that he was born to alien parents.
Fifth, one constitutional violation does not give license to another.
So, as you can see Chester Arthur created no precedent and cannot be used as you contend to constitutionally legitimize Barack Obama's presidency.
Mario, et al;
ReplyDeleteYou say;
” … Article II refers to a “natural born Citizen”, but does not define it. In fact, the definition of a “natural born Citizen” is not found anywhere in the original or amended Constitution or any Act of Congress. …”
This statement is incorrect, misleading and damaging to the entire discussion.
Article I Section VIII Clause IV mandated the Congress, in part, to ” … establish an uniform Rule of naturalization …”
It would be, is, incorrect and misleading to separate “naturalization” and ITS uniform Rule from the subject of U.S. Citizenship by any degree given that ANY “uniform Rule of naturalization” MUST be in COMPLETE CONFORMITY to the RULE of Citizenship in the 1st instant.
In March of 1790 the Congress in whole passed ” … An act to establish an uniform rule of naturalization … ” Sess. II, Chap. 3; 1 stat 103. 1st Congress; March 26, 1790.
We certainly agree that only those persons who were then Citizens of any of the various States were then also “U.S. Citizens”.
Then the Act provided; ” … That any Alien (revised) 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 … (judicial process defined)….
…and then the uniform Rule is established………
” … 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. …”
The 1st benefit upon becoming a U.S. Citizen is to obtain the “derivative Birthright prerogative”, historically known as Jus Sanguinis, which bestows Citizenship upon the children of Citizens as an “Operation of Law”
The Act further provided ” … And the children of citizens of the United States that may be born beyond Sea, or out of the limits of the United States, shall be considered as natural born Citizens: …”
This further emphasized the universal attachment of the doctrine of Jus Sanguinis to the nature U.S. Citizenship.
I suggest that this “uniform Rule” remains as the CONTROLLING Statute at Large.
This Statute at Large was incorporated within the 1795 Act even though the 1795 Act Repealed the 1790 Act in whole.
(research of the minutes of the 1795 debates may well reveal that the purpose of Repealing the 1790 Act was in recognition that the Congress exceeded its authority when it “enlarged” the nature of a “natural born Citizen” which was made partly a “political creature” reserved to the Executive Articles.)
The authority of the 1795 Act, in response to some of the several States continuing to apply Jus Soli citizenship recognition within its borders, was established as the Supreme Law of the Land insofar as Citizenship / naturalization was concerned;
” … United States Congress, “An act to establish an uniform rule of Naturalization; and to repeal the act heretofore passed on that subject” (January 29, 1795).
For carrying into complete effect the power given by the constitution, to establish an uniform rule of naturalization throughout the United States:
SEC.1. Be it enacted by the Senate and House of Representatives of the United States of America, in Congress assembled, That any alien, being a free white person, may be admitted to become a citizen of the United States, or any of them, on the following conditions, and not otherwise: –
Aside from the emphasis on its authority and some changes to “process” the “uniform Rule” continued to be applied leaving the only notable change between the Acts the “consideration” of the foreign born children of Citizen parents; thereafter ” … shall be considered as citizens of the United States:…”
( a discussion on the limits and degrees of difference between being “considered a citizen” and “being born a citizen” would reveal that faults in either of documentation, process or circumstances” may have affects on both.)
(cont...)
(cont...)
ReplyDeleteIn spite of Justice Waites surmise that ” … The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. …”; it NOW seems to be an inarticulate and MISLEADING statement when the paragraphs preceding and proceeding this oft quoted passage are “RESORTED to”.
Those two paragraphs reveal that Justice Waite “RESORTED” to the Constitution, the “exclusionary prerequisite imperative requirement provision” of Article II and the the enumerated mandate to Congress at Article II Section VIII in order to “justify” his determination that the petitioner of the action was indeed a U.S. Citizen at birth without the need to further consider the effects of the 14th Amendment upon her citizenship status.
One other significant determination was made by Justice Waite with the pronouncement; ” … The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. …”
The reasoning of Justice Waite continues on in dealing with the subject of the petition of V. Minor but is easily applied to the subject of this discussion and allows me to say that NO NEW U.S. natural born Citizens were made “directly” by the 14th Amendments “collective naturalization declaratory born provision”.
( … and after extensive review of the residual effects of the 14th and 8 USC 1401 et seq. I’ve come to the conclusion that the ONLY remaining operative feature of the “collective naturalization declaratory born provision” is to provide the benefit of “U.S. Citizenship” to the children of alien foreign nationals”, present legally or otherwise. ….)
Of course, ALL of this remains “academic” until a case reaches the Federal Courts that possess the elements that rises to the high bar of being a Bona Fide Petition that asks the Court (1) to acknowledge the adjudicative fact that currently there is no uniformly acknowledged legal, (enforceable), definition of circumstances requisite for a U.S. natural born Citizen, insofar as Citizenship is concerned; (2) can the Office of POTUS be legally occupied sans determination of said ‘requisite circumstances’; (3)what are the ‘requisite circumstances’….(or some such construction of “?”)
Such a case might be designed under of 42 USC § 1983, 42 USC § 1985, if such a petitioner believed that being acknowledged as a U.S. natural born Citizen was a “CIVIL RIGHT”………and that such a RIGHT could only be affirmed, (relief requested), with the Courts response to the Constitutional question, 28 USC § 1331……….
Judge Thomas Anderson of USDC for the Western District of Tennessee Western Division in Case 2:12-cv-02143-STA; recently found;
“… ANALYSIS ..The Court holds that the allegations in this case arise under federal law because Plaintiffs well-pleaded state law claims for fraud and negligent misrepresentation have as a necessary element a substantial, disputed question of federal law. As such, Defendants’ removal of this case to federal court was proper, and Plaintiffs’ Motion to Remand must be denied...” [pg 4 id.]
And;
“… “It is undisputed that the material fact at issue in this case is whether under the circumstances of President Obama’s birth, the President is a natural born citizen,” a term set out in the United States Constitution and construed under federal law…” [pg 7 id]
“…a term set out in the United States Constitution and construed under federal law…”; and I contend that RESORT must be limited to THESE sorces………….
(Let it be known I mean no disrespect to any that seek to resolve this issue by “resorting elsewhere……however, the Constitution became the Supreme Law of the Land upon its adoption and the Acts of Congress addressed herein abrogated the affects of any residual “common laws”, made plain with the admonition of the 1795 Act; ” … on the following conditions, and not otherwise: — “)
[did the continuation post...?] (cont...)
ReplyDeleteIn spite of Justice Waites surmise that ” … The Constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. …”; it NOW seems to be an inarticulate and MISLEADING statement when the paragraphs preceding and proceeding this oft quoted passage are “RESORTED to”.
Those two paragraphs reveal that Justice Waite “RESORTED” to the Constitution, the “exclusionary prerequisite imperative requirement provision” of Article II and the the enumerated mandate to Congress at Article II Section VIII in order to “justify” his determination that the petitioner of the action was indeed a U.S. Citizen at birth without the need to further consider the effects of the 14th Amendment upon her citizenship status.
One other significant determination was made by Justice Waite with the pronouncement; ” … The amendment did not add to the privileges and immunities of a citizen. It simply furnished an additional guaranty for the protection of such as he already had. …”
The reasoning of Justice Waite continues on in dealing with the subject of the petition of V. Minor but is easily applied to the subject of this discussion and allows me to say that NO NEW U.S. natural born Citizens were made “directly” by the 14th Amendments “collective naturalization declaratory born provision”.
( … and after extensive review of the residual effects of the 14th and 8 USC 1401 et seq. I’ve come to the conclusion that the ONLY remaining operative feature of the “collective naturalization declaratory born provision” is to provide the benefit of “U.S. Citizenship” to the children of alien foreign nationals”, present legally or otherwise. ….)
Of course, ALL of this remains “academic” until a case reaches the Federal Courts that possess the elements that rises to the high bar of being a Bona Fide Petition that asks the Court (1) to acknowledge the adjudicative fact that currently there is no uniformly acknowledged legal, (enforceable), definition of circumstances requisite for a U.S. natural born Citizen, insofar as Citizenship is concerned; (2) can the Office of POTUS be legally occupied sans determination of said ‘requisite circumstances’; (3)what are the ‘requisite circumstances’….(or some such construction of “?”)
Such a case might be designed under of 42 USC § 1983, 42 USC § 1985, if such a petitioner believed that being acknowledged as a U.S. natural born Citizen was a “CIVIL RIGHT”………and that such a RIGHT could only be affirmed, (relief requested), with the Courts response to the Constitutional question, 28 USC § 1331……….
Judge Thomas Anderson of USDC for the Western District of Tennessee Western Division in Case 2:12-cv-02143-STA; recently found;
“… ANALYSIS ..The Court holds that the allegations in this case arise under federal law because Plaintiffs well-pleaded state law claims for fraud and negligent misrepresentation have as a necessary element a substantial, disputed question of federal law. As such, Defendants’ removal of this case to federal court was proper, and Plaintiffs’ Motion to Remand must be denied...” [pg 4 id.]
And;
“… “It is undisputed that the material fact at issue in this case is whether under the circumstances of President Obama’s birth, the President is a natural born citizen,” a term set out in the United States Constitution and construed under federal law…” [pg 7 id]
“…a term set out in the United States Constitution and construed under federal law…”; and I contend that RESORT must be limited to THESE sorces………….
(Let it be known I mean no disrespect to any that seek to resolve this issue by “resorting elsewhere……however, the Constitution became the Supreme Law of the Land upon its adoption and the Acts of Congress addressed herein abrogated the affects of any residual “common laws”, made plain with the admonition of the 1795 Act; ” … on the following conditions, and not otherwise: — “)
Re: "If the alien-born father of a native-born child was not a subject, then his child would not be "born under the ligeance of a subject" and therefore the child, although native-born cannot be a subject at all."
ReplyDeleteWho told you that It is wrong.
This is what Blackstone said:
“The children of aliens, born here in England, are, generally speaking, natural-born subjects and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is alien.” http://www.lonang.com/exlibris/blackstone/
(And the minor exceptions referred to in “generally speaking” refers to the children of foreign diplomats.)
That says that the children of aliens, regardless of the citizenship of their fathers, became Natural Born Subjects.
I suppose that you can claim that Natural Born Subjects were not the same as Natural Born Citizens, but according to the US Supreme Court in the Wong Kim Ark case, the meaning of Natural Born in the USA---and you notice that the Wong Kim Ark case refers to the 13 colonies and the early states AND UNDER THE CONSTITUTION was the same as the use of Natural Born in the common law.
That is what NINE state courts and one federal court have ruled. They ruled that indeed the Wong Kim Ark case was the key decision, and that it had ruled that the meaning of Natural Born came from the common law and referred to the place of birth, as Edwin Meese, Ronald Reagan's attorney general, recognizes:
“Under the longstanding English common-law principle of jus soli, persons born within the territory of the sovereign (other than children of enemy aliens or foreign diplomats) are citizens from birth. Thus, those persons born within the United States are "natural born citizens" and eligible to be President. Much less certain, however, is whether children born abroad of United States citizens are "natural born citizens" eligible to serve as President ..."---- Edwin Meese, et al, THE HERITAGE GUIDE TO THE CONSTITUTION (2005) [Edwin Meese was Ronald Reagan’s attorney general, and the Heritage Foundation is a well-known Conservative organization.]
re jus sanguinus in the Naturalization Act. Answer: Yes, that added the abilities of children born outside of the USA to US citizens to the existing definition. What was the exiting definition: Birth in the USA, as this quotation from 1803 shows:
"Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. ...St. George Tucker, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
(As you can see, that refers only to the place of birth, not to the citizenship of the parents. Natural Born Citizens were simply "those born within the state."
United Natural Born Citizen,
ReplyDeleteI of II
I do not understand why you say that you do not agree with my statement that “Article II refers to a ‘natural born Citizen,’ but does not define it. In fact, the definition of a ‘natural born Citizen’ is not found anywhere in the original or amended Constitution or any Act of Congress.”
You recognize that Justice Waite in Minor said the same thing and that he resorted to defining a “natural born Citizen” under the common law with which the Framers were familiar when they adopted the Constitution, with that common law providing that a "natural-born citizen" was a child born in a country to parents who were its citizens at the time of the child’s birth. But you add that what he said is misleading without actually showing how he was wrong.
It appears that you believe that in looking for the meaning of some term in the Constitution, that by resorting to sources outside the Constitution (e.g., Congressional Acts) one is still using the actual text of the Constitution to define that term. This is incorrect. The first place a court looks to in defining the Constitution is the actual text of that document. If the text does not help, then it must resort to examining source outside the Constitution. And in that process, not all sources are created equal. Our U.S. Supreme Court has always maintained that sources contemporaneous to the passage of the Constitution or relatively close to it are more authoritative than ones that follow in the distant years thereafter (e.g., Chief Justice John Marshall in The Venus, 12 U.S. 8 Cranch 253, 289 (1814) versus Justice Gray in U.S. v. Wong Kim Ark, 169 U.S. 649 (1898). For example, the early naturalization acts, passed by the First and Third Congress which were populated by many Founders and Framers, are very valuable in this regard.
You search for the meaning of a “natural born Citizen” outside the Constitution by examining the early naturalization acts. Then it seems that through a process of elimination you have arrived at a definition of a “natural born Citizen.” I have advocated this approach for years now. In fact, I am not aware of anyone in the Obama eligibility dispute ever having argued beforehand that the definition of a “natural born Citizen” could be found in the early naturalization acts through a process of elimination. And I do not mean by reference to the acts’ treatment of children born out of the United States. It appears that researches believed that the acts did not apply to children born in the United States. Hence, they focused on that part of the acts which treated only children born out of the United States. But while that analysis is valuable in that it shows the controlling effect that the Founders and Framers gave to birth to citizen parents, it did not provide the full picture because it did not show the controlling effect that the Founders and Framers also gave to place of birth. Hence, my argument has always been that the secret lies in how the acts treated children born in the United States, i.e., they treated children born in the United States to alien parents as alien born and in need of naturalization after birth, which we know disqualifies them from being “natural born Citizens.” I also showed that the only child over whom Congress did not assert its naturalization powers in these early acts, meaning that that child did not need to be naturalized, was the child born in the United States to citizen parents. Hence, I arrived at the only definition of a “natural born Citizen” by a process of elimination, with that definition being a child born in the country to parents who were its citizens at the time of the child’s birth.
Continued . . .
II of II
ReplyDeleteBut all this does not mean that either the Constitution or Acts of Congress actually and directly define a “natural born Citizen.” Again, the Constitution is not nor is it intended to be a dictionary. Nor does any act of Congress other than the short-lived Naturalization Act of 1790 even mention the clause “natural born Citizen,” let alone define it. The 1790 Act only treated children born out of the United States to citizen parents as “considered as natural born citizens.” But this was not a definition of the clause, for the statement refers to “natural born citizen” as though it had some other definition and these children were only being treated the same as those other “natural born citizens.” Additionally, the 1790 Act was an exercise of the First Congress’s naturalization power which is neither needed nor warranted in creating a “natural born Citizen. Moreover, I have explained in comments on this blog that James Madison and his committee in the Third Congress recognized the First Congress’s error in using the clause “natural born citizen” and replaced it in the 1795 Act with “citizen of the United States.” But as I have demonstrated, this does not mean that we cannot logically conclude what is a “natural born Citizen” from these early Acts of Congress. Again, I have long maintained that we can, given that the early naturalization acts treated children born in the United States to alien parents as aliens themselves. Hence, any child born in the United States to alien parents was not only not a “citizen of the United States,” but surely also not a “natural born Citizen.” In short, you have adopted, knowingly or unknowingly, all my arguments, but for some reason believe that your position is different from mine.
I hope this clarifies things for you.
Re: "given that the early naturalization acts treated children born in the United States to alien parents as aliens themselves. "
ReplyDeletePlease show a citation for that alleged "fact." The evidence is to the contrary, that US law considered the children born in the USA to be citizens at birth regardless of the citizenship of their parents.
"Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."---William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
Smrstrauss @January 23, 2013 at 12:59 PM,
ReplyDeleteI of II
You attempt to make up for the fact that Wong Kim Ark (1898) defines a “natural born subject” under English common law, and does not define a “natural born Citizen” under American common law any differently from Minor v. Happersett (1875), by equating Wong Kim Ark’s use of the two words “natural born” which it used when referring to and defining a “natural born subject” with the same words, “natural born,” in “natural born Citizen,” which it did not define. Your problem is the reality that we are defining “natural born Citizen” and “natural born subject,” both words of art, and that Wong Kim Ark specifically defined a “natural born subject,” not a “natural born Citizen.” Each one of these clauses has its own distinct meaning. You simply cannot take pieces of each clause and match them up and conclude that the clauses mean the same, especially when Wong Kim Ark did not give any indication that such an approach is correct. This is a grave logical error on your part.
I know that state courts and one federal court have ruled that Wong Kim Ark’s definition of a “citizen of the United States” under the Fourteenth Amendment equates to defining an Article II “natural born Citizen.” But as I have explained in my article, it is error to conflate the two definitions. Hence, these courts’ reliance on Wong Kim Ark is misplaced. Additionally, none of these courts is the U.S. Supreme Court which has the final say on this matter.
You again repeat what you and others of your group plaster all over the internet as being made by Edwin Meese when in fact the quote was made by James C. Ho. First, Ho’s love affair with Wong Kim Ark jus soli puts Ho in a bind. Ho argues that, under English common law jus soli, simply being born in the United States makes one a born citizen of the United States which “thus” makes one a “natural born Citizen.” But then he cannot explain why if just being born a citizen makes one a “natural born Citizen,” why should Wong Kim Ark have concluded that persons born abroad to citizen parents who are also born “citizens of the United States” are not “natural born Citizens.” Ho offers no explanation why Wong Kim Ark would provide that there is one type of “born citizen” who is a “natural born Citizen” and then there is another type of “born citizen” who is not. Ho offers no explanation why Wong Kim Ark gave birth on soil so much more power than birth to parents? Not having an answer, Ho simply suggests that we not pay any attention to Wong Kim Ark when it comes to the question of whether our citizens born abroad to citizen parents are “natural born Citizens.” He submits that they are. I guess Ho uses Wong Kim Ark anyway he wants, given the particular needs of the moment. Second, Ho is simply wrong that any born citizen is a “natural born Citizen.” I have covered this topic in this article. The fact that Ho has to manipulate Wong Kim Ark’s born citizen depending on his needs proves that I am right that “born citizen” is not any definition, but rather only a birth status which depends on birth circumstances for its coming into being.
Continued . . .
II of II
ReplyDeleteRegarding St. George Tucker, you read too much into “born within the state” in your quote. Tucker did not say that such event was sufficient to make a “natural born Citizen.” Rather, we know the totality of what Tucker wrote that “born within the state” was only necessary, but not sufficient. Let us examine what St. George Tucker:
“3. Civil rights, taken in a strict and confined sense, as contradistinguished from natural and social rights, are such as appertain to a man as a citizen or subject, of this, or that, particular state or country; in his private and individual capacity as a free agent, and member of the body politic or state, in respect to the state or body politic; and contradistinguished from such as might be due to him as a magistrate, legislator, judge, or other public agent, character, or functionary. The right of electing, and being elected to, any public office or trust, may be considered as among the most important of these rights.
These civil rights may be inherited, or acquired, in the United States: they are acquired by a foreigner who is naturalized; they are inherited by all whose parents, at the time of their birth, were citizens.
***
Persons naturalized according to these acts, are entitled to all the rights of natural born citizens, except, first, that they cannot be elected as representatives in congress until seven years, thereafter. Secondly, nor can they be elected senators of the United States, until nine years thereafter. Thirdly, they are forever incapable of being chosen to the office of president of the United States. Persons naturalized before the adoption of the constitution, it is presumed, have all the capacities of natural born citizens. See C. U. S. Art. 1, 2.”
http://constitution.org/tb/tb2.htm
So there you have it. Any child who was not born to “citizen” parents had to be naturalized in order to be a “citizen.” Any child who became a “citizen” and who was not born to “citizen” “parents” was a “naturalized” “citizen” and not a “natural born Citizen.” As a “naturalized” “citizen,” he or she was “forever incapable of being chosen to the office of president of the United States.” Hence, only if one was born to “citizen” “parents” could one possess the “civil right” to be elected President. So, satisfying the definition of a “citizen” at birth under the Fourteenth Amendment or Wong Kim Ark does not make one a “natural born Citizen.” Rather, satisfying the definition of a “natural-born citizen” under Minor does.
Re: "we are defining “natural born Citizen” and “natural born subject,”
ReplyDeleteActually, what we are defining is simply the Natural Born part of Natural Born Citizen, which was the same as the Natural Born part of Natural Born Subject.
The terms "citizen" and "subject" are defined by law. Laws change, but the original meaning of both terms has always remained the same. It was the meaning in Britain, and it was the meaning in the 13 colonies. It is still the original meaning.
When a black slave became a citizen under the 14th Amendment, she or he would be also a Natural Born Citizen if she or he fulfilled the existing definition of the term Natural Born.
The US Supreme Court in Wong Kim Ark says that the meaning of Natural Born in the American colonies (meaning under American common law) was exactly the same as in England, meaning under the old common law, the one that had been in effect for about 300 years before the US Constitution.
Now, get this, IF the writers of the US Constitution had meant any other meaning for Natural Born other than the one that they were familiar with THEY WOULD HAVE SAID SO.
SO, IF they had gotten the idea from Vattel (who is not even mentioned once in the Federalist Papers), they would have said so in a letter or an article, but there is no such article. Instead the writers of the US Constitution (not Ramsay, he was not one of them) ONLY used the term Natural Born in any of their writings just the way that they were familiar with it in the common law---and they were mainly lawyers and jurists.
To switch from the common law meaning without telling anyone would not be in keeping with the careful nature of the writers.
And, if they had indeed switched (which they didn't), they sure fooled Tucker and Rawle, who both thought (correctly, of course) that the term came from the common law:
Continuing:
ReplyDelete"Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. ...St. George Tucker, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
(Re "necessary and sufficient." The meaning is very clear from the quotation. There is NO mention of parents. No mention of parents at all. The only reference is the place of birth. Tucker believed [correctly] that the meaning of Natural Born came from the common law and referred to the PLACE of birth.)
And Rawle:
"Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."---William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
(Again, no mention of parents. No mention of parents at all.)
BOTH of these experts who were familiar with the writers of the Constitution knew that the term comes from the common law and refers to the place of birth.
Which, of course, the US Supreme Court did too:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution."
(Again, no mention of parents. And no indication that the term comes from Vattel or from Natural Law.)
Continuing:
ReplyDeleteAs for "Ho is simply wrong that any born citizen is a “natural born Citizen.”
Answer. No, he is right, and YOU are wrong.
On October 1, the US Supreme Court turned down an appeal of the Farrar ruling in Georgia, which had held that the meaning of Natural Born Citizen was defined in the Wong Kim Ark case, and that every child born in the USA except for the children of foreign diplomats is a Natural Born Citizen.
That means that in Georgia, and by extension in the other eight state and federal court areas because of their rulings---all of which had held that the meaning was defined by the Wong Kim Ark case and not by the Minor v. Happersett case--- the meaning of Natural Born is the one that the US Supreme Court ruled in the Wong Kim Ark case (meaning that it comes from the common law and refers to the place of birth and that EVERY child born in the USA is a NBC except for the children of foreign diplomats).
Unless and until the US Supreme Court takes a case and overturns this ruling or unless a Constitutional Amendment is passed changing the meaning of Natural Born from what the US Supreme Court ruled in the Wong Kim Ark case---that is the law in the USA.
And everybody but you and a few other birther zealots knows it. For example, birthers and two-fers had been after the members of the US Electoral College in the 2008 and 2012 elections to change their votes from Obama to McCain or from Obama to Romney or for the Obama electors not to vote---but not one of them did. Not one of the Obama electors in the 365 he won in 2008 or the 332 he won in 2012 changed their vote or decided not to vote out of the nutty birther claim that Obama was not born in the USA or your legal theory that two citizen parents are required.
Ho and Rawle and Tucker and the Nine state and federal courts are right, as are the members of the Electoral College, and senators Hatch and Graham and former senator Fred Thompson, and you are wrong.
Re: "So there you have it. Any child who was not born to “citizen” parents had to be naturalized in order to be a “citizen.”
ReplyDeleteThat is by no means clear from what you show.
And it certainly was not the view held by Supreme Court Justice Noah Haynes Swayne, who 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...since as before the Revolution.[18]" United States v. Rhodes, 27 Fed. Cas. 785 (1866).
Notice the "the common law of this country...SINCE AS BEFORE THE REVOLUTION..."
RE: "Any child who was not born to “citizen” parents had to be naturalized in order to be a “citizen.”
ReplyDeleteAnswer, that is by no means clear from what you posted, and it certainly was disagreed with by Supreme Court Justice Noah Haynes Swayne: "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...since as before the Revolution.[18]" United States v. Rhodes, 27 Fed. Cas. 785 (1866).
Notice the "common law of this country." Notice the "since as before the Revolution."
Moreover, you have not shown any federal or state laws indicating that the US-born children of foreigners had to be naturalized. Not one law.
Well, puzo1;
ReplyDeleteI'm just a lowly pro-se litigant that has failed in each attempt to get the Courts, State & Fed, to acknowledge that there is no legal, (enforceable), definition of requisite circumstances for the Article II form of U.S. Citizenship.
But neither have they what the requisite circumstances are, insofar as citizenship is concerned.
But it is disconcerting for you to say the the CONGRESS has NEVER defined in what circumstances a person could be "considered as" a U.S. natural born Citizen.
It is ALSO disconcerting that a person of your intellect and obvious legal expertise continue to entertain arguments that suggest "English common law" could have ANY influence after the 1790 Act with any enforce-ability and certainly NOT after the 1795 Act made the authority of that Act explicit with; " ... on the following conditions, and not otherwise: -- ..."
I had hoped to peek your interest in pursuing the Citizenship Question from the Civil Rights perspective, but if you're content to remain mired in 'un-enforceable SCOTUS precedents and Blackstone foreign law" on a subject with such Constitutional specificity that it has NO historical record of litigation, well, I'll just have to continue on knowing what I know.
Just 1 last question; Do you NOT agree with Judge S. Thomas Adnerson's plain and unambiguous statement ".... “natural
born citizen,” a term set out in the United States Constitution and construed under federal law..." (?)
Well, a 2 part single question; Do you not see how the ENTIRETY of "requisite circumstances" are easily "construed" by statutory interpretation of the 1790 / 95 Act's (?)
smrstrauss said...
ReplyDeleteRe: "If the alien-born father of a native-born child was not a subject, then his child would not be "born under the ligeance of a subject" and therefore the child, although native-born cannot be a subject at all."
Who told you that It is wrong."
@ smrstrauss
It is straight from the very benchmark 17th century English common law, ie. Calvin's case.
It IS correct that if a child was born native in the English realm, to a father who was not a subject, then that child was alien-born and NOT a NBS, because the child was not born under the ligeance of a subject.
It makes no difference as to why the alien father was not a subject, it was the FACT that an alien father was not a subject, which caused his native-born child to be an alien-born and not a NBS.
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.
But if Enemies should come into any of the king’s dominions and surprise any Castle or Fort, and |[18 b] possess the same by hostility, and have issue there, that issue is no subject to the king, though he be born within his dominions, for that he was not born under the king’s ligeance or obedience. "
and another occasion where Lord Coke says the same thing...
"....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."
It's really basic smrstrauss.
Do you have a comprehension problem?
If a native born child of 17th century England had to be born under the ligeance of a subject, to be a natural born subject, then a native born child of 18th century US had to be born under the ligeance of a US citizen, to be a natural born citizen.
United Natural Born Citizens,
ReplyDeleteYou said: “But it is disconcerting for you to say the the CONGRESS has NEVER defined in what circumstances a person could be "considered as" a U.S. natural born Citizen.” I did no such thing. I already explained the 1790 and 1795 Acts.
You said: “It is ALSO disconcerting that a person of your intellect and obvious legal expertise continue to entertain arguments that suggest "English common law" could have ANY influence after the 1790 Act with any enforce-ability and certainly NOT after the 1795 Act made the authority of that Act explicit with; " ... on the following conditions, and not otherwise: -- ..." I do not know where you got that from. I never made any such claims. On the contrary, I have always maintained that the early naturalization acts abrogated English common law on the matter of national citizenship. I have also written tons of materials, including briefs to the federal and state courtds, showing that a “natural born Citizen” is defined under American common law, not English common law.
You said: “I had hoped to peek your interest in pursuing the Citizenship Question from the Civil Rights perspective, but if you're content to remain mired in 'un-enforceable SCOTUS precedents and Blackstone foreign law" on a subject with such Constitutional specificity that it has NO historical record of litigation, well, I'll just have to continue on knowing what I know.” In all my cases, I argued the “Civil Rights perspective.”
You said: “Just 1 last question; Do you NOT agree with Judge S. Thomas Adnerson's plain and unambiguous statement ".... “natural born citizen,” a term set out in the United States Constitution and construed under federal law..." (?) Yes, I agree.
You said: “Well, a 2 part single question; Do you not see how the ENTIRETY of "requisite circumstances" are easily "construed" by statutory interpretation of the 1790 / 95 Act's (?)” Yes, I do see it.
Smrstrauss @January 23, 2013, 1:22PM,
ReplyDeleteYou said: “Re: ‘given that the early naturalization acts treated children born in the United States to alien parents as aliens themselves.’ Please show a citation for that alleged ‘fact.’ The evidence is to the contrary, that US law considered the children born in the USA to be citizens at birth regardless of the citizenship of their parents.”
My response: “Publius” (the authors of the Federalist Papers used the pseudonym "Publius", in honor of Roman consul Publius Valerius Publicola) on October 7, 1811, commenting and applying the Naturalization Act of 1802 (which was the same as the Naturalization Act of 1790 and 1795 in the particular at issue) in The Alexandria Herald, concerning the “Case of James McClure,” stated:
“Mr. Rodman hints, that it would have been sufficient for James McClure to have been born in the United States—he is mistaken. The law of the United States recognizes no such claim. The law of Virginia, of 1792, does—for, “all free persons born within the territory of this commonwealth,” is deemed a citizen. The law of Virginia considers him as a son of the soil. An alien, as well as a citizen, may beget a citizen, but the U. States’ act does not go so far. A man must be naturalized to make his children such.”
Publius, in 1811, living when the acts were passed by Congress, would know what Congress intended when it passed the naturalization acts. In that connection, Publius tells us that it did not matter where a child was born. Even if the child was born in the United States, if his or her parents were aliens, he or she was an alien. Regardless of where the child was born, the child’s parents had to naturalize in order to make their children citizens. The historical record tells us that Secretary of State, James Monroe, who was serving the James Madison Administration, eventually declared McClure to be a “Citizen of the United States” under the Naturalization Act of 1892, not because he was born in South Carolina on April 21, 1785, but because a few months after he was born, his British father naturalized as a “citizen of the United States.” Note that even though McClure was born in South Carolina after the Revolution, he was not declared a “natural born Citizen” under the common law, but rather only a “Citizen of the United States” under the Naturalization Act of 1802, which obviously was a naturalization act. Given the critical distinction that the Founders and Framers made in Article I and II between a “natural born Citizen” and a “Citizen of the United States” (Congressmen could be “Citizens of the United States” but future Presidents had to be “natural born Citizens”), the James Madison Administration would have used the clause “natural born Citizen” if that is what McClure was at birth rather than using “Citizen of the United States.” I will take Publius’ and the James Madison’s Administration’s word in 1811 on what the naturalization acts meant rather than yours in 2012. Today, Madison is considered the father of the Constitution. Madison became a leading member of the U.S. House of Representatives from Virginia (1789–1797), Secretary of State (1801–1809), and ultimately the fourth President of the United States. He was also on the House committee which removed the “natural born citizen” language of the 1790 Naturalization Act and replaced it in the 1795 Naturalization Act with “citizen of the United States.” Hence, he surely knew the difference between a “natural born Citizen” and a “Citizen of the United States.”
For more information on the James McClure case, see my brief filed in the Kerchner and Laudenslager v. Obama Ballot Challenge in the Commonwealth Court of Pennsylvania, accessed at http://www.scribd.com/doc/83104811/Kerchner-Laudenslager-v-Obama-Ballot-Challenge-Brief-on-Behalf-of-Objectors-Filed-28Feb2012 .
Smrstrauss @ January 23, 2013 at 1:22 PM,
ReplyDeleteYou provide this quote: "Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."---William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829).
But there is no U.S. Supreme Court decision that agrees with Rawle with respect to defining a "natural born Citizen." The definition of a “natural-born citizen” that the unanimous U.S. Supreme Court gave in Minor (requiring birth in the country to citizen parents) proves Rawle to be wrong. Minor even added that there were “some authorities” who maintained that a child born in the country to alien parents was a “citizen.” Rawle would be among these authorities. The Court said “there have been doubts” whether those authorities were correct. So, Rawle was not only wrong on “natural born Citizens,” but potentially wrong also on “citizens of the United States.” Wong Kim Ark resolved those doubts favorable to Rawle, but only with respect to a “citizen of the United States” under the Fourteenth Amendment (which did not exist when Rawle made his statement), not with respect to a “natural born Citizen” under Article II. So Rawle stretched matters a bit. He was eventually partially vindicated, but only because of the passage of the Fourteenth Amendment which received an expansive interpretation by Wong Kim Ark. As it turned out, Rawle should have limited his statement to “citizens of the United States” and not referred to “natural born citizens.”
Smrstrauss @ January 23, 2013 at 3:29 PM,
ReplyDeleteI of II
You insist that “natural born citizen” and “natural born subject” meant the same thing to the Founders and Framers. By doing so, you in effect deny the happening of the American Revolution. The Revolution completely changed the concept of allegiance in America. We replaced the feudal notion of imposed land-based subjecthood with its indelibility of allegiance with Vattel-Lockean consent-based citizenship with its right of expatriation, based on natural law and the law of nations. The Founders and Framers revealed their rejection of subjecthood and its meaning under the English common law when they replaced the “natural born subject” with the “natural born citizen.” While the new free and independent states, so as to maintain a civil society and not return to a state of nature, selectively accepted for application in their respective states the English common law, but only until abrogated by their legislatures, that law was not adopted as the law of the national government. Article III jurisdiction of the federal courts arose only under the Constitution, the Laws of the United States, and Treaties.” The “Laws of the United States” included Acts of Congress and the law of nations. See Article I, Section 8, Clause 10, which incorporated the law of nations into the Constitution and therefore made it part of our national law and the law of the land. The Constitution did not incorporate the English common law into “the Laws of the United States.”
We no longer followed the concept of broad allegiance which existed under the English common law, broad allegiance meaning that even aliens in amity within the King’s dominion were treated by him as his subjects who owed him a local albeit temporary allegiance. Rather, in the United States, aliens located within our territory were expected to obey our laws, but under no circumstances were they considered citizens unless they formally naturalized under our laws. The change in our citizenship laws which the American Revolution brought was eloquently stated by Inglis v. Sailors’ Snug Harbor, 28 U.S. 99 (1830). The majority of the Court, which included Chief Justice Marshall, in a decision written by Justice Thompson, prefaced its decision, in which it rejected English common law jus soli citizenship and embraced the law of nations jus sanguinis model of citizenship, by explaining:
“This question as here presented, does not call upon the court for an opinion upon the broad doctrine of allegiance and the right of expatriation, under a settled and unchanged state of society and government. But to decide what are the rights of the individuals composing that society, and living under the protection of that government, when a revolution occurs; a dismemberment takes place; new governments are formed; and new relations between the government and the people are established.” Id. at 120.
Hence, the Court explained that it was deciding a citizenship question not within the context of the old British colonies but within the context of a new society that had been created by revolution and which had set up a new government and formed new relations between the government and the people. Indeed, the Court told us that the doctrines of “broad . . . allegiance” and “perpetual allegiance” found in the old English common no longer applied in the new nation. Rather what now applied in the United States was minor children inheriting the citizenship of their parents who were given the natural right to cast off that citizenship upon reaching the age of majority.
Continued . . .
II of II
ReplyDeleteJustice Noah H. Swayne, in United States v. Rhodes, 27 F. Cas. 785 (Cir. Ct. Ky 1866), who was later part of the unanimous U.S. Supreme Court in Minor v. Happersett which in 1875 informed that the Framer’s definition of a “natural-born citizen” came from the common law (meaning American common law and not English common law), in searching for a definition of a “citizen” (not a “natural born citizen”), said: “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 told us that our concepts of “citizen” and “natural born citizen” were not found in the English common law. The court then explained that “[c]itizen under our constitution and laws means free inhabitants born within the United States or naturalized under the laws of congress.” Hence, our citizenship definitions were based on our own Constitution and laws.
In Minor, Justice Swayne joined the whole Court in holding that a child born in a country to parents who were its “citizens” when the child was born was not only a “citizen” like his or her parents, but also a “natural-born citizen” As to children born in the United States to alien parents, the Court said that “there have been doubts” whether such children were “citizens.” This expression of doubt by the unanimous U.S. Supreme Court, which included Justice Swayne, clearly recognized that there was a doubt whether the jus soli of the English common law had any more relevance in the United States in determining U.S. citizenship.
Finally, we know that Wong Kim Ark in 1898 held that a child born in the United States to domiciled and resident alien parents was a “citizen of the United States” at birth under the Fourteenth Amendment. But the Court also conceded that while that child was just as much a “citizen” as the “natural born” child of “citizen” parents by virtue of being born in the country, that child was not a “natural-born citizen” because of not being born to “citizen” parents.
Hence, to say that the Founders and Framers defined a “natural born citizen” the same as the English and colonists defined a “natural born subject” is to deny that the American Revolution ever happened and that our U.S. Supreme Court has long informed that our new republican nation adopted a new allegiance and citizenship model. And to take only “natural born” from each clause, so as to avoid having to address the change from “subject” to “citizen,” does no better.
smrstrauss @ January 23, 2013 at 3:37 PM,
ReplyDeleteYou again misrepresent quoted information. Your quote of St. George Tucker is not accurate and misleading. You, along with others who surf the net in defense of Obama, have left out the first part of the quote which shows that Tucker was only repeating what someone else said. The quote that you have provided is not Tucker’s opinion on citizenship, but someone else’s. Here is the full quote:
"A very respectable political writer makes the following pertinent remarks upon this subject. 'Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration.'”
Also, this quote only addresses citizenship before the Constitution was adopted. The Constitution in Article I and II recognizes many people who were born before July 4, 1776 as “Citizens.” These people were not “natural born Citizen” because they were not born in the country called the United States nor were they born to “citizen” parents. These persons would have been our early presidents who were born before July 4, 1776.
The first person who who were born after July 4, 1776, in the United States to “citizen” parents were the first “natural born Citizens.”
If you read what Tucker wrote on the subject, you will see that the first “Citizens” were only treated as or deemed to be “natural born Citizens” because they, with at least 35 years of age and 14 years of residency within the United States, had the right to be elected President. They were not actually “natural born Citizens.” Tucker wrote: “Persons naturalized before the adoption of the constitution, it is presumed, have all the capacities of natural born citizens. See C. U. S. Art. 1, 2.” In fact, the Framers had to grandfather the first “Citizens” to be eligible to be President. But for those born after the Constitution was adopted, along with the minimum of 35 years of age and 14 years of residency within the United States, only the true “natural born Citizens” could be eligible to be elected President, i.e., only those children who were born in the country to citizen parents.
Also, and on the contrary, Tucker believed that the "civil right" to be elected President belonged only to the children of citizens. See http://puzo1.blogspot.com/2012/03/putative-president-barack-obamas.html.
Additionally, Tucker did not agree with Rawle, not only on expatriation but also on defining a "natural born Citizen." Tucker is much more authoritative than Rawle.
I have already addressed your "same rule" Wong Kim Ark quote.
smrstrauss @January 23, 2013 at 3:38 PM,
ReplyDeleteYou continue to misrepresent the holding in Wong Kim Ark. The Court did not hold Wong to be an Article II "natural born Citizen." Rather, it held he was a "citizen of the United States" under the Fourteenth Amendment.
Smrstauss @ January 23, 2013 at 4:18 PM,
ReplyDeleteIn response to my statement, "Any child who was not born to 'citizen' parents had to be naturalized in order to be a 'citizen,'" you cite Justice Swayne in Rhodes to prove that I am wrong. But you fail to realize that 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 U.S. Supreme Court decision in Minor. In Minor he agreed with Justice Waite’s statement that at common law, any child who was not born in the country to citizen parents was an alien or foreigner. So even if what you say about Justice Swayne in Rhodes is correct, the U.S. Supreme Court decision in Minor trumps the lower court decision in Rhodes.
You said: “Moreover, you have not shown any federal or state laws indicating that the US-born children of foreigners had to be naturalized. Not one law.” You are wrong here. I have provided these statutes and they are the Naturalization Acts of 1790, 1795, 1802, and 1855. I have also provided you with the 1811 citizenship case of James McClure, resolved by the James Madison Administration, which supports my reading of these statutes.
"Besides, as far as anyone would have known at the time, Arthur was born in the U.S. and his parents, as of 1881, would have been known to be U.S. citizens. There's no evidence that Waite knew the status of Arthur's father when he was born, and at the time, the question was only over his place of birth, not his father's status."
ReplyDeleteThis is not correct. The person who challenged Chester A. Arthur's legitimacy wrote a letter to a then senator asking this very question and the senator responded. The responding letter was published in the challenger's book. So to argue that the citizenship status of Arthur's father was not known is contrary to the facts.
Mario Apuzzo, Esq...
ReplyDeleteI apologize if I give the impression that I'm not aware of your extensive understanding of this subject from all of the various "perspectives".
What I do NOT understand is why there is not a general outrage among the "U.S. natural born Citizen population" that their Constitutionally "REQUIRED" acknowledgement of their "Constitutionally REQUIRED" Civil Right of being a U.S. natural born Citizen is "denied and disparaged".
The 10th USCA said I, or anyone else, did not have a Right to be POTUS, but that is NOT the Right I was seeking to be acknowledged.
My response, when and if I have the opportunity in the proper forum would be to declare that IF I were the last U.S. natural born Citizen available then I would be the ONLY person with the Right to be POTUS under the LAW of the Constitution.
You said;
" ...In all my cases, I argued the “Civil Rights perspective....”
....but you cases began and ended turning on the Political Question of the eligibility of a specific person.
Of course a U.S. natural born Citizen was attached with specific 'transient political aspects' by virtue of its usage for 'political purposes' within the Constitution.
But in order for that 'creature' to be imbued with ANY additional qualities it MUST 1st exist.
What troubles me is that so many "RESORT ELSEWHERE" rather than START where the NEW LAWS for a NEW NATION begin and limit the inquiry there, and not otherwise...
I am a U.S natural born Citizen and my Constitutional RIGHT, PRIVILEGE and IMMUNITY's are being denied and disparaged by the lack of a uniformly acknowledged legal", (enforceable), definition of requisite circumstances that would identify those in conformity with the requirement of the Article II provision.
The Question is a matter of Citizenship in the 1st instant with the matter of the Political Question made moot with the answer known of the former.
I screwed up with my last attempt failing to make a 'statement of jurisdiction' under FR 8 (?) ...and in writing a 15 pg 'complaint' largely in a narrative style .... still the bugle calls 'to arms, to arms..."
Mario Apuzzo Esq said:
ReplyDelete"In Minor he agreed with Justice Waite’s statement that at common law, any child who was not born in the country to citizen parents was an alien or foreigner. So even if what you say about Justice Swayne in Rhodes is correct, the U.S. Supreme Court decision in Minor trumps the lower court decision in Rhodes. "
We now have to deal with the STUPID notion that Minor v. Happersett said anything on the meaning of Natural Born Citizen.
The ruling was of course, describing the citizenship status of Virgina Minor and pointing out that she was for sure a US citizen and that in fact she had every POSSIBLE way of being a US citizen. She was born in the USA and her parents were citizens. Those are the two criteria that nations use to determine citizenship--jus soli and jus sanguinus.
Moreover, the court pointed out that Virginia Minor, because she had the two criteria involved in Natural Born status was also, without a doubt, a Natural Born Citizen. There could be no doubt about it, she was a Natural Born Citizen.
But there is nothing in the ruling that says that having both criteria are REQUIRED. There is nothing in the ruling that says that having both criteria are necessary. It merely says that having both criteria without any doubt makes a Natural Born US Citizen.
Well, wearing both suspenders and a belt will--without any doubt--hold your pants up. But wearing both of them at the same times is not necessary to hold your pants up.
And THAT is all that the Minor v. Happersett ruling said about Natural Born Status. It said that having both criteria was unquestionably (and of course logically) proof that someone is a Natural Born Citizen. But it NEVER said that both were REQUIRED.
No ruling ever has, but the Wong Kim Ark ruling says that the meaning of NBC comes from the common law and that every child born in the USA is a NBC except for the children of foreign diplomats.
Re: "even if Justice Swayne in Rhodes is correct."
His HISTORICAL RESEARCH is what I was referring to. He did not rule, he believed based on the historical records available to him that every child born in the USA is a citizen by birth regardless of the citizenship of their parents. You claim, based on your research--of which you have shown very little--that the laws of the time required the US-born children of foreigners to be naturalized in order to become citizens.
BUT you have not shown any such laws, and Justice Swayne, who surely had access to the laws at the time and earlier, does not agree with you.
Richard Allen said...
ReplyDeleteMario said... "Besides, as far as anyone would have known at the time, Arthur was born in the U.S. and his parents, as of 1881, would have been known to be U.S. citizens. There's no evidence that Waite knew the status of Arthur's father when he was born, and at the time, the question was only over his place of birth, not his father's status."
"This is not correct. The person who challenged Chester A. Arthur's legitimacy wrote a letter to a then senator asking this very question and the senator responded. The responding letter was published in the challenger's book. So to argue that the citizenship status of Arthur's father was not known is contrary to the facts."
Who was the challenger?
When was the challenge?
Who was the senator?
What was the senator's response?
What was his book titled?
Just to play along and engage in the topic of the WKA "opinion" I'm curious as to the element of the 14th Amendment's purpose to provide 'citizenship' to those that were theretofore in the condition of "Statelessness".
ReplyDeleteIf indeed it was THAT condition that was being cured by the "collective naturalization declaratory born provision" then should it not ONLY apply to a person who might be "born" in a Stateless condition but for the provision....?
Richard Allen,
ReplyDeleteI of II
In reference to Chester A. Arthur, you said: “This is not correct. The person who challenged Chester A. Arthur's legitimacy wrote a letter to a then senator asking this very question and the senator responded. The responding letter was published in the challenger's book. So to argue that the citizenship status of Arthur's father was not known is contrary to the facts.”
Here is a short chronology of the events:
It is currently reported that Chester A. Arthur was born in Fairfield, Vermont on October 5, 1829. Attorney Arthur P. Hinman, hired by the Democrats, had argued that he was born in Ireland. After speaking to witnesses, he maintained he was born in Dunham, Lower Canada (in present day Quebec) on either the 16th or 18th of March 1828 (it had been reported that Arthur’s grandfather said that if he had been born on the 17th he would have insisted on calling him S. Patrick, “as he was a half Irish baby”-see Inman’s below cited book at page 9) and therefore not eligible to be Vice President.
New York attorney, Arthur P. Hinman wrote the letter to U.S. Senator T.B. Bayard in January 7, 1881.
By letter dated January 10, 1881, Senator Bayard responded to him.
There was no law suit filed by anyone challenging Arthur’s eligibility to be Vice-President on the ground that he was not a “natural born Citizen.”
Arthur served as Vice President from March 4, 1881 to September 19, 1881.
When President Garfield was assassinated, Arthur become President, serving from September 19, 1881 to March 4, 1885.
Chief Justice Morrison R. Waite sworn Arthur in as President on September 22, 1881.
Hinman published his book, How a British Subject Became President of the United States, in 1884 before the Republican National Convention.
In his letter to Senator Bayard, Hinman asked him what was the “construction” of the “natural born Citizen” clause in Article II, Section 1, Clause 5. The Senator’s reply was published in Hinman’s 1884 book: How a British Subject Became President of the United States. Here is the letter exchange:
New York, January 7th, 1881.
Hon. THOS. F. BAYARD, U. S. Senator.
DEAR SIR:--What is the construction of Article II., Sec. I,
Clause 5, of the Constitution of the United States--that
“ No person, except a natural-born citizen, etc., shall be
eligible, etc." ***
Yours respectfully,
A. P. HINMAN
**********************************
Senate of the United States.
City of Washington, January 10th, 1881
A. P. HINMAN, Esq., New York.
DEAR SIR :--In response to your letter of the 7th instant-
the term” natural-born citizen,” as used in the Constitution
and Statutes of the U. S., is held to be a native of
the U. S.
The naturalization by law of a father before his child
attains the age of twenty-one, would be naturalization of
such minor.
Yours respectfully,
T. F. BAYARD (emphasis in the original)”
A.P. Hinman, How a British Subject Became President of the United States 89 (1884).
**********************************
Continued . . .
Continued . . .
ReplyDeleteII of II
In responding to the construction of the “natural born Citizen” clause, the Senator first stated that the child had to be a “native of the U.S.” He then also included in his answer the citizenship status of the child’s father. He explained the then-existing naturalization law that applied to minors which would have been the Naturalization Act of 1855 (which on the specific topic carried forward the same law as stated in the Naturalization Acts of 1790, 1795, 1802, and 1855). In his explanation, Senator Bayard did not mention whether the son was born in the United States or abroad. This shows that place of birth of the child was not relevant, for whether the child was born in the United States or abroad, the result would be the same. If the father was not born in the United States and not a U.S. citizen at the time of his child’s birth, the son, whether born in the United States or abroad, was also born a non-U.S. citizen and remained an alien until the father naturalized which by derivative right also made his child a U.S. citizen but only if the father so naturalized before the child turned 21 years old and if the child was then dwelling in the United States. We know that under naturalization laws, after turning the age of majority, the child had to naturalize in his or her own rights and not derivatively through his or her father. Since Senator Bayard had prefaced his answer with the need that a child needed to be “a native of the U.S.,” we can concluded that the Senator was telling Hinman that a child born to an alien father who became a U.S. citizen only upon his father’s naturalization or on his own if done after his or her majority was a naturalized citizen and not a “native of the U.S.” That child was therefore not a “natural born Citizen” under Article II. In short, any child who was born in the United States to an alien father would need naturalization and could be a naturalized citizen but not a “natural born Citizen.” That all explains why the title of Inman’s book is, How a British Subject Became President of the United States.
If according to Bayard a president had to be a “native of the U.S.” and if as Obama eligibility supporters maintain the naturalization act only applied to children born out of the United States, there would have been no reason for Bayard to include a discussion of the naturalization statue when defining a “natural born Citizen,” for the element of birth out of the country, necessary to make the statute applicable, would have been missing, making the statute irrelevant and discussing the statue not necessary. This shows that the understanding was that a child born in the United States to alien parents was alien born and only became a citizen upon the naturalization of the parents. I have been arguing this very point with respect to the Naturalization Acts of 1790, 1795, 1802, and 1855. This is additional evidence that my argument that the acts also applied to children born in the United States and not only to those born out of it is correct.
You maintain that the citizenship status of Arthur’s father “was . . . known.” You fail to tell us who knew it, when did they know it, and how did they come to know it. Other than the reference in Hinman’s letter, Bayard’s response, and Hinman’s book, please provide any evidence that the public knew of and when they knew that circumstance. Era newspapers and other publications would be appreciated.
Re: "If according to Bayard a president had to be a “native of the U.S.” and if as Obama eligibility supporters maintain the naturalization act only applied to children born out of the United States, there would have been no reason for Bayard to include a discussion of the naturalization statue when defining a “natural born Citizen,” for the element of birth out of the country, necessary to make the statute applicable, would have been missing, making the statute irrelevant and discussing the statue not necessary. "
ReplyDeleteYou still have not shown any laws from any state or the USA saying that a child born in that state or in the USA was not a citizen at birth.
And, according to this letter to the New York Times in 1854, William L. Marcy, the secretary of state of the United States at the time (to President Franklin Pearce) said that he was under the impression that every child born in the United States "must be considered a citizen, notwithstanding that one or both of his parents be alien at the time of his birth."
http://query.nytimes.com/mem/archive-free/pdf?res=F40C13FD3E59157493C2AB1788D85F408584F9
or, if that does not work directly, try this:
http://select.nytimes.com/gst/abstract.html?res=F40C13FD3E59157493C2AB1788D85F408584F9
I feel like I am getting dizzy going in circles. And I apologize for contributing to the never-ending-spiral.
ReplyDeleteBut if everybody else gets to go around, perhaps I may be excused -- for pointing out yet again:
The NBC clause was intended to be maximally restrictive - otherwise why bother? Why would the framers have settled on a lukewarm half-baked solution when a strong whole solution was available.
Doesn't that sort of trump everything else? Period. Done. End of discussion. Finis!
PS:
ReplyDeleteIf that is what the framers intended, and it has never been specifically addressed in any official way, let alone changed, why are we debating this?
Re: "The NBC clause was intended to be maximally restrictive - otherwise why bother? Why would the framers have settled on a lukewarm half-baked solution when a strong whole solution was available."
ReplyDeleteBut it was not designed to be "maximally restrictive." It was only designed to bar foreigners and naturalized US citizens from becoming president. That is why they used the term Natural Born Citizen, of which the Natural Born part was from the common law and referred to the place of birth.
If they had wanted to bar the US-born children of foreigners from being eligible, they would have said so.
smrstrauss said...
ReplyDeleteRe: "The NBC clause was intended to be maximally restrictive - otherwise why bother? Why would the framers have settled on a lukewarm half-baked solution when a strong whole solution was available."
"But it was not designed to be "maximally restrictive." It was only designed to bar foreigners and naturalized US citizens from becoming president. That is why they used the term Natural Born Citizen, of which the Natural Born part was from the common law and referred to the place of birth.
If they had wanted to bar the US-born children of foreigners from being eligible, they would have said so."
If they wanted to include those who were only native-born, they would have said "native born Citizen".
The 17th century English common law REQUIRED the father to be a "subject", for his child to be a natural born subject.
If the father was not a "subject", then a native-born child would not be a subject and would be alien-born, because the child would not be born "under the ligeance of a subject".
The Framers were very aware of this, as well as being very strongly influenced by the writings of Putendorf and Vattel, so it follows that for a native-born child in US to be a "natural born Citizen", then the child would have to be born "under the ligeance of a" CITIZEN.
Lord Coke - Calvin's case...
ReplyDelete"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..."
Lord Coke - Calvin's case...
ReplyDelete"Non respondetur ad hanc quaestionem, ubi est? to say, Verus et fidelis subditus est; sed ad hanc quaestionem, qualis est? Recte et apte respondetur, verus et fidelis ligeus, &c. est."66
Translated:[
66. ][Ed.: It is not an answer to the question ‘Where is he?’ to say that he is a true and faithful subject.
However, the question ‘What kind of person is he?’ is rightly and aptly answered by saying that he is a true and faithful liege.]
Lord Coke - Calvin's case...
ReplyDelete"[151. ][Ed.: An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]"
AGAIN the 17th century English common law held that native-birth is not sufficient to make a natural born subject and in fact a child could be native-born, but yet an alien-born.
It is CLEAR that the words in the 17th century English NBS phrase, i.e. "natural born", relate SOLELY to the status of the parents and have NOTHING to do with place.
Not convinced?
ReplyDeleteThen try this.
Lord Coke - Calvin's case...
"any place within the king’s dominions without obedience can NEVER produce a natural subject."
"...This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometime it is called the obedience"
Smrstrauss @ January 24, 2013 at 10:39 AM,
ReplyDeleteI of II
You continue to misrepresent what the Fourteenth Amendment says and what Minor v. Happersett (1875) and U.S. v. Wong Kim Ark (1898) held.
Article II, Section 1, Clause 5 expressly mentions both “natural born Citizen” and “Citizen of the United States,” and treats each clause differently. Hence, there is no doubt that the two clauses have different meanings.
When Congress wanted to use the clause “natural born citizen,” it knew how to do so. It did so in the Naturalization Act of 1790 with respect to children born out of the United States to citizen parents, for such children under the common law were aliens and foreigners. It did not do the same with respect to children born in the United States because there was no doubt as to who was a “natural born Citizen” among them. That Congress knew there was a difference between a “natural born citizen” and a “citizen of the United States” is evidenced by the Naturalization Act of 1795, which repealed the 1790 Act and took its clause “natural born citizen” that applied to children born out of the United States and replaced it with “citizen of the United States.” Congress never again used the clause “natural born citizen.” Congress passed the Civil Rights Act of 1866 in which it continued to use “citizen of the United States.” Congress replaced that Act with the Fourteenth Amendment, which also used “citizen of the United States.”
The unanimous U.S. Supreme Court in Minor, which included Justice Swayne from the Rhodes “citizen” (not “natural born Citizen”) decision, which means that he agreed with the Court, explicitly confirmed the long-standing American common law definition of a “natural-born citizen.” The Court said that the meaning of a “natural-born citizen” is not found in the Constitution, which then included the Fourteenth Amendment. It said that its meaning may be found in the common law with which the Framers were familiar when they drafted the Constitution. It then said that a child born in a country to parents who were its citizens at the time of the child’s birth was not only a citizen like the child’s parents, but also a “natural-born citizen.” The Court did not say that any other definition of the clause existed. Since the Court gave a definition, it would not have also expressly said that the elements of the definition were required. It simply would not have made any sense for the Court to make such a statement, for it goes without saying that with definitions, their material elements must be satisfied for the defined concept to exist. Since Virginia Minor met the requirements of being a “natural-born citizen, i.e., birth in the country to citizen parents, the Court did not have to construe the Fourteenth Amendment and answer the question of whether children born in the United States to alien parents were “citizens of the United States” under that amendment.
Continued . . .
II of II
ReplyDeleteIn the case of Wong Kim Ark, Wong had to be at least a “citizen of the United States” in order to avoid deportation. Since he was born in the United States, but not to U.S. citizen parents, he could not meet Minor’s definition of a “natural-born citizen” which would also have made him a citizen. But he also could not meet the requirements of any Congressional Act to so as to be declared a “citizen of the United States.” Hence, the only path to citizenship for him was through the new Fourteenth Amendment which did not call for citizen parents. So, the lower court in Wong Kim Ark was explicitly asked to determine if Wong was a “citizen of the United States” under the Fourteenth Amendment, which as I have explained neither mentions nor defines a “natural born Citizen.” It said that he was, never mentioning in any way that he was a “natural-born citizen.” The U.S. Government appealed to the U.S. Supreme Court which presented the question for decision as whether Wong was a “citizen of the United States” under the Fourteenth Amendment. The Court first cited and quoted Minor approvingly for its definition of a “natural-born citizen” and for its statement that the definition of a “natural-born citizen” does not exist in the Constitution, but rather in the common law with which the Framers were familiar. Then the Court held that since Wong, by virtue of being born in the United States was just as much a citizen as the “natural born citizen” child of citizen parents, he was a “citizen of the United States” under the Fourteenth Amendment. It did not hold that he was an Article II “natural born Citizen.”
So, why do you persist in saying that Minor did not define a “natural-born citizen” when it clearly did and did so under the common law and not the Fourteenth Amendment, that the Fourteenth Amendment defines a “natural-born citizen” when it does not and both Minor and Wong Kim Ark confirmed that, and that Wong Kim Ark defined a “natural-born citizen” when it clearly did not, but only defined a “citizen of the United States” under the Fourteenth Amendment? The degree of misstatement, distortion, deceit, and manipulation in your argument is shocking and easily perceived.
Mario,
ReplyDeleteI think the key to understanding how the law conferred citizenship to the children of non-citizens is to look at the newly emancipated slaves. Most at that time were born in slavery in the United States, so the question to ask is how did they get their citizenship once freed? We know that Dred Scott was born in Virginia after the Constitution was ratified but the courts did not consider him a citizen.
To answer my own question it was the Civil Rights act of 1866, which by a congressional act conferred citizenship on all persons born in the United States except Indians, not taxed, regardless of race or previous condition of servitude. Congress could do this only through the enumerated power congress holds and one power being citizenship is naturalization, so in fact they were naturalized.
It is well known that only reason the 14th amendment was enacted was to prevent a future congress from rescinding the CRA of 1866. This is why those who were naturalized were included in the amendment. Even though the vast majority of slaves freed were born in the United States, they needed to be naturalized in mass via the CRA of 1866.
One key phrase in the CRA of 1866 is not subject to a foreign power. This means that Congress felt that they did not have the right to extend citizenship to those whose parents were aliens. In WKA Justice Gray excludes the debates of the Framers of the Amendment and instead relies on a abridged version of ECL notably the Calvin Case to show that permanent residency and domicile placed a person under the jurisdiction, not simple birth. Calvin’s claim rested not on place of birth but on his natural allegiance to the King and that allegiance was perpetual to the king even when acting in the capacity of the king of England. What most people fail to grasp is that in 1603 Scotland and England were not united except via the monarch. They existed as two separate countries until 1707 when the Act of Union made them one. It was always allegiance to the monarch that made one a subject, not place of birth.
This is why Justice Grey contorts ECL to come up with domicile and residence as the key factors for WKA’a citizenship, something Mr Strauss seems to omit. His omission is not unintentional as he knows BHO Sr. never had permanent residency or domicile in the United States. Therefore the WKA decision has no relevance or bearing on his children born here.
The other aspect of the 14th Amendment Mr Strauss fails to address is why does it bestow upon a person the general class of citizenship called Citizen of the United States? Perhaps the reason is found in the debates on the Amendment. Much debate was given to the children of aliens, so could the answer be the framers installed a failsafe. Anyone whose claim of a constitutional citizenship which was not that of a natural born citizen, would be a citizen of the United States and not eligible for the presidency. Was this a failsafe introduced by the framers to prevent a future misuse of the amendment?
Smrstrauss @ January 24, 2013 at 1:28 PM,
ReplyDeleteI of II
You are quite a character. I have provided so much historical and legal sources to support my position, but yet you say I have provided none. On the other hand, you have provided virtually nothing to support your position, but yet you say that you have provided more than is necessary to demonstrate that you are correct.
The plain language of the naturalization acts is more than enough to show that I am correct and you are wrong. 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.”
The operative language is “the children of such person, shall be considered as a citizen of the United States.” So, either a child fell into such a parameter or not, all depending on the citizenship of the parents and nothing more. There is nothing stated in that language that the child had to be born either in or out of the United States. Rather, the language is broad and focuses only upon whether the parents were citizens or not. It just did not matter where the child was born. If his or her parents were aliens at the time of the child’s birth, the child was alien born. That alien born child could become a “citizen of the United States” upon the naturalization of the parents if done during the child’s minority and while the child was dwelling in the United States.
When Congress wanted to express that the place of the child’s birth mattered in some critical way, it knew how to and it in fact did right in the act itself. This same act also provided:
“And the children of citizens of the United States that may be born beyond sea, or out of the limits of the United States, shall be considered as natural born citizens.”
Here we see that Congress knew how to tell us when it was referring to children born out of the United States. Here it expressly said “children . . . that may be born beyond sea.” With this language, Congress expressed the rule that as long as children were born to citizen parents, such children would be “considered as natural born citizens,” even if not born in the United States. By Congress saying that it only “considered” children born out of the United States to citizen parents (only with citizen parents) “as natural born citizens,” we know that it had to consider a child born in the United States to citizen parents (place of birth and citizen parents) as the true “natural born citizen,” for there was no other child with any other birth circumstances who could have that birth status. If Congress meant to also consider children born in the United States to alien parents (only place of birth) as either “citizens of the United States” or “natural born citizens,” it would have told us like it did with children born out of the United States to U.S. citizen parents.
So, the basic principle that Congress followed in its naturalization acts was that a child followed the citizenship of his or her parents. This was known as partus sequitur patrem. If the parents were citizens at the time of the child’s birth, so was the child, even if born out of the United States. But if the parents were aliens, the child was alien born, even if born in the United States.
Continued . . .
II of II
ReplyDeleteRegarding Secretary of State, William L Marcy, he only stated that it was his “impression” that a child born in the United States to one or two alien parents “must be considered a citizen.” First, stating that something is his impression is a very weak way of making a case for anything. Rather, he did not speak with strength of conviction, supported by any legal source. Second, that he feels someone “must be considered” a citizen does not make it so. Again he cites no authority as support for his command. The law is what it is, not what it ought to be. Third, he only said such a child was a “citizen.” He did not say such a child was a “natural born citizen.” So while Senator Bayard told us who is not even a citizen (which necessarily rules that person out from being a “natural born citizen”), the best that Secretary of State Marcy told us is who he considered to be a citizen, which does not necessarily rule that person in as a “natural born citizen.” Fourth, the reasoning of the unanimous U.S. Supreme Court in Minor supports Bayard’s position and does not support Marcy’s position.
Teo Bear,
ReplyDeleteI have always maintained that both the Civil Rights Act of 1866 and the Fourteenth Amendment, by accepting any child born in the United States to one or two alien parents as a “citizen of the United States” in effect naturalize that child at birth by removing any and all alienage from the child with which he or she was born. Naturalization at birth had been done by Lord Coke in Calvin’s Case (1608). In that case, Lord Coke, by the power of the judiciary and not the power of Parliament which had refused for political reasons to naturalize the postnati of Scotland as English “natural born subjects,” naturalized Calvin, who was born in Scotland to parents who were aliens in England (antenati), at birth based on jus soli subjectship. Vattel, in Section 214 of the The Law of Nations recognized this concepts 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.” U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) and Rogers v. Bellei, 401 U.S. 815(1971) also both recognized naturalization at birth.
One proof that I am correct is that Congress, in both the Civil Rights Act and in the Fourteenth Amendment, did not call such child a “natural born citizen,” but rather a “citizen of the United States,” which is the same clause that the Founders and Framers used in Article II, Section 1, Clause 5 to denote any citizen who was not a “natural born Citizen” and therefore “naturalIZED born” or “naturalIZED after born.” With the Act, it could not because to do so would have taken Congress beyond its naturalization powers. But it also did not do so in the Fourteenth Amendment, which it easily could have given that it was a constitutional amendment that it was passing. Another proof is that in the Fourteenth Amendment itself, Congress called those children born in the United States and “subject to the jurisdiction thereof (i.e., not born to citizen parents), and those persons naturalized in the United States and “subject to the jurisdiction thereof” the same thing, i.e., “citizens of the United States.” Congress did not separate the U.S.-born children from the persons who became U.S. citizens by naturalization after birth and call them something else like “natural born citizen.” Rather, Congress called both these classes of persons the same thing, a “citizen of the United States.”
So, in effect, I agree with you about these Fourteenth Amendment non-“natural born citizens” being naturalized at birth and called “citizens of the United States.” I also agree with you that by Congress using the clause “citizen of the United States” rather than “natural born citizen” in the Fourteenth Amendment, it made sure that someone who was not born in the United States to citizen parents was not eligible to be President.
Smrstrauss @January 24, 2013 at 5:00 PM,
ReplyDeleteYou said: The “natural born Citizen” clause “was only designed to bar foreigners and naturalized US citizens from becoming president.”
By using the term of art, idiom, unitary clause, “natural born Citizen,” the Founders and Framers said it all in just three words as to whom they prohibited from becoming President and Commander in Chief of the Military.
A “natural born Citizen” is not a U.S.-born child of a foreigner. To argue that the Framers would have allowed in the future a child born to a foreigner to be President is rewriting our history. Indeed, David Ramsay, St. George Tucker, Congress in the Naturalization Acts of 1790, 1795, 1802, and 1855, the James Madison Administration in the James McClure 1811 citizenship case, and the unanimous U.S. Supreme Court in Minor v. Happersett (1875), to name a few, explained that children born in the United States to alien parents were “aliens” and “foreigners.” Once their parents naturalized, those children became “naturalized US citizens.” So, under your own parameters, children born in the United States to alien parents were barred from becoming president.
Re: "A “natural born Citizen” is not a U.S.-born child of a foreigner."
ReplyDeleteAnswer. Actually, it is:
“Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad.” — Black’s Law Dictionary, Sixth Edition
“What is a natural born citizen? Clearly, someone born within the United States or one of its territories is a natural born citizen.” (Senate Judiciary Committee hearing on OCTOBER 5, 2004)--Senator Orrin G. Hatch (R-UT).
"Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. ...St. George Tucker, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
(As you can see, that refers only to the PLACE of birth; Natural Born Citizens were simply "those born within the state.")
"Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."---William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
(That says that the meaning comes from the common law and refers to the place of birth and that every child born in the USA except for the children of foreign diplomats is a Natural Born US Citizen."
"The opposing case rests on a willfully idiosyncratic reading of an 1875 Supreme Court case called Minor v Happersett. In that ruling, the Court wrote, "...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 distinct from aliens of 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 those doubts." In other words, Minor did not settle the question of who was and was not a natural-born citizen, as the plaintiffs claim it did, it deliberately left the question open (as does the constitution, which does not define the term). The Supreme Court has held and lower courts affirmed that natural-born citizen refers to anyone born in the United States."--The Economist Magazine.
Continuing:
ReplyDelete"Some birthers imagine that there is a difference between being a “citizen by birth” or a “native citizen” on the one hand and a “natural born” citizen on the other. “Eccentric” is too kind a word for this notion, which is either daft or dishonest. All three terms are identical in meaning."---The Wall Street Journal.
And, you might ask yourself, if it were well known or even suspected that the term Natural Born Citizen requires two US citizen parents, why (1) not one single member of the US Electoral College changed her or his vote from Obama to McCain or to a third-party candidate in 2008 out of the notion that Obama was born in a foreign country or that it requires two citizen parents to be a Natural Born Citizen. Not one in the 356 electoral votes that Obama won in 2008. And again in 2012, not one single elector changed her or his vote from Obama to Romney or to a third party candidate. Not one in the 332 electoral votes that Obama won in the 2012 election." And not one single member of congress, in the 435 in the House and 100 in the Senate has said anything about Obama not being a Natural Born US Citizen. Not one.
More cases:
Mustata v. US Dept. of Justice, 179 F.3d 1017 (6th Cir. 1999) (children born in US to two Romanian citizens described as “natural born citizens” of the US):
“Petitioners Marian and Lenuta Mustata are citizens of Romania. At the time of their petition, they resided in Michigan with their two minor children, who are natural born citizens of the United States.”
Diaz-Salazar v. INS, 700 F.2d 1156 (7th Cir. 1983) (child born in US to Mexican citizen is “natural born citizen” of US):
“Petitioner, Sebastian Diaz-Salazar, entered the United States illegally [from Mexico] in 1974 and has been living and working in Chicago since that time.....The relevant facts which have been placed before the INS, BIA, and this court can be summarized as follows: The petitioner has a wife and two children under the age of three in Chicago; the children are natural-born citizens of the United States.”
Nwankpa v. Kissinger, 376 F. Supp. 122 (M.D. Ala. 1974) (child born in US to two Biafra citizens described as “natural born citizen” of the US):
“The Plaintiff was a native of Biafra, now a part of the Republic of Nigeria. His wife and two older children are also natives of that country, but his third child, a daughter, is a natural-born citizen of the United States.”
Re your statement: "...the unanimous U.S. Supreme Court in Minor v. Happersett (1875)."
Answer: Even Minor v. Happersett (which was before the Wong Kim Ark case, btw, and hence would be overturned by the later ruling) did not rule that two citizen parents are REQUIRED.
It simply said that Virgina Minor, who was both born in the USA and had US citizen parents was without doubt a Natural Born US Citizen. It did not say that just being born in the USA was not sufficient or just having US citizen parents was not sufficient. It was a lot like saying: "It was never doubted that if you wore both suspenders and a belt, you could hold your pants up." That statement is true. Indeed, it was never doubted that if you wore both suspenders and a belt, you will hold your pants up. But wearing both are not REQUIRED.
We continue to hew, whittle, bend, and pound these square sticks to force them into the round hole.
ReplyDeleteAll the while there is a perfectly matched round stick just laying there.
Isn't that kind of infantile?
Do none of you square stickers release how easy it is for foreign agents to penetrate? And how hard it is to weed them out? The is a very VERY serious issue and of extreme national importance.
And yet some of you want to try to make some sort of silly semantic game of this.
Doesn't it bother you that The Obama has done NOTHING to demonstrate that he is a true blue American?
And before any of you try to trot out the "innocent until proven guilty" cannard -- that does not apply here. As once having been heavily involved in the national security clearance business, I can assure you that ALL individuals seeking clearance are considered tainted until cleared.
Why would anyone want to shoot themselves in the back and/or jeopardize national security in this manner.
If the Obama disciples are so sure their messiah is legitimate, why aren't they embracing a thorough investigation - if for no other reason, to shut up us worriers!
Smrstaruss @ January 25, 2013 at 12:11 PM and 12:15 PM,
ReplyDeleteI have provided numerous historical and legal sources, reason, and logic which support my position that an Article II “natural born Citizen” does not include a child born in the United States to a parent who is an alien or foreigner.
You provide in support of your position Black’s Law Dictionary, Sixth edition; Senator Hatch in 2004; the alleged quote from St. George Tucker which as I have explained to you and your group numerous times is not his quote; William Rawle who I have already addressed and showed was all alone and with no sources to support his position; the Wong Kim Ark “same rule” quote which as I have already explained defined an English “natural born subject,” not an Article II “natural born citizen,” and only aided the Court in holding that a child born in the United States and "subject to the jurisdiction thereof" was a Fourteenth Amendment "citizen of the United States" (not to be conflated with an Article II "natural born Citizen"); modern day Economist Magazine and The Wall Street Journal political commentary involving a current election which is not material from any legal publication or journal of any sort nor commentary published near the time the Constitution was adopted; the Electoral College whose job today is to vote according to the command of their party; and the cases of Mustata, Diaz-Salazar, and Nwankpa, none of which involved the constitutional issue of what is an Article II “natural born Citizen and only referred to a “natural born citizen” in the recital of its facts, but not as part of any legal analysis.
You repeat your same argument about Minor allegedly not requiring that one be born in the country to citizen parents in order to be a “natural-born citizen.” I have already explained to you that once the Court gave or confirmed a definition of the clause, it is foolish to expect that the Court would then have added that one had to satisfy that definition or else one could not be a “natural-born citizen.” The requirement to meet the material elements of the definition is automatically implied and expected once the rule was proclaimed or confirmed.
So, you have provided no historical sources, case law, reason, and logic which support your position that a “natural-born citizen” includes a U.S.-born child of a foreigner.
Re: "he Court gave or confirmed a definition of the clause, it is foolish to expect that the Court would then have added that one had to satisfy that definition or else one could not be a “natural-born citizen."
ReplyDeleteAnswer: The statement "... it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. "
Is no more a definition than: "... it was never doubted that all persons who wear both suspenders and a belt will hold their pants up."
It is not a definition.
The Wong Kim Ark ruling is a definition. It is the rule, accepted by ALL the courts so far (not one having said that Minor v. Happersett is a definition or that it applies.)
Re Historical sources:
"Prior to the adoption of the constitution, the people inhabiting the different states might be divided into two classes: natural born citizens, or those born within the state, and aliens, or such as were born out of it. The first, by their birth-right, became entitled to all the privileges of citizens; the second, were entitled to none, but such as were held out and given by the laws of the respective states prior to their emigration. ...St. George Tucker, BLACKSTONE'S COMMENTARIES: WITH NOTES OF REFERENCE TO THE CONSTITUTION AND LAWS OF THE FEDERAL GOVERNMENT OF THE UNITED STATES AND THE COMMONWEALTH OF VIRGINIA. (1803)
"Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity."---William Rawle, A VIEW OF THE CONSTITUTION OF THE UNITED STATES OF AMERICA. 2d ed. (1829)
Those are historical sources, as was the letter of Secretary of State William H. Marcy to the New York Times in 1852.
You can keep on saying what you think, but the courts do not accept your viewpoint. THEY get to rule, not you. The US Electoral College gets to rule, not you. The US Supreme Court gets to rule, not you---and it has turned down every single birther case, and it is not likely to accept one that appeals one of the NINE (or is it ten now) rulings, all of which have held that the meaning of NBC was defined by Wong Kim Ark and not by Minor v. Happersett.
Unless and until the US Supreme Court takes a case, and as I said, it is not likely to, the meaning of Natural Born Citizen is the same as what the lower courts and the US Electoral College both agree---that the citizenship of Obama's father (or for that matter BOTH the parents of Rubio and Jindal) have absolutely nothing to do with their Natural Born Citizen status.
AND, if the writers of the US Constitution really had meant to use a meaning of Natural Born that came from something other than the most common of meanings, the one that they were familiar with from the common law, THEY WOULD HAVE TOLD US.
smrstrauss said.....
ReplyDelete"Re your statement: "...the unanimous U.S. Supreme Court in Minor v. Happersett (1875)."
Answer: "Even Minor v. Happersett (which was before the Wong Kim Ark case, btw, and hence would be overturned by the later ruling) did not rule that two citizen parents are REQUIRED.
It simply said that Virgina Minor, who was both born in the USA and had US citizen parents was without doubt a Natural Born US Citizen. It did not say that just being born in the USA was not sufficient or just having US citizen parents was not sufficient. It was a lot like saying: "It was never doubted that if you wore both suspenders and a belt, you could hold your pants up." That statement is true. Indeed, it was never doubted that if you wore both suspenders and a belt, you will hold your pants up. But wearing both are not REQUIRED."
@ smrstrauss.
Then it should be easy for you to explain this part (in bold-face)..
"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
Page 88 U. S. 168
parents. As to this class there have been doubts, but never as to the first.
What's more the 14th Amendment is a part of the USC, but the SCOTUS said "The Constitution does not in words say who shall be natural-born citizens."
What "common law" do you suppose was the SCOTUS in Minor referring to which held no doubts that native-birth to US citizens parents made a NBC, yet held doubts that native-born to alien parents might make even a citizen at all?
You say that the common law held that native-birth was all that was needed to make a natural born subject/citizen, but the SCOTUS says you are wrong.
Can you explain this?
smrstrauss said ....
ReplyDelete"AND, if the writers of the US Constitution really had meant to use a meaning of Natural Born that came from something other than the most common of meanings, the one that they were familiar with from the common law, THEY WOULD HAVE TOLD US."
I have already given you the 'common meaning' which you say was where the Framers got the NBC from, but you seem to have over-looked it.
Here read this and explain.
If the Framers wanted to include those who were only native-born, they would have said "native born Citizen".
The 17th century English common law REQUIRED the father to be a "subject", for his child to be a natural born subject.
If the father was not a "subject", then a native-born child would not be a subject and would be alien-born, because the child would not be born "under the ligeance of a subject".
The Framers were very aware of this, as well as being very strongly influenced by the writings of Putendorf and Vattel, so it follows that for a native-born child in US to be a "natural born Citizen", then the child would have to be born "under the ligeance of a" CITIZEN.
Lord Coke - Calvin's case...
"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..."
Lord Coke - Calvin's case...
"Non respondetur ad hanc quaestionem, ubi est? to say, Verus et fidelis subditus est; sed ad hanc quaestionem, qualis est? Recte et apte respondetur, verus et fidelis ligeus, &c. est."66
Translated:
[66. ][Ed.: It is not an answer to the question ‘Where is he?’ to say that he is a true and faithful subject.
However, the question ‘What kind of person is he?’ is rightly and aptly answered by saying that he is a true and faithful liege.]
Lord Coke - Calvin's case...
"[151. ][Ed.: An alien born is of foreign birth or foreign allegiance, and is also called peregrinus (foreigner), alien, exotic, stranger, etc. A stranger is a subject who is born outside the land, that is, outside the king’s power.]"
AGAIN the 17th century English common law held that native-birth is not sufficient to make a natural born subject and in fact a child could be native-born, but yet an alien-born.
It is CLEAR that the words in the 17th century English NBS phrase, i.e. "natural born", relate SOLELY to the status of the parents and have NOTHING to do with place.
Lord Coke - Calvin's case...
"any place within the king’s dominions without obedience can NEVER produce a natural subject."
"...This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometime it is called the obedience"
There is NOTHING in the English common law which holds that native-birth alone is sufficient to make a natural born subject.
In 17th century England, a native-born child had to be "born under the ligeance of a subject" to be a natural born subject, and if not born to a subject father, then although native-born, the child would be an alien-born.
Re: ""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,,,"
ReplyDeleteAnswer: That simply says that it was never doubted that if you had both of the criteria to be a Natural Born Citizen, without doubt you were a Natural Born Citizen. It also says that some authorities in fact said that only birth in the USA was sufficient. And then it says, which you don't quote, that the court does not have to make a decision.
When the court says that it does not have to make a decision, it does not make a decision. It did not make a decision on the matter. And it never said that two citizen parents were required----only that if you had both two citizen parents and birth in the country your NBC status was certain.
Well, if you wear both suspenders and a belt, your holding up of your pants is certain too, but both are not required.
Re: "There is NOTHING in the English common law which holds that native-birth alone is sufficient to make a natural born subject."
Blackstone disagrees with you.
“The children of aliens, born here in England, are, generally speaking, natural-born subjects and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is alien.” http://www.lonang.com/exlibris/blackstone/
(And the minor exceptions referred to in “generally speaking” refers to the children of foreign diplomats.)
Re: "The 17th century English common law REQUIRED the father to be a "subject", for his child to be a natural born subject.
Blackstone disagrees with you, see above.
Re: "You say that the common law held that native-birth was all that was needed to make a natural born subject/citizen, but the SCOTUS says you are wrong."
No it didn't. And, if it did (which it didn't) the key ruling was the Wong Kim Ark case (which was after Minor v. Happersett), which clearly said that the meaning CAME FROM THE COMMON LAW, and that it referred to the place of birth and that every child born in the USA is Natural Born. Those are the words that it uses.
Re: 'If the Framers wanted to include those who were only native-born, they would have said "native born Citizen".
ReplyDeleteAnswer: Actually, they wouldn't have. The term "native-born" was not popular at the time. I do not know why, I can speculate that it implied that "native born" meant born of natives, meaning in the USA Indians.
In any case, "native born" was very seldom used. Natural Born was used all the time, and it was always used the way that Blackstone and Tucker and Rawle used it-----to refer to the place of birth, not to the parents.
SMStrauss,
ReplyDeleteNot only are you dishonest in your incomplete presentation of the facts, I will tell you to your virtual face you are a liar.
The Minor v Happersett case was not overturned, it was upheld in WKA by its inclusion by Justice Gray. Specifically Justice Waite's ruling on a NBC!!!!
A NBC pre-existed a 14th Amendment citizen, specifically a person with alien parents. WKA was found to be a "citizen of the United States" under the 14th amendment and not a NBC. Justice Gray specifically bases his ruling on the 14th amendment, if WKA was a NBC as you claim why the hockey-puck didn't he say so, like Justice Waite did for Minor.
Obviously you ran out of viagra and need something to amuse yourself with, but I for one don't find it funny that you amuse yourself by subverting the document that holds America together.
smrstrauss said...
ReplyDeleteRe: ""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,,,"
"Answer: That simply says that it was never doubted that if you had both of the criteria to be a Natural Born Citizen, without doubt you were a Natural Born Citizen. It also says that some authorities in fact said that only birth in the USA was sufficient. And then it says, which you don't quote, that the court does not have to make a decision."
@smrstrauss
Now you are STILL being dishonest.
I have bold-faced the pertinent part where your dishonesty shows.
i.e. "It also says that some authorities in fact said that only birth in the USA was sufficient".
Now I will correct what you dishonestly said...
"It also says that some authorities in fact said that only birth in the USA was sufficient to make a CITIZEN (not referring to NBC) and further it says that the court recognized and gave merit to doubts as to whether those "authorities" were correct in proposing that a native-born to alien parents was a CITIZEN (not referring to NBC) at all
Now getting back on the truth-track, let's see if you can be a little bit honest.
What "common law" was the SCOTUS in Minor, referring to which would have given the SCOTUS reason to doubt, and give merit to the doubt which held that native-birth to alien parents might not even produce a citizen at all?
What "common law" was that?
AND, what have you say about the English common law quotes from Calvin's case which I have provided showing WITHOUT A SHADOW OF ANY DOUBT that for a child to be an English natural born subject in 17th century England, the child MUST be born "under the ligeance of a subject" and if not, then the child would be alien-born, even though native-born?
If you think the 17th century ECL per Calvin's case says that native-birth alone sufficed to make an English NBS, can you point out where it says this?
smrstrauss said ...
ReplyDeleteRe: "There is NOTHING in the English common law which holds that native-birth alone is sufficient to make a natural born subject."
"Blackstone disagrees with you."
“The children of aliens, born here in England, are, generally speaking, natural-born subjects and entitled to all the privileges of such. In which the constitution of France differs from ours; for there, by their jus albinatus, if a child be born of foreign parents, it is alien.” http://www.lonang.com/exlibris/blackstone/
"(And the minor exceptions referred to in “generally speaking” refers to the children of foreign diplomats.)"
Re: "The 17th century English common law REQUIRED the father to be a "subject", for his child to be a natural born subject.
"Blackstone disagrees with you, see above."
Reply:
@smrstrauss
If Blackstone actually does disagree (that's only your opinion) with what I have said and quoted, then Blackstone disagrees with Lord Coke per Calvin's case.
I didn't make it up, it's not my opinion.
Coke actually held and ruled that a child native-born to a non-subject, equates to alien-birth of the child, and that child cannot (aka NEVER) be a natural born subject, because the child was not born under the ligeance of a subject.
Can you show me where in Calvin's case that Blackstone might be correct and Lord Coke is wrong?
Can YOU show where Lord Coke says ANYTHING that supports your absurd notion that the ECL held that native-birth alone sufficed to make a NBS?
This is all that smrstrauss has when smacked-down by the TRUTH.....
ReplyDelete"Blackstone disagrees with you."
@ smrstrauss,
Would you say that Lord Coke trumps Blackstone?
What about? .....
Lord Coke disagrees with Blackstone.
Would I be correct, in saying that?
Smrstrauss @ January 25, 2013 at 2:28 PM,
ReplyDeleteI of III
(1) You repeat your same argument about Minor allegedly not requiring that one be born in the country to citizen parents in order to be a “natural-born citizen.”
(a) First, you act as though Minor is the first U.S. Supreme Court decision to mention the conditions by which one becomes a “natural born Citizen,” which you say does not amount to any definition. But you really are hugely mistaken. As you know, Vattel in Section 212 of The Law of Nations set out the definition of a “natural-born citizen” in no uncertain terms. Here is what he said:
“The citizens are the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see, whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for if he is born there of a foreigner, it will be only the place of his birth, and not his country.”
Id. Sec. 212 Citizens and natives.
Continued . . .
II of III
ReplyDeleteVattel’s definition and rationale was accepted in cases of our U.S. Supreme Court and lower courts. See The Venus, 12 U.S. (8 Cranch) 253, 289 (1814) (Chief Justice John Marshall, concurring, cites and quoted from Emer de Vattel, Section 212 of The Law of Nations wherein he specifically defined a “natural-born citizen”); Inglis v. Trustee of Sailor's Snug Harbor, 29 U.S. 99 (1830) (children follow the citizenship of their parents or partus sequitur patrem); Barry v. Mercein, 46 U.S. 103 (1847) (argument of counsel that the common law rule in the United States was that the children followed the citizenship of their parents or partus sequitur patrem, citing Inglis); Dred Scott v. Sandford, 60 U.S. 393 (1857) (Daniels, J., concurring, cites and quotes Vattel’s Section 212’s definition of a “natural-born citizen”); Minor v. Happersett, 88 U.S. 162, 167-68 (1875) (paraphrases Vattel’s Section 212 definition of a “natural-born citizen); Ex parte Reynolds, 20 F.Cas. 582, 5 Dill. 394, No. 11,719 (C.C.W.D.Ark 1879) (cites and quotes Vattel’s Section 212 definition of a “natural-born citizen”) ; Ludlam v. Ludlam, 26 N.Y. 356 (1883) (the lower court said “[t]he universal maxim of the common law being partus sequitur patrem,” and the appeals court explained: “Vattel says: ‘ Society not being able to subsist and perpetuate itself, but by the children of its citizens, those children naturally follow the condition of their fathers and succeed to all their rights.’ B. 1, ch. 19, § 212”); United States v. Ward, 42 F.320 (C.C.S.D.Cal. 1890) (cites and quotes Vattel’s Section 212 definition of a “natural-born citizen”); and U.S. v. Wong Kim Ark, 169 U.S. 649, 708 (1898) (when defining a “natural-born citizen,” cites and quotes Minor’s Vattelian/American common law definition of a “natural-born citizen”) and Perkins v. Elg, 307 U.S. 325 (1939) (confirmes that a child born in the U.S. to citizen parents, even if those parents are naturalized U.S. citizens, is a “natural born Citizen”).
Hence, when Minor addressed the meaning of a “natural-born citizen” and said it came from the common law with which the Framers were familiar when they drafted the Constitution, it was not doing it without any historical or legal basis to support what it said. And given what other authorities had said before about the meaning of a “natural-born citizen,” we can see that Minor did nothing but confirm the definition of the clause that had already been defined by Vattel and accepted by Chief Justice John Marshall, Justice Daniels, and other founders such as David Ramsay and St. George Tucker. This is not to mention other U.S. Supreme Court cases such as Inglis and Shanks which had confirmed that we adopted Vattel’s jus sanguinis model of citizenship and not the English common law’s jus soli one. In all these sources, we did not see any other definition of the “natural-born citizen” clause.
Continued . . .
III of III
ReplyDelete(b) Second, I have already explained to you that once Minor confirmed the definition of the clause, it is foolish to expect that the Court would then have added that one had to satisfy that definition or else one could not be a “natural-born citizen.” This is not the way a court behaves after setting down what the applicable rule is on a given matter. Rather, the requirement to meet the material elements of any definition provided is automatically implied and expected once the rule is proclaimed and confirmed. And this is exactly what Minor did.
(c) Third, you suggest that Minor, by not expressly saying that any one condition (birth in the country or birth to two citizen parents) was necessary to make a “natural-born citizen” left open other definitions for the clause. But you are mistaken. The Court said that at common law, if one was not born in the country to citizen parents, one was an alien or foreigner. That was an absolute statement which left no other possibilities for birthright citizenship at common law. The Court gave us the only other scenario that was left open given what “some authorities” had contended, i.e., that a child born in the United States to alien parents was also a citizen. The Court said that “there have been doubts” whether those children were “citizens.” Of course, if there was any doubt if those children were “citizens,” the Court could not have had in mind the English common law which left no such doubts and those children surely could not have been “natural born citizens,” for doubts existed about their citizenship status because they did not meet the definition of being “natural-born citizen” which by doing so would have left no doubt about their citizenship status. Additionally, according to Minor, the only possible status that such a child could have had was that of a “citizen.” It did not say “natural-born citizen.” And we know from Wong Kim Ark that that Court, in fact, held Wong to be a “citizen,” not a “natural-born citizen.”
So all your talk about Minor not confirming what a “natural-born child” is amounts to nothing more than your own wishful thinking and manipulations and distortions geared to constitutionally legitimize Barack Obama to be President.
(2) You have already presented your sources that you say support your position. I have already addressed them and showed you that they are in fact either no authority at all or a misstatement of an authority. (I have repeatedly told you that you are not quoting St. James Tucker, but some other unidentified person.)
(3) If the Founders and Framers meant to give a “natural born citizen” the same meaning that the English and the colonists gave to an English “natural born subject,” they would have told us. You fail to appreciated that they chose a different clause and that that could only mean they rejected the land-based feudal “natural born subject” and replaced it with the consent-based republican “natural born Citizen.”
History, U.S. Supreme Court case law, reason, and logic are all stacked against you. Yours is a losing cause, despite what some lower courts have said in favor of Obama. If you want to establish Barack Obama to be constitutionally eligible for the Office of President, then you are going to have to get the U.S. Supreme Court to say so, for he surely is not, based on the existing historical and U.S. Supreme Court record.
The elections of U.S. Senator Gallatin (1793) and U.S. Senator Shields (1849) were voided after petitions were presented to the Senate claiming that they were ineligible.
ReplyDeleteSee:
http://www.archives.gov/exhibits/treasures_of_congress/Images/page_4/16b.html
http://www.senate.gov/artandhistory/history/minute/Senator_for_three_states.htm
Mario,
With your expertise and knowledge would you consider creating a petition at the whitehouse.gov site requesting the 2008 & 2012 Presidential Elections be voided due to the fact that Obama is not a natural born citizen?
To distinguish "natural-born citizen" from "born citizen" you need a case where someone was declared *not* to be one while being the other. You need an exclusive, not an inclusive statement as in Minor. In over 200 years of American jurisprudence, I don't know of any such case. Do you?
ReplyDeleteThe eligibility of the native-born is not a recent idea invented to legitimize Obama. Quite the opposite. The American legal community has considered it to be clear and settled since long before there were obots. Blacks Law Dictionary, the preeminent reference on American legal terms, has for decades defined natural-born citizens as those born in the jurisdiction of a national government. The sixth edition goes farther, "Natural born citizen. Persons who are born within the jurisdiction of a national government, i.e. in its territorial limits, or those born of citizens temporarily residing abroad."
Dr. Conspiracy found a reference from 1904, "Judicial and statutory definitions of words and phrases", also from West Publishing. It's available for free at books.google.com under id cJENAAAAYAAJ.
The eligibility of foreign-born citizens from birth has been a more difficult case. There is now a wide consensus in the U.S. legal community that they qualify, but historically there have been doubts. For example:
"It is clear enough that native-born citizens are eligible and that naturalized citizens are not. The recurring doubts relate to those who have acquired United States citizenship through birth abroad to American parents." [ Charles Gordon, 'Who Can Be President of the United States: The Unresolved Enigma', 28 Md. L. Rev. 1, 19 (1968).]
"It is well settled that 'native-born' citizens, those born in the United States, qualify as natural born. It is also clear that persons born abroad of alien parents, who later become citizens by naturalization, do not. But whether a person born abroad of American parents, or of one American and one alien parent, qualifies as natural born has never been resolved." [Jill Pryor, 'The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty', 97 Yale Law Journal 881-889 (1988)]
The historically uncertain and enigmatic question is not the issue with Obama. I don't know of anyone in our time who seriously questioned the eligibility of native-born citizens with foreign parents. Correct me if I'm wrong on this: The few attorneys who now argue against it cannot even cite themselves holding the opinion before late in 2008 when Obama became the issue.
Here's another unresolved question on presidential eligibility: Does the 14 year residency requirement mean the 14 years immediately prior to assuming office, or any combination of periods in the candidate's life? If you have a strong opinion on it, the time to speak up is now, when what is at stake is the principle rather than any particular candidate.
Unknown said....
ReplyDelete""It is well settled that 'native-born' citizens, those born in the United States, qualify as natural born. It is also clear that persons born abroad of alien parents, who later become citizens by naturalization, do not. But whether a person born abroad of American parents, or of one American and one alien parent, qualifies as natural born has never been resolved." [Jill Pryor, 'The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty', 97 Yale Law Journal 881-889 (1988)]"
Settled? ......... by whom, where, when, by SCOTUS?
Someone writes a paaper fo a university journal and "it is well settled"?
Nonsense.
The Framers didn't get the term "natural born Citizen" out of a dictionary.
ReplyDeleteA dictionary doesn't establish legal definition, when that definition has not yet been ratified by the SCOTUS.
Blacks Law Dictionary with regard to Article II NBC is merely unqualified opinion which is not supported by SCOTUS.
In fact it disagrees with SCOTUS opinion.
Unknown,
ReplyDeleteI of III
(1) You said and asked: “To distinguish "natural-born citizen" from "born citizen" you need a case where someone was declared *not* to be one while being the other. You need an exclusive, not an inclusive statement as in Minor. In over 200 years of American jurisprudence, I don't know of any such case. Do you?”
(a) A court or legislature may give a definition of a certain term. Or Congress may write a constitutional amendment that also provides a certain definition. Once a court, legislature, or Congress states what the definition is, the elements of the definition are established as the paradigm for establishing the thing defined. For example, the Fourteenth Amendment says: “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.” This is all Congress wrote in this amendment which defined a “citizen of the United State.” At the same time, Congress did not also say that if someone is born in the United States, but not born “subject to the jurisdiction thereof,” that person is not a “citizen of the United States” under the amendment. So as can be seen, to require of courts and legislatures, who lay down definitions includes elements of which must be satisfied for one to meet that definition, that they also state that anyone who does not satisfy any one of the elements of the definition fails to satisfy the definition is simply absurd. It is because of this absurdity that Minor would not in one instance set out the definition of what is a “natural-born citizen” and then at the same time say that if someone did not satisfy one element of the definition, that person would not be a “natural-born citizen.”
(b) Minor confirmed the definition a “natural-born citizen, saying that a child born in a country to parents who were its “citizens” at the time the child was born was not only a “citizen,” but also a “natural-born citizen.” It said that at common law, any person who did not meet these birth circumstances was an “alien” or “foreigner.” It then added that based on what “some authorities” contended, a child “born in the jurisdiction” to alien parents was included as a “citizen,” but “there have been doubts” whether that was correct. Clearly, from what the Court said, under the settled common law rule, a child born in the United States to alien parents was an “alien” or “foreigner.” Also, if the latter child was a “citizen” as “some authorities” contended, that child would be a “citizen” from the moment of birth. But the Court was not willing to recognize that child to be a “natural-born citizen.” It said at best the child could be a “citizen.” So, this is an example of a court excluding someone from being a “natural-born citizen,” due to being either an “alien” or “foreigner,” or just a “born citizen.”
Continued . . .
II of III
ReplyDelete(c) Wong Kim Ark answered the question left open by Minor, i.e., whether a child “born in the jurisdiction” to alien parents was a “citizen” under the Fourteenth Amendment. Wong Kim Ark recognized that Wong was a Fourteenth Amendment “citizen of the United States,” but not an Article II “natural born Citizen.” Justice Gray told us twice of this distinction. The first time he said: “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.' Page 22, note. This paper, without Mr. Binney's name, and with the note in a less complete form, and not containing the passage last cited, was published (perhaps from the first edition) in the American Law Register for February, 1854. 2 Am. Law Reg. 193, 203, 204. ” Wong Kim Ark, at 665-66. Later in his opinion, Justice Gray, in speaking about a child born in the United States to alien parents again said that an alien’s “child, as said by Mr. Binney in his essay before quoted, '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.'” Id. at 694. It is critical that when he mentioned it for the second time, his sentence followed the Court’s conclusion which he based on how the English common law held aliens in amity to have sufficient allegiance to the King to make his children born in the King’s dominion “natural born subjects,” that Wong was born “subject to the jurisdiction” of the United States. So twice, Justice Gray told us of the distinction between a child born in the country to aliens and a child born in the country to “citizen” parents. He explained that both are “citizens,” but only the latter is a “natural-born citizen.” So, Wong Kim Ark included Wong as a “born citizen,” but excluded him as a “natural-born citizen.”
(2) Your reliance on Black’s Law Dictionary as a source for defining a “natural-born citizen” is misplaced. First, we do not amend the Constitution by publishing the meaning of clause contained in the Constitution in some legal dictionary. Second, while Black’s finally got around to attempting to define a “natural born citizen” in the Sixth edition, it provides no primary sources that support its definition. Third, what Black’s believes to be a “natural-born citizen” is really only a born citizen under the Fourteenth Amendment, which is a different class of citizen from a “natural-born citizen.” Fourth, while we are on dictionaries, why do you not provide for us a dictionary that existed at the time of the adoption of the Constitution which provides the same definition as Black’s now puts forward. Do you not think that a dictionary from that time period would be more convincing than Black’s (first published in 1891) whose Fifth edition of 1979 did not even mention let alone define the clause “natural born citizen?”
(3) You state: “The eligibility of foreign-born citizens from birth has been a more difficult case. There is now a wide consensus in the U.S. legal community that they qualify, but historically there have been doubts.”
By this statement you reveal the contradiction in your argument that a “natural born citizen” is any “born citizen.” These children born out of the United States to U.S. “citizen” parents are just as much born citizens as a child born in the United States to alien parents (accepting the current interpretation of the Fourteenth Amendment as to the latter). There is no doubt that they are both “born citizens.” Yet you say that “historically there have been doubts” whether the child born out of the United States is a “natural born citizen.” Would you please explain for us why in your book there are “born citizens,” who present no question on their eligibility to be President, but then there are other “born citizens” whose eligibility to be President has been and continues to be questioned. Please provide for us where in the Constitution there exits a distinction between such “born citizens.”
Continued . . .
III of III
ReplyDelete(4) You cite Charles Gordon, “Who Can Be President of the United States: The Unresolved Enigma,” 28 Md.L.Rev. 1, 19 (1968) and Jill Pryor, “The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty,” 97 Yale L.J. 881-889 (1988). Neither Gordon nor Pryor provide any historical sources or U.S. Supreme Court cases which show that it is “well-settled” that “native-born citizens,” born in the United States, are “natural born citizens.” I do not understand such a statement. The Constitution calls for “natural born citizens.” When did they get changed to “native-born citizens,” assuming the latter has some different definition from the former? Did you know that Mr. Gordon said in his article that Wong Kim Ark had nothing to do with defining a “natural born Citizen?” Did you know that Pryor even argues that a “naturalized born citizen” is a “natural born citizen?”
(5) You said: “I don't know of anyone in our time who seriously questioned the eligibility of native-born citizens with foreign parents. Correct me if I'm wrong on this: The few attorneys who now argue against it cannot even cite themselves holding the opinion before late in 2008 when Obama became the issue.”
A famous Holmesian dictum provides that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). There have been 42 Americans that have served as President (not including Mr. Obama). Ten were born before 1787. Until Martin Van Buren (who was born in 1782 or six years after the signing of the Declaration of Independence) became President in 1837, all the Presidents had been born before 1776 to parents who, undoubtedly, at the time considered themselves to be loyal subjects of one of the Georgian Kings. All Presidents born after 1787, except for Chester Arthur, met the “natural born Citizen” criteria, i.e., born on U.S. soil to a mother and father who were themselves U.S. citizens at the time of the President’s birth. There have been 46 Americans that have served as Vice-President (not including Mr. Biden). Ten were born before 1787. All Vice-Presidents born after 1787, except for Chester Arthur, met the “natural born Citizen” criteria. Fourteen Vice Presidents have gone on to be President. Maybe that little bit of history explains why no one has “seriously questioned the eligibility of native-born citizens with foreign parents” to be President.
(6) I will address your question regarding the need that a would-be president also had “been fourteen Years a Resident within the United States” at another time.
Unknown said ....
ReplyDelete"Here's another unresolved question on presidential eligibility: Does the 14 year residency requirement mean the 14 years immediately prior to assuming office, or any combination of periods in the candidate's life? If you have a strong opinion on it, the time to speak up is now, when what is at stake is the principle rather than any particular candidate."
Later, or maybe YOU wish to look into that aspect.
What's paramount at this stage is the fact that Obama did and doesn't qualify as an Article II "natural born Citizen", because he was not born "under the ligeance of" citizen parents.
Obama is alien-born even if he was born (as alleged but not proven)in Hawaii.
You look into the 14 year thingy, and let us know how you go.
btw, why don't you use your real name?
Mario uses his.
Citizens can be categorized as being in one or the other of two groups, which are: natural citizens, or citizens who are not natural citizens; natural citizens or legal citizens, natural citizens or man-made citizens; natural citizens or government-permission citizens.
ReplyDeleteAny citizen who possesses citizenship via law, -via government, is ineligible to serve as president because he is not a natural citizen.
No natural citizen possesses legal citizenship. All legal citizenship involves having a foreign father or mother. No one with American parents is a legal citizen because their citizenship is not granted by any law nor provision of any constitution.
Natural citizenship is above all law and government, pre-dates them both, and is the nature of those who created the government in the first place.
The opinions of men are irrelevant to their unalienable right to membership in their own nation.
Those born to foreigners, to outsiders, to aliens have no natural right to citizenship in any nation on earth except through their parents.
They are unlike all those who are accepted to guard the President, or to guard, access, and launch nuclear bombs. They all must be and are born of American parents. Only natural citizens can guard the President and launch American nuclear bombs.
Children with foreign parents are rejected for such positions, and rejected by the Constitution from serving as the Commander of those who serve in such critical positions. No child of a foreigner can constitutionally command the natural citizens of the American military and federal forces.
Natural citizenship is dependent on only one thing; inheritance of citizenship from the father. Law, legal opinions, administrative policy, treaties, constitutional amendments, and national boundaries have no relevance to natural citizenship because it is outside of the all of those realms. It is derived solely from the realm of Nature and its law of natural membership.
All reproducing pairs reproduce after their own kind regardless of where birth takes place. Each species and each natural-group's couples reproduce members of their same species or group.
Their off-spring are natural members, (natural citizens) and their national membership is primal, -beneath the foundation of government, as fundamental as the right to life, self-defense, property, justice, liberty, etc. It is not something with which they are born. It is something that they are born being. They are not born WITH American citizenship. They are born AS Americans and nothing else.
Part II
ReplyDeleteBut children of aliens are ALL born as *something else* and that is because they have dual-membership in two nations by legal permission of government, which is an unnatural state, like being a hermaphrodite or a hybrid, or a cross-breed.
They are the mules of the citizenship realm; -not a horse nor a donkey, but an unnatural mix of the two. They are thus ineligible to serve as the Commander-in-Chief of the American forces.
Barack Obama is not a statutory citizen, nor a derivative citizen, nor a provisional citizen, nor a constitutional citizen. He is merely an administrative policy citizen based solely on the opinion of the Attorney General in 1898-'99who reinterpreted the opinion of the Supreme Court in the Wong case.
That fool opined that the court had declared that anyone born in the U.S. was a citizen, when it never said any such thing. It held that those born subject to the full jurisdiction of the federal government were born as citizens. That required that the father be a legal immigrant to the United States, meaning he was a permanent resident member of American society and subject to military service. Obama's father was no such person.
The opinion of that AG greatly exceeded that of the court and has become set in stone for over 100 years. But that stone could easily be smashed by any federal court or the current Attorney General who could declare that the previous opinion was manifestly incorrect and from now on the government would adhere to the limits of the Wong opinion.
Such a reversal would reveal the true nature of Obama's citizenship. It hangs by a thread and has no basis in American law.
But the AG's opinion carries the weight of law so everyone assumes that it must be the law. But it is in fact nothing more than an opinion enforced as policy. That policy does not make Obama a natural citizen of the United States although it allows the government to consider him to be a citizen.
The nation has been dumbed-down so much that most people just assume that all citizens except naturalized citizens can be President, but that is totally false. Only natural citizens are eligible to be President, nor merely "born citizens" -meaning native-born citizens.
Not all native-born citizens are natural citizens, and not all natural citizens are native-born. Parentage is everything! Location of one's mother's womb during birth is irrelevant except to the native-born constitutional citizen.
Without birth in the U.S. the 14th Amendment provides no citizenship to children of immigrants, but birth in the U.S. is irrelevant to natural citizenship because it is conveyed naturally, via the parents.
Adrien Nash
obama--nation.com
Re: "It is derived solely from the realm of Nature and its law of natural membership."
ReplyDeleteIf that were true, then the Federalist Papers or other writings of the writers of the US Constitution would have confirmed it. Instead they used the term "Natural Born", which was a legal term used in the common law for 300 years, and IF they had intended to use the term any differently than the common use of the term at the time, and that was the common law use of the term, they would have told us.
Re: "What's paramount at this stage is the fact that Obama did and doesn't qualify as an Article II "natural born Citizen", because he was not born "under the ligeance of" citizen parents."
Answer: Since the meaning of Natural Born refers to the place of birth, there is no need for the parents (not even one of them, much less two) to have "ligeance." Blackstone says that every child born in the country is, under the common law, Natural Born, and that is what the US Supreme Court ruled in the Wong Kim Ark case too, and unless and until it is overturned by another ruling of the US Supreme Court (not very likely) or that we pass a Constitutional Amendment changing the definition (even less likely), the legal meaning of Natural Born Citizen does come from the common law and refer to the place of birth.
Re: "where, when, by SCOTUS?"
Answer. In the Wong Kim Ark case, which said:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
The fact that the Wong Kim Ark case, and not Minor v. Happersett is the key decision has now been confirmed by (if my count is right) ten separate courts, and not one ruled that the key decision was Minor v. Happersett or that two citizen parents are required.
To repeat, unless and until the US Supreme Court reverses the words in Wong Kim Ark case (not very likely) or there is a Constitutional Amendment defining the term differently than as stated in the Wong Kim Ark case, the words in the Wong Kim Ark case are the law in the USA, and hence Obama and Rubio and Jindal (ALL of whom were born here) are Natural Born Citizens.
From 1790 to 1855, constitutionally legislated Naturalization law properly required a U.S. citizen father to produce a U.S. citizen child.
ReplyDeleteLet that sink in a bit. There was NO JUS SOLI, even from the British . . . from 1772 and earlier, a British father having a child on U.S. soil produced a British subject (natural born in fact).
Where did Jus Soli come from? A century or more of British control over the colonies, that is all. The states did not have jurisdiction, the British crown did.
Come 1866 and the Civil Rights Act, and months later the introduction of the 14th Amendment, with the Preamble, 'a child born in the United States.'
That bill and amendment was to correct the lack of jus sanguinis nationality and specific to cases of children born of freed slaves, who were property/chattel, not citizens. Therefore, the Bill and Amendment had to introduce, i.e., fall back on Jus Solis (born in the United States) and the lack of any subjection to foreign power of the father to guarantee U.S. citizenship at birth to the children of former slaves.
Then comes Wong Kim Ark, a child born of aliens and a Chinese national at birth. Only Treaty and Act prevented Wong Kim Ark, born in the U.S., from following existing Alien and Nationality Act (Naturalization law) and as an adult apply for citizenship.
So, instead of exerting constitutional authority over Treaty, Wong Kim Ark misinterpreted the 14th Amendment to create citizenship-at-birth for those already born with alien nationality. That was in 1898, and citizenship conferred solely from a mother didn't come until the 1920/30s.
The result was the corruption of our nationality laws, the virtual invasion of our borders by Mexico, Central and South America . . . and the misapprehension that any child born on U.S. soil is not only a citizen, but eligible to be president.
In an era when Congress is finally faced with Immigration Reform, or lose the United States electorate to the Democrats through illegal immigration . . . this Distinction is Essential!
Adrien Nash or h2ooflife,
ReplyDeleteI of II
Thank you for your thoughtful comment. You said:
“Natural citizenship is dependent on only one thing; inheritance of citizenship from the father. Law, legal opinions, administrative policy, treaties, constitutional amendments, and national boundaries have no relevance to natural citizenship because it is outside of the all of those realms. It is derived solely from the realm of Nature and its law of natural membership. All reproducing pairs reproduce after their own kind regardless of where birth takes place. Each species and each natural-group's couples reproduce members of their same species or group. Their off-spring are natural members, (natural citizens).”
But I must advise that it is my position that you have part of the full story. Mankind does not, like animals, live in a state of nature, but rather in civil societies which form various nations throughout the world. Members of those nations, which stay together as nations based on a political philosophy, are called “citizens,” “subjects,” or some like term. Hence, being a “natural born Citizen,” cannot be analogized to just being a natural born animal. Consequently, being a “natural born citizen” is not depended only upon birth to a citizen father. Allow me to further explain.
Emer de Vattel, in The Law of Nations (London 1797) (1st ed. Neuchatel 1758), explained that the “great end” of mankind is to be happy. Book I, Preliminaries, Section 6. To be happy, mankind needs to follow the laws of nature and to maximize that happiness to also follow the word of the creator of the universe. Id. This great end establishes the rules by which mankind lives. Id. He said that to maximize that happiness, people, through their intelligence and ability to reason, join together for their mutual advantage and create civil society. Id. at Section 10. He also explained that in pursuing that happiness, mankind needs to perfect and preserve his or her human nature. Book I, Chapter II, Section 14. In this connection, an individual’s foremost duty is “to preserve and to perfect his own nature.” Id. He then stated that nations have the same duties. He showed that perfection is to pursue all that is good based on the Law of Nature, with that good being the ends or objects of civil society which are to promote life and happiness, achieved by guaranteeing liberty, equality, private property, justice, safety, and defense from external violence. Section 15. He then defined a nation’s duty to preserve itself as “preservation” of the “political association by which it is formed.” Section 14.
In Section 212 of Chapter XIX, Vattel defined ‘citizens” as “the members of the civil society: bound to this society by certain duties, and subject to its authority, they equally participate in its advantages.” He then defined the “natural-born citizens” as “those born in the country, of parents who are citizens.” There is also explained that a “society cannot exist and perpetuate itself otherwise than by the children of the citizens.” He added that a society must desire that children follow the condition of their parents “in consequence of what it owes to its own preservation,” for only by such inheritance will a child’s place of birth be the country that he grows to love and want to preserve rather than just the place of his or her birth. Hence, Vattel saw the “natural-born citizens” as those needed to preserve the political associations which people living in a state of nature have made to create civil society and thereby a nation or state whose purpose it is to promote the perfection of the lives of its people.
Continued . . .
II of II
ReplyDeleteThe historical record is replete with evidence of the great influence that Vattel had over the Founders and Framers, who also dedicated themselves to “the Laws of Nature and of Nature’s God” (The Declaration of Independence) and over their decision “to dissolve the Political Bands which have connected” the People of America with the People of Great Britain (Id.) and over the content of their new Constitution. The Founders and Framers, like Vattel, also divided the members of the United States into “citizens” (“who they called “Citizens of the United States”) and “natural born Citizens.” Their use of a “natural born Citizen” for Presidential and Commander eligibility purposes was driven by what they perceived to be a nation’s first duty which they understood was self-preservation. To satisfy that duty, they required that all future Presidents and Commanders in Chief of the Military be from the moment of birth in allegiance and loyalty only to the United States. And to achieve this goal, they wrote in Article II, Section 1, Clause 5, that for future presidents and commanders, “[n]o person except a natural born Citizen . . . shall be eligible to the Office of President.”
The Founders and Framers, from studying ancient Greek and Roman history, and the English common law, were well aware that allegiance and birth go together, and that a child from the moment of birth inherits allegiance and citizenship from one or both of his or her parents (the Romans called this jus sanguinis, meaning right, power, or privilege inherited by being born to certain parents) and from the place of his or her birth (what the Romans called jus soli, meaning right, power, or privilege inherited by birth on a country’s soil). Regarding the parents, wives acquired the allegiance and citizenship of their husbands, hence allegiance and citizenship was always united in the husband. With these realities, and to assure that a “natural born citizen” was born with sole allegiance and loyalty to the United States, they required birth in the country to parents who were its citizens at the time of the child’s birth. Not to require birth in the country and that both parents be citizens would have left the child born with foreign and conflicting allegiances and loyalties (inherited either by jus soli or jus sanguinis or both) which is what they sought to avoid for future Presidents and Military Commanders. So, to be a “natural born citizen,” which means one is born in allegiance, jurisdiction, and citizenship only to the United States, one must have unity of allegiance and citizenship at birth which can only be obtained by being born in the country to parents who were its citizens at the time of the child’s birth.
smrstrauss said...
ReplyDelete"Since the meaning of Natural Born refers to the place of birth, there is no need for the parents (not even one of them, much less two) to have "ligeance." Blackstone says that every child born in the country is, under the common law,"
Garbage!
Place of birth did not make a "natural born".
You do have a comprehension problem.
With regard to 17th century ECL, Lord Coke trumps Blackstone, although the operative word of Blackstone is "generally", which means basically in most instances, save when the father was not a "subject".
According to Lord Coke per Calvin's case (the very ECL case relied on and cited by Horace Gray in WKA)the meaning of "natural born subject" is to be born under the ligeance of a subject.
The place of birth is only relevant in ECL if the father of the child is an alien-born.
In 17th century ECL, if a child was not born under the ligeance of a subject then that child would be alien-born, even if born in the realm.
Lord Coke - Calvin's case...
"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
"but any place within the king’s dominions without obedience can never produce a natural subject."
The 17th century ECL was VERY CLEAR on this, i.e. that without a father who is a "subject", a native-born child cannot be a subject of any kind and was in fact an alien-born.
Given that the Framers might have observed the ECL as a guidance with regard to the definition of the "natural born" component of the term "natural born subject", then in their minds, for a native-born child to be a US "natural born Citizen", the child MUST be born under the ligeance of a US citizen.
You have been shown the truth and facts, learn to live with it.
smrstrauss said/quoted....
ReplyDeleteRe: "where, when, by SCOTUS?"
Answer. In the Wong Kim Ark case, which said:
"It thus clearly appears that, by the law of England for the last three centuries, beginning before the settlement of this country and continuing to the present day, aliens, while residing in the dominions possessed by the Crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, the jurisdiction of the English Sovereign, and therefore every child born in England of alien parents was a natural-born subject unless the child of an ambassador or other diplomatic agent of a foreign State or of an alien enemy in hostile occupation of the place where the child was born.
III. The same rule was in force in all the English Colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the Constitution as originally established."
You really DO have a serious comprehension problem.
I have bold-faced the pertinent part in the quote you provided from WKA.
What you have quoted, completely supports what I have been showing you.
As you can SEE it is saying that friendly aliens in the English realm were "subjects", and as such, their native-born children were "natural born subjects", because they were born under the ligeance of a subject.
That's why for a native-born child in US to be a "natural born Citizen", the child MUST be born under the ligeance of a US citizen.
Unlike the English, the US did not embrace all friendly aliens as citizens (subjects to the English), they had to be naturalized by due process, THEN a citizens (subjects to the English) their native-born children could be "natural born Citizens" of the US, because the children would be born under the ligeance of US citizens.
@ smrstrauss
ReplyDeleteTHINK!
COMPREHEND!
Lord Coke - Calvin's case
"... any PLACE within the king’s dominions WITHOUT OBEDIENCE can NEVER produce a natural subject."
"This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometime it is called the obedience or obeysance of the subject to the King,"
"Natural born" is all about the subject/citizen status of the PARENTS.
(I) Thanks for approving my comment and replying. I will say my points stood up remarkably well. Attorney Appuzo, your article, right up front in the title, requires distinguishing "natural-born citizens" from "born citizens". In your reply, you joined me in being unable to cite a single case from over 200 years of American court decisions where anyone who was born a citizen was declared to *not* be a natural-born citizen.
ReplyDeleteWhat you offered instead was another example of an *inclusive* statement, this time from the 14'th Amendment. Your description of it as a definition is wrong. The Amendment does not mean that *only* "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". The obvious counter-example is John S. McCain III. He was not born nor naturalized in the United States, yet he is a citizen of the United States and of the state of Arizona.
I invited you to, “Correct me if I'm wrong on this: The few attorneys who now argue against it cannot even cite themselves holding the opinion before late in 2008 when Obama became the issue.” I stand uncorrected.
What you wrote instead I find astonishing: "A famous Holmesian dictum provides that 'a page of history is worth a volume of logic.' New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.)." Mr. Apuzzo, you posted your article two days after our 44'th President completed his first term, and one day after our 17'th Chief Justice swore him into office for second, (oops... no actually third... ops... sorry make that fourth) time. Where does that page of history leave your logic? Did you take Obama's re-election to be *good* for your cause in that you get another four years to try to get him impeached?
You are crying over spilled milk under the bridge after the horse is out. And - fair's fair - I understand that I'm arguing moot points, because, well, they're there. First, you cannot use Minor v. Happersett to distinguish natural-born citizens from born citizens. We all agree with the unanimous Minor opinion that people born in the country to parents who are citizens are natural-born citizens. That's not at issue. You are arguing that *only* those born in the country to parents who are citizens are natural-born citizens. You have committed the famous logical fallacy of taking "all X is Y" to mean that X is equivalent to Y and thus all Y is X. Wrong. To prove your point you need an example of not being a natural-born citizen while being born a citizen, and if your best attempts name Chester Arthur and Barack Obama, actual Presidents of the United States, the judges will disagree.
(II) Second, you are blaming/crediting Obama supporters for things we did not do and could not possibly have done. In the first paragraph of your article you call Obama eligibility supporters, "citizen/born citizen/natural born citizen conflationists". The seminal work of that conflation is Charles Gordon's article, cited above, and the Maryland Law Review published it when Barack H. Obama II was eight years old. Jill Pryor's article, also cited above, appeared the year that Obama became editor of the Harvard Law Review, at or about age 27, but the idea that the Yale Law Journal published it for Obama's benefit is ludicrous for many reasons, among them school rivalry. Likewise, various editions of Black's Law Dictionary refute this blog's definition of "natural-born citizen", and, with the remotely-arguable exception of the most recent, could not possibly have been influenced by "Barack Obama eligibility supporters". I am a Barack Obama eligibility supporter, but I only became one this millennium. I can assure you that we have no time machine.
ReplyDeleteAs I explained and cited in my previous comment, the issue in doubt in the American legal community has been the Article II eligibility of foreign-born children of citizens. There is now a wide consensus that disagrees with the article by Mario Apuzzo. According to most authorities today, the set of natural-born citizens is identical by definition to the set of born citizens. I understand that I am writing to an audience that may not accept that conclusion, and may denounce the very idea of looking to modern consensus. Thing is, Obama doesn't even need the modern consensus. He's a native-born citizen. See the 1904 reference. From before he was born until October or November of 2008 when he was poised to be the next president, no one said that a foreign father disqualified him from the presidency.
I am not cherry-picking references that agree with my own position. If I'm wrong, proving I'm wrong should be easy. Cite the letters to the editor disputing the assertion of Gordon and Pryor that the eligibility of the native-born was clear and settled. Show the articles calling into question Black's Law Dictionary for defining "natural-born citizen" as born in the jurisdiction of a national government.
MichaelN told me:
ReplyDelete"You look into the 14 year thingy, and let us know how you go."
When will I learn not to use rhetorical questions on the Internet?
Unknown said....
ReplyDelete"you cannot use Minor v. Happersett to distinguish natural-born citizens from born citizens. We all agree with the unanimous Minor opinion that people born in the country to parents who are citizens are natural-born citizens. That's not at issue. You are arguing that *only* those born in the country to parents who are citizens are natural-born citizens."
Response:
What "common law" do you suppose the SCOTUS in the Minor court was referring to, that on one hand, recognized a US natural born citizen as one born native and to US citizen parents, yet gave reason to doubt and give merit the notion that native-born children to aliens might not be citizens of any type?
It was the SCOTUS, not any of the litigants, that introduced this opinion and recognized the merit in the doubt, by stating that the doubt were yet to be solved.
What "common law" do you suppose was it that would exclude native-born children of alien parentage, from citizenship?
Especially since this was at a time after the adoption of the 14th Amendment, where the SCOTUS also stated that the definition of NBC was not to be found in the USC (which at the time included the 14th Amendment)yet the SCOTUS found Virginia Minor to be a US natural born citizen without any resort to the USC and it's 14th Amendment.
The SCOTUS in the Minor court made it clear that birth in US, to US citizen parents, made a natural born citizen and that birth in US to alien parents might not make a citizen at all, let alone a NBC.
The WKA court gave WKA recognition as a "citizen", but not a NBC, using the English common law as a guide in the peculiar case where there was question as to the subject/citizen status of an alien's child born native to the land.
It was ONLY in the case of a child born native to a friendly ALIEN that native-birth came into play as a factor, other wise in 17th century ECL, if a child was born to parents of high allegiance (i.e. already themselves NBS)then it did not matter what place the child was born.
It has ALWAYS been the status of the parents that was THE DECIDING factor in making a "natural born ******"
Unknown @ January 27, 2013 at 4:27PM,
ReplyDeleteI of II
I do not think you fared as well as you think you did. Your comment is full of fallacies and distortions.
(1)
(a) I have explained how the First Congress said that children born out of the United States to U.S. “citizen” parents were to be “considered as natural born citizens.” But even though these children were “born citizens,” Congress did not say they were in fact “natural born citizen,” but rather only that they were to be “considered as natural born citizens.”
(b) The Third Congress saw the need to establish through the Naturalization Act of 1795 that children who were born out of the United States to citizen parents were to be “considered as citizens of the United States,” but not to be “considered as natural born citizens.” Clearly, these citizens were “born citizens,” but the Third Congress went out of its way to make sure the nation knew that they were not to be considered as “natural born Citizen.”
(c) I showed you how the unanimous U.S. Supreme Court in Minor defined a “born citizen” under the common law with which the Framers were familiar, stating that a child born in a country to parents who were its citizens at the time of the child’s birth were not only “citizens,” but also “natural-born citizens.” I explained that the Court said that at common law any other child was an “alien” or “foreigner.” I explained that the Court indicated that “some authorities” went further and contended that children “born in the jurisdiction” to alien parents could also be included a “citizens,” but the Court said that “there have been doubts” whether that was correct. So, the Court suggested that there could be other “born citizens” under the Fourteenth Amendment which the court did not address, but in any event, since the Court only called them “citizens” and not “natural-born citizens” and they did not satisfy the Court’s common law definition of a “natural-born citizen” with which the Framers were familiar, the Court did not consider them “natural-born citizens.”
(d) I also showed you how Wong Kim Ark answered the question left open by Minor and found Wong to be a Fourteenth Amendment “born citizen,” but not an Article II “natural born citizen.”
Despite what I said, you continue to contend without any evidence that there is no distinction between “born citizens” under the Constitution or Congressional statute, i.e., that all “born citizens” are “natural born Citizen.” If what you say is correct, then explain why the First Congress only “considered as natural born citizens” those “born citizens.” Explain why the Third Congress saw the need to clarify through the Naturalization Act of 1795 that children who were born out of the United States to citizen parents were to be “considered as citizens of the United States” (without a doubt “born citizens”), but not to be “considered as natural born citizens.” Explain how your thesis can be reconciled with Minor and Wong Kim Ark.
(2) I did not say that the Fourteenth Amendment provides the only definition of a “citizen of the United States.” On the contrary, I have always said that, apart from the original “Citizens of the United States,” who acquired that status through the Declaration of Independence and by adhering to the American Revolution or by satisfying some state’s naturalization statutes, a “citizen of the United States” is defined under the Fourteenth Amendment, Acts of Congress, and treaties.
Continued . . .
II of II
ReplyDelete(3) You give importance to what some modern attorneys believed or did not believe before 2008 regarding the meaning of a “natural born Citizen.” Your point is frivolous. First, there was no live controversy before 2008 which focused people’s attention on the meaning of a “natural born Citizen” in the context of the question of whether children born in the United States to alien parents were “natural born Citizens.” Second, there was no Obama eligibility issue before 2008. Third, what modern lawyers publicly expressed before 2008 does not change the historical constitutional meaning of an Article II “natural born Citizen.” That definition exists regardless of what some modern lawyers believed before 2008.
(4) I said that a famous Holmesian dictum provides that "a page of history is worth a volume of logic." New York Trust Co. v. Eisner, 256 U.S. 345, 349 (1921) (Holmes, J.). Your response makes no sense. You want to include Obama within that history to create some exception to that history when my point is that he should be judged by that history which shows that with the exception of Chester Arthur, he does not fit within the “natural born Citizen” paradigm revealed by that history.
(5) You are wrong in saying that I am logically contending that all X is Y, that X=Y, therefore, Y=X. What I have said is that historically, we have a definition of a “natural born Citizen,” which the Founders and Framers adopted. That settled definition is a child born in the country to parents who were its citizens at the time of the child’s birth. That being the only definition of the clause ever articulated by our U.S. Supreme Court, the constituent elements of that definition are both necessary and sufficient to make a “natural born Citizen.”
(6) You are also wrong about Chester Arthur and Barack Obama being precedents regarding the meaning of a “natural born Citizen.” The last that I looked, under Article V the Constitution gets amended by amendments, not by popular elections.
A 'native born' citizen is a jus sanguinis child who happened to also be born in the United States. Logically, the the 'native' is a subset of the class 'citizen born,' not the determinative value.
ReplyDeleteIn 1790, both the British and U.S. relied on the citizenship of the father, not the place of birth.
Place of birth was only introduced by SCOTUS in Wong Kim Ark because freed slaves had no nationality to confer to their children. Without a citizen father, as required by 99-years of U.S. legislated act, the Gray decision raised Jus Soli from the grave of feudalism and violated Chinese law, treaty, and U.S. legislated act.
In other words, there was no 'natural law of jus soli' until the artifices of Wong Kim Ark resurrected it . . . and in my opinion created a 'zombie' law of dual nationalities and conflicts of law.
Mario Apuzzo asked:
ReplyDelete"If what you say is correct, then explain why the First Congress only 'considered as natural born citizens' those 'born citizens.' Explain why the Third Congress saw the need to clarify through the Naturalization Act of 1795 that children who were born out of the United States to citizen parents were to be 'considered as citizens of the United States' (without a doubt 'born citizens'), but not to be 'considered as natural born citizens.' Explain how your thesis can be reconciled with Minor and Wong Kim Ark."
The explanation is that you don't know what you are talking about. Contrary to your claim, the people that the Naturalization Act of 1795 said shall be considered as citizens of the United States were not "without a doubt 'born citizens'". Some were, but others could be up to 21 years old when granted citizenship. Here's a part at issue:
"And be it further enacted, that the children of persons duly naturalized, dwelling within the United States, and being under the age of twenty-one years, at the time of such naturalization, and the children of citizens of the United States, born out of the limits and jurisdiction of the United States, shall be considered as citizens of the United States: Provided [...]"
Try reading the acts and court decisions without your blinders. Those Congresses and Courts were dealing with who is a citizen, where your theory requires that they were going off on tangents about eligibility to be president.
(II) Mario Apuzzo wrote:
ReplyDelete"I did not say that the Fourteenth Amendment provides the only definition of a 'citizen of the United States.'"
Compare the scrupulous accuracy of my reporting to your prevarication. I wrote, "Your description of it as a definition is wrong." You did describe it as a definition. See above. It's not a definition. It's an inclusive statement, as I wrote.
paraleaglenm said...
ReplyDelete"In other words, there was no 'natural law of jus soli' until the artifices of Wong Kim Ark resurrected it"
Precisely.
Nowhere in the ECL case, i.e. Calvin's case, was it held or opined that native-birth was sufficient to make a natural born subject.
In fact Lord Coke goes to great lengths to stress that it is only the ligeance of the father that is THE deciding factor.
Lord Coke, on numerous occasions throughout his report of Calvin's case emphasizes that place DOES NOT make a natural born subject and that it is the ligeance of a subject that makes his child a natural born subject.
It is only in the case of a friendly alien visiting the realm, and whose child is born in the realm, that the native-birth is ONE factor of TWO, and that is STILL ONLY because the friendly alien FATHER is himself IN THE REALM thus making him a "subject" with temporary ligeance.
If an alien was in the realm, and was not a "subject", then his native-born child would be an alien born, ALL BECAUSE OF DADDY.
The native-born child of an alien father can only be a NBS if the father is IN the realm as a "subject", as well as the native-birth taking place.
NEVER did the ECL hold that native-birth was all that was required to make a NBS.
In the case of a friendly alien father, TWO inseparable qualities were required to make a NBS, they were the child's birth in the realm, and whilst the father was a "subject" with local ligeance, in the realm.
In the case of a subject with high ligeance, i.e. a born-subject father, the place did not matter.
In both cases, i.e. alien father or born-subject father, it is the "subject" status of the father and NOT the place of birth, that ultimately determines the NBS status of the child.
Mario Apuzzo wrote:
ReplyDelete"You give importance to what some modern attorneys believed or did not believe before 2008 regarding the meaning of a 'natural born Citizen.'"
O.K. Not exactly my point, but true enough. I believed Black's Law Dictionary and what I knew of the literature of American law. On that basis I thought that Obama would have no trouble at all dismissing you and Leo Donofrio. That's worked out. Think how silly I'd feel had I believed you instead.
I do not give much importance to us. You do understand, I hope, that we're doing this for our amusement. Who signs bills into law is important. That you insult his title as "de facto" is not.
Come to think of it, there's something else that's important to me. What do we tell a 10 year old Hawaiian-born child who's father was never a citizen if he or she asks, "Can I grow up to be President?"
Mario wrote: "we have a definition of a 'natural born Citizen,' which the Founders and Framers adopted. That settled definition is a child born in the country to parents who were its citizens at the time of the child’s birth. That being the only definition of the clause ever articulated by our U.S. Supreme Court, the constituent elements of that definition are both necessary and sufficient to make a “natural born Citizen.”
ReplyDeleteAs the most prolific, and wide-ranging author (by a long shot) on the subject of citizenship, I must again for the umpteenth time correct you on the matter regarding which you have a gigantic blind spot.
The founders of our nation had no legal definition of NBC because none existed nor needed to exist. That is because it is not a legal term. It is not defined in law nor derived from law, nor was it ever defined by Vattel. You incorrectly claim that his simple description of who is a natural member of a society is an all-inclusive, parameter-defining definition when it lacks all the necessary ingredients of a definition, principally the word "only". see THE TRUTH ABOUT VATTEL’S DESCRIPTION OF SOCIETIES
http://h2ooflife.files.wordpress.com/2012/06/the-truth-about-vattels-description.pdf
While it's true that ALL born in the nation of their parents nationality are the nation's natural citizens, it is NOT true that such a recognition EXCLUDES all born elsewhere. For that to be true would require the authoritative use of the word "only" as in ONLY those born within the borders...". Such a claim was never made by Vattel but that hasn't prevented you from making it on his behalf and then claiming that it is his "definition", when it is yours. And worse, you compound the error by then claiming that the founders adopted that non-existing "definition" when they did no such thing, and there's not a word anywhere that supports your claim that they did. Worse still is your claim that the SCOTUS adopted the non-existent "definition" in the Minor case, when its wording expresses no such thing. Your entire stance that place-of-birth is a required element of natural citizenship is entirely fallacious as it is built on a false assumption.
Mario Apuzzo wrote:
ReplyDelete"Your point is frivolous."
Maybe we should avoid that word. I'm happy to see you approving thoughtful comments by your opponents, as I intend mine to be, but I don't see any good coming from that direction.
Mario Apuzzo wrote:
"First, there was no live controversy before 2008 which focused people’s attention on the meaning of a 'natural born Citizen' in the context of the question of whether children born in the United States to alien parents were 'natural born Citizens.' Second, there was no Obama eligibility issue before 2008. Third, what modern lawyers publicly expressed before 2008 does not change the historical constitutional meaning of an Article II 'natural born Citizen.' That definition exists regardless of what some modern lawyers believed before 2008."
Ah, now that is central to the issue. Argument might possibly be productive.
You are absolutely correct that before 2008 there was no live controversy and thus no major focus of people's attention on the question. That is the *best* time to make a principled stand. Charles Gordon published his paper shortly after George Romney dropped out of the 1968 presidential race, and I don't think there was any particularly relevant candidate when Jill Pryor wrote her article in 1988. Here's where I disagree with you: That there was no no live controversy at the time of those articles is, in my opinion, a point their favor.
The Constitution's "Case or Controversy" clause limits the jurisdiction of the federal judiciary, but in no way limits your right to stand up for what you believe. You needed a certain kind of live controversy when you took your case to court, and the courts opined that you lacked such, but you would not have needed their approval to speak up as Gordon and Pryor did. You could have disputed their contentions and the definition in Black's. You did not dispute them until late in 2008, and, if you'll pardon me for posting a cliche on you blog, your silence speaks volumes.
I wrote: "It (natural citizenship) is derived solely from the realm of Nature and its law of natural membership."
ReplyDeletesmrstrauss replied...
"If that were true, then the Federalist Papers or other writings of the writers of the US Constitution would have confirmed it. [REALLY? WHY? FOR NO REASON WHATSOEVER.]
Instead they used the term "Natural Born", which was a legal term used in the common law for 300 years, [FALSE. "Natural born" is not a legal term of common law. Rather, "natural subject" "alien subject" "born subject" and natural born subject" were terms of common law, probably also "alien-born subject"]
and IF they had intended to use the term any differently than the common use of the term at the time, and that was the common law use of the term, they would have told us."
There was no such things as a common use of a term that didn't exist pre-1776, namely NBC, and being as only one or a few colonies--states allowed children of immigrants to be legally considered state citizens, it is safe to say that in all the other states there was virtually no use at all of the term NBC because everyone was either an NBC or a foreigner, NO "born citizens" were recognized in any of those states, nor by the federal government. Children of immigrants acquired U.S. and state citizenship only if the father naturalized. There was NOT FEDERAL JUS SOLI citizenship, -until after the Wong opinion more than a hundred years after the adoption of the Constitution.
Adrien Nash obama--nation.com
Vattel, and every SCOTUS opinion on the subject of citizenship are irrelevant to the derivation of citizenship,..being as it pre-dates all philosophical observations and legal opinions.
ReplyDeleteAll concepts and opinions about citizenship have their origin in the law of natural membership being as it is the only model by which *natural* groups exist. Any being that is not a natural member, but is accepted as one anyway, is thereby an adopted member.
Adopted members are never natural members, just as citizens by permission (even if it begins at birth) are not natural citizens anymore than an adopted baby is a natural member of a family into which it was not born.
Natural membership and natural citizenship are not related to law nor geography but solely to blood and natural inheritance. Natural citizenship is only acquired by natural inheritance, not by permission of government, nor by opinions of men in robes based on assumptions of men that preceded them.
Law and government are irrelevant to natural citizenship. They don't grant it nor legitimize it. Rather, they are created by those who possess it. Natural citizens are the gods of the system and its authors.
"We hold these truths to be self-evident, that all men are created equal; that they are endowed by common law...or endowed by government...or endowed by judicial potentates with certain government-granted rights, among which are natural citizenship."
Natural citizenship is not a gift of government nor a result of serendipitous birth in a certain place. Inheritance is EVERYTHING! and it's ABOVE and BEYOND all law and opinion. It can't be changed nor bounded by rules nor definitions. It is NATURAL!!!
All opinions cited are irrelevant. They can't make a baby nor a natural citizen. Only citizen parents can do that.
Mario, regarding your assumptions about the significance of the mention of NBC in the 1790 Naturalization Act and its later removal, there is only one reasonable explanation and it is only found in this exposition: WHY AMERICAN'S BORN ABROAD ARE ELIGIBLE TO BE PRESIDENT
ReplyDeletehttp://h2ooflife.files.wordpress.com/2012/09/americans-born-abroad.pdf
Until you read what it explains, you will not understand the purpose of its inclusion nor its later exclusion.
(III) Mario Apuzzo wrote:
ReplyDelete"You are also wrong about Chester Arthur and Barack Obama being precedents regarding the meaning of a 'natural born Citizen.' The last that I looked, under Article V the Constitution gets amended by amendments, not by popular elections."
Actually I think I've said less about them being precedents than you have, Mr. Apuzzo. Could be wrong, but either way: I grant your premise. I think the next United States President with a foreign parent (or two) will get any and all such eligibility challenges dismissed even more easily than did Obama, to the extent such ease is possible.
How do you know enough to quote, "A page of history is worth a volume of logic," yet be so oblivious as to what that says about the world in which we live? We've had two presidents with foreign fathers complete a term in office. One got re-elected to a second term. You challenged one, but your case did not make. Do you think you'll have more success, after Obama's second term, challenging the eligibility of Bobby Jindal or Marco Rubio?
Have a good time patting yourself on the back for reading what Article V said last time you looked.
UNK you wrote to Mario "You did not dispute them until late in 2008, and, if you'll pardon me for posting a cliche on you blog, your silence speaks volumes."
ReplyDeleteIt was not until late in 2008 that a client approached Mario to handle this case. The case Mario was asked to pursue was different than the others before it, this was the first case where the position of unified allegiance was first introduced into the "lex obamacon."
You make statements with out proof and where you do introduce proof you omit context, you are very unprincipled. Mario on the other-hand has taken a stand, and continues to take a stand based on principles so that a record of this controversy will exist for posterity. Whether or not posterity will care about it is another issue, why people are not speaking up for their rights as NBC, it would not be the first time a person had sold their birthright for a bowl of porridge.
The controversy existed and may still exist, as I await the socialist left's response to a Rubio, Jindal or Cruz candidacy but who was silent you infer it was Mario, but the silence came from the bench as the Supreme Court was forced to ignore their own precedents on the definition of a natural born subject. There was nothing, not a single precedent that could have saved Obama if the case was openly heard. Even the left's much vaulted Wong Kim Ark incorporated the definition of a natural born citizen from Minor into its ruling. In the end, the best history and legal precedent affords Obama is the titles of citizen of the United States and Presumptive President of the United States.
Unknown,
ReplyDeleteI can see from your latest volley of drivel that I have smacked you down nicely. You have reverted to your Obotic scorpion nature (which is stronger than you) and can no longer make reasoned and logical statements. May I suggest that you consider going back to Dr. Conspiracy's blog where you will find a mother's comfort.
SMStrauss,
ReplyDeleteSince you like Blackstone so much, here is A. V. Dicey an expert on English jurisprudence in respect to who BHO belongs to. US or GB.
"A legitimate child born during the lifetime of his father has his domicile of origin in the jurisdiction in which his father was domiciled at the time of his birth;" A. V. Dicey
So according to the Brits, BHOJr is theirs. Can you arrange for postage?
Teo Bear,
ReplyDeleteI of II
Very good. And that is why the New Jersey Supreme Court in Benny and the U.S. Supreme Court in Wong Kim Ark required that if children born in the United States to alien parents to be “citizens of the United States,” the parents had to be at least domiciled and resident in the United States. Wong Kim Ark, in commenting on Benny, said:
“In a very recent case, the Supreme Court of New Jersey held that a person, born in this country of Scotch parents who were domiciled but had not been naturalized here, was “subject to the jurisdiction of the United States," within the meaning of the Fourteenth Amendment, and was "not subject to any foreign power," within the meaning of the Civil Rights Act of 1866; and, in an opinion delivered by Justice Van Syckel, with the concurrence of Chief Justice Beasley, said: "The object of the Fourteenth Amendment, as is well known, was to confer upon the colored race the right of citizenship. It, however, gave to the colored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized, or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races; and unless the general rule, that when the parents are domiciled here birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the language, 'all persons born in the United States, and subject to the jurisdiction thereof,' was intended [693] to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race." Benny v. O'Brien, (1895) 29 Vroom (58 N.J. Law), 36, 39, 40.”
Id. at 692-93. But we can see that Benny said: “The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens.” And the reason it gave for their not being subject to that jurisdiction is that their parents were not U.S. “citizens.” So Benny, admitted that children born in the United States to alien parents were not born “subject to the jurisdiction of the United States,” because their parents were not “citizen” at the time of children’s birth. But since the Fourteenth Amendment made blacks “citizens” even though they too were not born “subject to the jurisdiction” of the United States (because not born to “citizen” parents), and to keep matters equal between whites and blacks, disregarded the need for “citizen” parents and declared children born in the U.S. to “domiciled” alien parents to be “citizens of the United States” under the Fourteenth Amendment. And Wong Kim Ark, following the lead of the New Jersey Supreme Court, but within the context of Chinese Americans, similarly held:
“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 domicile 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.”
Id. at 705.
Continued . . .
Teo Bear,
ReplyDeleteI of II
Very good. And that is why the New Jersey Supreme Court in Benny and the U.S. Supreme Court in Wong Kim Ark required that if children born in the United States to alien parents to be “citizens of the United States,” the parents had to be at least domiciled and resident in the United States. Wong Kim Ark, in commenting on Benny, said:
“In a very recent case, the Supreme Court of New Jersey held that a person, born in this country of Scotch parents who were domiciled but had not been naturalized here, was “subject to the jurisdiction of the United States," within the meaning of the Fourteenth Amendment, and was "not subject to any foreign power," within the meaning of the Civil Rights Act of 1866; and, in an opinion delivered by Justice Van Syckel, with the concurrence of Chief Justice Beasley, said: "The object of the Fourteenth Amendment, as is well known, was to confer upon the colored race the right of citizenship. It, however, gave to the colored people no right superior to that granted to the white race. The ancestors of all the colored people then in the United States were of foreign birth, and could not have been naturalized, or in any way have become entitled to the right of citizenship. The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens. The same rule must be applied to both races; and unless the general rule, that when the parents are domiciled here birth establishes the right to citizenship, is accepted, the Fourteenth Amendment has failed to accomplish its purpose, and the colored people are not citizens. The Fourteenth Amendment, by the language, 'all persons born in the United States, and subject to the jurisdiction thereof,' was intended [693] to bring all races, without distinction of color, within the rule which prior to that time pertained to the white race." Benny v. O'Brien, (1895) 29 Vroom (58 N.J. Law), 36, 39, 40.”
Id. at 692-93. But we can see that Benny said: “The colored people were no more subject to the jurisdiction of the United States, by reason of their birth here, than were the white children born in this country of parents who were not citizens.” And the reason it gave for their not being subject to that jurisdiction is that their parents were not U.S. “citizens.” So Benny, admitted that children born in the United States to alien parents were not born “subject to the jurisdiction of the United States,” because their parents were not “citizen” at the time of children’s birth. But since the Fourteenth Amendment made blacks “citizens” even though they too were not born “subject to the jurisdiction” of the United States (because not born to “citizen” parents), and to keep matters equal between whites and blacks, disregarded the need for “citizen” parents and declared children born in the U.S. to “domiciled” alien parents to be “citizens of the United States” under the Fourteenth Amendment. And Wong Kim Ark, following the lead of the New Jersey Supreme Court, but within the context of Chinese Americans, similarly held:
“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 domicile 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.”
Id. at 705.
Continued . . .
II of II
ReplyDeleteWe know from both the text of the Amendment and its history that the Fourteenth Amendment did not repealed or amended Article II and its “natural born Citizen” clause. We can also see that neither Benny nor Wong Kim Ark said that it did. Note that neither Benny no Wong Kim Ark said that the petitioner/plaintiff was a “natural born Citizen.” Rather, they said that they were Fourteenth Amendment “citizens of the United States.” See Article II, Section 1, Clause 5 for the critical distinction that the Founders and Framers made between these two classes of “citizens,” i.e., in the future the latter were no longer eligible to be President, for no person but the former was then eligible to be President. So, both Benny and Wong Kim Ark said that a child born in the United States to alien parents could be a Fourteenth Amendment “citizen of the United States,” if their parents were at a minimum “domiciled” and “resident” in the United States at the time of the child’s birth. Neither courts intimated in any way that that child was an Article II “natural born Citizen,” with Wong Kim Ark even distinguishing that child from the “natural born citizen” child of citizen parents.
Query: was Obama’s father “domiciled” in the United States when Obama was born? Domicile means the place were a person intends to reside permanently and to which one intends to return after being away. A person may have more than one residence, but can have only one domicile. Domicile is important because it gives rise to what law is applied to determine persons’ many rights and obligations such as what authority will tax them, where they can vote, what law will control the making and enforcing of their will and how their estate will pass at the time of death, and sometimes where they can marry and divorce. It is common knowledge that students are not domiciliaries of the places in which they may find themselves for the sole purpose of study, but continue to be domiciliaries of their true home to which they intend to return after completing their studies. The same applies to persons in the military service. They may be residing at those places, albeit temporarily, but they are not domiciled there.
Obama Sr. came to the U.S. on a student visa. He never manifested an intention to make the U.S. his permanent home. In fact, his intent was to get a good education in the U.S. and to return to him home country, Kenya, where he intended to go into politics and apply his newly-gained knowledge. He was therefore temporarily residing in the U.S. on a student visa, but was not domiciled here. The then Immigration and Naturalization Service (“INS”) eventually forced him to return to Kenya. Hence, the answer to the question of whether Obama’s father was “domiciled” in the United States when Obama was born is “no.” What this means is that under a strict application of Benny and Wong Kim Ark, Obama would not even be a Fourteenth Amendment “citizen of the United States,” let alone an Article II “natural born Citizen,” because his father was not domiciled in the United States at the time that he was born. But even if Obama’s father was domiciled in the United States, which I have shown he was not, Obama Jr. would be a Fourteenth Amendment “citizen of the United States, but not an Article II “natural born Citizen,” because at the moment of his birth, his father was not a U.S. “citizen.”
Mario,
ReplyDelete"Well-settled common-law principles provide that the domicile of minors, who generally are legally incapable of forming the requisite intent to establish a domicile, is determined by that of their parents, which has traditionally meant the domicile of the mother in the case of illegitimate children." 490 U.S. 30 (1989) J. BRENNAN
This is a SCOTUS ruling that would support the Dicey analysis.
How could the Framers of the USC have interpreted the 17th century ECL definition of "natural born subject" to mean that native-birth was all that was required to make a NBS, when NOWHERE did the ECL hold native-birth as sufficient to make a NBS.
ReplyDeleteIt's simply not in the 17th century ECL.
In fact the ECL clearly held that native-birth alone DID NOT make a natural born subject, but rather native-birth without a "subject" father made an alien-born.
Dear Obots,
ReplyDeleteYou talk about the term natural born citizen as being carried over from the common law of England. You banter names like Blackstone and Coke, but what do you say when the man who is called the "father of our Constitution" wrote a letter to the man who is called the "father of our Nation" expressly denying that the common law of England was incorporated into the Constitution.
To wit - “What can he mean by saying that the Common law is not secured by the new Constitution, though it has been adopted by the State Constitutions. The common law is nothing more than the unwritten law, and is left by all the constitutions equally liable to legislative alterations. I am not sure that any notice is particularly taken of it in the Constitutions of the States. If there is, nothing more is provided than a general declaration that it shall continue along with other branches of law to be in force till legally changed. What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from Great Britain a thousand heterogeneous & antirepublican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law. If they had undertaken a discrimination, they must have formed a digest of laws, instead of a Constitution.” James Madison to Geo Washington Oct 18, 1787
Teo Bear,
ReplyDeleteJames Madison, the father of the Constitution, said in clear terms that the convention did not adopt the English common law because, among other things, it contained “antirepublican doctrines.” There is little doubt that among those “antirepublican doctrines,” we would find a “natural born subject.” Indeed, being a “subject” was based on feudal relations to the land, while being a “citizen” was consent-based and grounded on republican principles.
Madison also said that the English common law would continue in effect in the states (not on the national level) until abrogated by the legislatures of the states. What this means is that when a state legislature passed a statute that conflicted with the English common law, that law was abrogated (repealed) by that statute. Of course, the same would apply on the national level, even if any English common law applied at that level, which we have seen did not. And when the First and Third Congress passed the Naturalization Acts of 1790 and 1795, respectively, those statutes also abrogated any vestiges of the English common law jus soli doctrine (being a “subject” based on one’s place of birth) as applicable anywhere in the United States, and replaced it with jus sanguinis citizenship (being a “citizen” based on the citizenship of one’s parents). A plain reading of these statutes, along with those of 1802 and 1855, shows that early Congress (which included many Founders and Framers) treated any child born in the United States to alien parents as alien born. See the James McClure citizenship case of 1811 (the James Madison Administration declared James McClure, who was born in South Carolina on April 21, 1785, under the Naturalization Act of 1802, a “Citizen of the United States” (not a “natural born Citizen”) after birth, not because he was born in the United States, but rather because his British father naturalized to become a U.S. citizen on February 20, 1786 and his son was then dwelling in the United States).
Obama, born in Hawaii (only an assumption for sake of argument), to a British father, would have been alien born in the eyes of the early Congresses under their naturalization acts, as well in the eyes of the British under The British Nationality Act of 1772. Under both the Nationality Act of 1790 (U.S. law) and British Nationality Act of 1772 (British statute which considered children born out of the King’s dominion to English “natural-born subjects” themselves English “natural-born subjects”), Obama, if born in the United States after the 1790 law went into effect, to Obama Sr., who was a British citizen, and Stanley Ann Dunham, who was a U.S. citizen, would have been a British “natural born subject.” Under no circumstance would the Founders and Framers have considered a child born in the United States to a British “natural born subject” father (remember that the wife took on the citizenship of her husband) an Article II “natural born Citizen” and eligible for the Presidency and of the command of the republic’s military. Obama became at best a “citizen of the United States” (not a “natural born Citizen,” which has never been amended) in 1961, under a liberal interpretation of the Fourteenth Amendment.
To pick up on Teo's inapplicability of ECL to the federal govt.
ReplyDeleteThe jurisidiction of federal courts is defined by the U.S. Const. art. VI, cl. 2. That written law does not grant to the federal judiciary the authority to incorporate other systems of laws of its own chosing, does not incorporate the common law of England, nor the law or constitution of the several states.
Jefferson letter to Edmund Randolph, August 18, 1799
"Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt."
Madison letter to Jefferson, Jan 18, 1800
Madison states that admitting the common law as legal federal law of the United States "would confer on the judicial department a discretion little short of a legislative power" since federal courts would "decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States" and thus would "erect them [judges] into legislators"
Instructions To Virginia Senators, January 11, 1800.
"The House proceeded to consider the instructions from the General Assembly of Virginia, to STEPHENS THOMPSON MASON and WILSON GARY NICHOLAS, senators from the state of Virginia, in the Congress of the United States. The instructions are as follows:
The General Assembly of the commonwealth of Virginia, though it entertains no doubt of your punctual performance of your duty, or of your faithful adherence to the great principles of constitutional law, and national policy, deems it incumbent on it to communicate its opinions, formed after the most mature deliberation, on certain subjects essentially connected, as it solemnly believes, with the dearest rights, and most important interests of the people.
...The General Assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle and tremendous in its consequences: That the common law of England is in force under the government of the United States.
...Deeply impressed with these opinions, the general assembly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts —
To oppose the passing of any law, founded on, or recognising the, principle lately advanced, 'that the common law of England is in force under the government of the United States,' excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; .... and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated."
To pick up on Teo's inapplicability of ECL to the federal govt.
ReplyDeleteThe jurisidiction of federal courts is defined by the U.S. Const. art. VI, cl. 2. That written law does not grant to the federal judiciary the authority to incorporate other systems of laws of its own chosing, does not incorporate the common law of England, nor the law or constitution of the several states.
Jefferson letter to Edmund Randolph, August 18, 1799
"Of all the doctrines which have ever been broached by the federal government, the novel one, of the common law being in force and cognizable as an existing law in their courts, is to me the most formidable. All their other assumptions of un-given powers have been in the detail. The bank law, the treaty doctrine, the sedition act, alien act, the undertaking to change the State laws of evidence in the State courts by certain parts of the stamp act, &c. &c. have been solitary, unconsequential, timid things, in comparison with the audacious, barefaced and sweeping pretension to a system of law for the United States, without the adoption of their legislature, and so infinitively beyond their power to adopt."
Madison letter to Jefferson, Jan 18, 1800
Madison states that admitting the common law as legal federal law of the United States "would confer on the judicial department a discretion little short of a legislative power" since federal courts would "decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States" and thus would "erect them [judges] into legislators"
Instructions To Virginia Senators, January 11, 1800.
"The House proceeded to consider the instructions from the General Assembly of Virginia, to STEPHENS THOMPSON MASON and WILSON GARY NICHOLAS, senators from the state of Virginia, in the Congress of the United States. The instructions are as follows:
The General Assembly of the commonwealth of Virginia, though it entertains no doubt of your punctual performance of your duty, or of your faithful adherence to the great principles of constitutional law, and national policy, deems it incumbent on it to communicate its opinions, formed after the most mature deliberation, on certain subjects essentially connected, as it solemnly believes, with the dearest rights, and most important interests of the people.
...The General Assembly of Virginia would consider themselves unfaithful to the trust reposed in them, were they to remain silent, whilst a doctrine has been publicly advanced, novel in its principle and tremendous in its consequences: That the common law of England is in force under the government of the United States.
...Deeply impressed with these opinions, the general assembly of Virginia instruct the senators, and request the representatives from this State, in Congress, to use their best efforts —
To oppose the passing of any law, founded on, or recognising the, principle lately advanced, 'that the common law of England is in force under the government of the United States,' excepting from such opposition such particular parts of the common law as may have a sanction from the Constitution, so far as they are necessarily comprehended in the technical phrases which express the powers delegated to the government; .... and excepting, also, such other parts thereof as may be adopted by Congress as necessary and proper for carrying into execution the powers expressly delegated."
There you have it - Our dearest rights and our most important interests are threatened by the audacious and sweeping pretension to a system of law for the United States, a system not adopted by the legislature, a system beyond judicial power to adopt, a system not delegated by the Constitution which would make judges into legislators since they would decide what parts of the common law would, and what would not, be properly applicable to the circumstances of the United States.
Mario wrote: Obama became at best a “citizen of the United States” (not a “natural born Citizen,” in 1961, under a liberal interpretation of the Fourteenth Amendment.
ReplyDeleteAnd how. Liberal could and should be replaced by "bastardized interpretation", since the Attorney General in 1898-99 chose to create an interpretation of the Wong opinion that went far beyond its limitation of applying the 14th Amendment solely to children born of domiciled foreign fathers, -not visitors.
He couldn't foresee a future in which a massive invasion of foreigners would inundate our nation to its detriment and financial injury, so he knew not just how significant his over-reaching would turn out to be.
The Wong opinion, by declaring children of all domiciled fathers as being U.S. citizens, also by extension thereby declared all domiciled fathers as being subject to the full jurisdiction of Washington, which is legally implied because children of married fathers are subject to authority solely through their fathers.
The consequence of that implication was that domiciled aliens, as members of American society, could be drafted to defend the nation that is their home, as well as the native land of their children. Previously, only citizens were under the responsibility to defend the nation.
Obama's father was not subject to U.S. jurisdiction which included the military draft. Thus Jr.'s citizenship was dependent on inheritance from his mother, but the laws that allow that only pertain to birth abroad. Thus there is no law by which Obama was born as a U.S. citizen, nor was he ever naturalized. His citizenship is nothing but presumed citizenship based on administrative policy handed down from the A.G. in 1898-99. Any court or A.G. could nullify it by simply basing their opinion on actual law and the limits of the Wong opinion. But no court could ever nullify natural citizenship since it is not dependent on nor derived from law.
In this time of calls for Immigration Reform, the question of Article II eligibility takes on a greater import.
ReplyDeleteThe flaw in Mr. Apuzzo's analysis, in the article and commentary, is his reliance on the 14th Amendment as defined by WKA. To the point, Mr. Apuzzo accepts the reasoning that 'domicile' determines 'jurisdiction.'
Now, in tax and probate law 'domicile' does indeed determine 'jurisdiction,' but NOT in NATIONALITY LAW; not from 1790 to 1855, and only from the WKA court did such a radical and liberal holding become 'law.'
The real question is did the 14th Amendment depart in any way from the 1866 Civil Rights Act? The language of the 1866 Act was clear giving citizen rights to children born of freed slaves: "born in the United States and not subject to any foreign power."
The jurisdiction/subjection to a foreign power only came from the nationality of the father.
So, did the 14th Amendment, proposed only months after passage of the 1866 Act, liberalize or change/expand the meaning of 'not subject to any foreign power' to 'born and domiciled in the United States?'
WKA's 'domicile' reasoning, expanding the original meaning and purpose of the 14th Amendment has become enculturated, i.e., idiomatic, that any child born in the Uhited States is a citizen at birth, regardless of the nationality of the resident or non-resident father, legitimate or illegitimate (Obama, Jr. was illegitimate).
'Natural Born Citizen' was not idiomatic, but a 'term of art.'
'Ignoratis Terminus Artis Ignoratur et Ars.'
In other words, a natural born citizen was, without doubt, a child of two U.S. citizens, i.e., born without alienage that required force of law (naturalization) to determine which nationality had jurisdiction.
In the case of 14th Amendment citizens, the father had no nationality so jus soli had to be introduced, logical proof that jus soli did NOT exist in the law from 1790 onwards.
Conversely, one might look at the Holder position that Civil Rights Voting Laws only apply to crimes of White People, and not the New Black Panther Party abuses in Philadelphia . . . or the ejection of Republican Poll Watchers in black districts.
The 14th Amendment only applied to stateless freed slaves having children on U.S. soil . . . it did not refer to the domicile of the father, but only that there was no alienage, i.e., foreign subjection.
Everyone,
ReplyDeleteFor the record I believe the founders used Vattel for the seeding of our national law and not English Common Law. The reason is simple, in 1783 the King of England gave the 13 colonies their independence and in doing so made them sovereign States. Earlier they formed a confederation in which each State relinquished a PORTION of their sovereignty to the Congress of the United States. In 1787 these sovereign States formed a "more perfect Union" and enacted the Constitution, and while they relinquished even more sovereign powers to the federal government they still remained sovereign retaining all other sovereign powers not delegated to the federal government. This Union was a union of smaller sovereign states united for a common cause, one of which was the self preservation of each state.
In the later part of the 17th century there were only two sets of legal treatises the framers could use to base the federal government on. The first treatise they could consider was English common law, but English common law was a system of laws on how a sovereign dealt with his subjects. The second treatise was the Law of Nations as complied by Vattel. The law of Nations differed greatly from English Common Law as the purpose of the Law of Nations was to guide the relations between sovereigns.
In a larger sense we the people are the sovereigns and the supreme court has written numerous opinions on this subject. Allegiance is owed to the sovereign it is said, and the Supreme Court has ruled that allegiance is owed to the People of the United States and not the government. After all it is government that derives its "just" powers from the consent of the governed.
Those who argue in favor of English Common Law either have no idea of the origins of this Nation due to a poor education, or intentionally want to make subjects out of sovereigns.
Mario Apuzzo wrote:
ReplyDelete"I can see from your latest volley of drivel that I have smacked you down nicely. You have reverted to your Obotic scorpion nature (which is stronger than you) and can no longer make reasoned and logical statements."
I'm sorry you feel that way, but perhaps I should be flattered at the implication that my earlier volleys were better. You still cling to Minor, but on my second point you had no counter.
How can you blame/credit Obama supporters for what the American Legal Community accepted decades ago? You state your disagreement with that consensus, and criticize me for placing importance on it, but you won't even address that what you say in your very first paragraph is ludicrous. There were no obots when Black's Law Dictionary started defining natural-born citizens as those born in the jurisdiction of a national government.
My "Obotic scorpion nature"? No, no; it's a recent thing, not my nature. The natural-born obots are less that a tenth my age.
paraleaglenm,
ReplyDeleteYou said:
"The flaw in Mr. Apuzzo's analysis, in the article and commentary, is his reliance on the 14th Amendment as defined by WKA. To the point, Mr. Apuzzo accepts the reasoning that 'domicile' determines 'jurisdiction.'”
I never said that I "accept" that the Fourteenth Amendment, as drafted and intended, was meant to accept domicile of the parents in place of the citizenship of the parents. Rather what I did was report on how the Benny and Wong Kim Ark decisions, to satisfy the "subject to the jurisdiction thereof" requirement of the amendment, used domicile of the parents in place of citizenship of the parents, and that they did so under a liberal interpretation of the Fourteenth Amendment.
It is from these Fourteenth Amendment cases (not Article II cases) that the courts created another class of born “citizen.” Prior to these cases, unless Congress had a statute applicable to the matter, the only born “citizen” was one exiting under national common law, with its origins in natural law and the law of nations, which provided that a child born in the country to parents who were its “citizens” at the time of the child’s birth was not only a born "citizen," but also an Article II "natural born Citizen." Minor v. Happersett (1875).
Both Benny and Wong Kim Ark created under the Fourteenth Amendment a new class of born “citizen” from certain children born in the United States. They held that a child born in the United States to domiciled and resident alien parents is also included as a born “citizen of the United States” by virtue of the Fourteenth Amendment. But while they held that such a child was a born “citizen” by the power of that amendment, they did not hold that that child was also a “natural born Citizen” under Article II.
Re: "You talk about the term natural born citizen as being carried over from the common law of England. You banter names like Blackstone and Coke, but what do you say when the man who is called the "father of our Constitution" wrote a letter to the man who is called the "father of our Nation" expressly denying that the common law of England was incorporated into the Constitution."
ReplyDeleteAnswer: The common law is not incorporated in the US Constitution. BUT it uses common law terms. Natural Born is one of them, like ex post facto and habeas corpus.
IF the writers of the US Constitution had meant to use such terms as habeas corpus an ex post fact and NATURAL BORN in a way other than it was used at the time, the common way, the common law way, they would HAVE TOLD US.
Instead we have the evidence of the writings of the members of the Constitutional Convention that they always used the term Natural Born the way that it was used in the common law. A search of their writings never shows a single example in which they use the term Natural Born to refer to parents---only to citizenship due to the place of birth.
And the examples of Tucker and Rawle, who were contemporaries of the writers of the Constitution, shows that they also believed that the term Natural Born came from the common law and referred to the place of birth.
More importantly, not only is there historical evidence that the meaning of Natural Born really does come from the common law, and there is no historical evidence that it was used by the writers of the US Constitution to refer to parents, but the US Supreme Court has RULED that that is where it came from and that the term Natural Born refers to EVERY child born in the USA except for the children of foreign diplomats.
You can dream and theorize all you want, but the US Supreme Court's ruling is the LAW. You don't like it? Too bad. It is not going to be changed unless the US Supreme Court reverses the ruling in the Wong Kim Ark case, which is not at all likely or unless a Constitutional Amendment is passed re-defining Natural Born Citizen, which is even less likely.
So Obama, who really was born in Hawaii (and the evidence is overwhelming) will remain president for the next four years. In the next presidential election, both Rubio and Jindal, who also were born in the USA and who are Natural Born Citizens despite the citizenship of their parents are the time, will be eligible to run.
Re: " they did not hold that that child was also a “natural born Citizen” under Article II. "
ReplyDeleteThat is what you say, but the words of the Wong Kim Ark case clearly say that EVERY child born in the USA is Natural Born. Every single one of them except for the children of foreign diplomats.
And ten state and federal courts have ruled that the Wong Kim Ark decision in fact said that the meaning of Natural Born Citizen defined in the Wong Kim Ark case applies under Article II.
And not one single court has said that the definition of Natural Born in the Wong Kim Ark case does not apply or that Minor v. Happersett applies.
smrstrauss @ January 29, 2013 at 4:06 PM
ReplyDeleteThe common law is not incorporated in the US Constitution. BUT it uses common law terms. Natural Born is one of them, like ex post facto and habeas corpus.
Answer:
"Natural born citizen" is a unitary phrase. Each word by itself is meaningless in the context of the sentence. Removing any constituent word renders the phrase meaningless in the context of the sentence. All constituent words of the phrase are required for its meaning.
"Natural born citizen" is a inherently distinctive phrase with a unique definition.
smrstrauss,
ReplyDeleteDo you really believe that you coming back here and painting with a conclusory brush is supposed to mean that you provided historical sources, cases from our U.S. Supreme Court, reason, and logic which all show that you are correct and myself and others here are wrong? You will have to do much better than just declare what you believe the law ought to be. Rather, you have to demonstrate with sound sources and argument what the law really is.
@smrstrauss
ReplyDelete"ex post facto" and "habeas corpus" are both unitary phrases. Each word by itself is meaningless in the context of the sentence. Removing any constituent word renders the phrase meaningless in the context of the sentence. All constituent words of the phrase are required for its meaning.
smrstrauss,
ReplyDeleteThe handful of lower courts of which you speak did not provide historical sources, cases from our U.S. Supreme Court, reason, and logic which support their opinion. Rather, they basically all cited to Wong Kim Ark and cited each other in one big circle. Well, as I have amply demonstrated, Wong Kim Ark’s holding is limited to the Fourteenth Amendment’s “citizen of the United States,” and does not involve Article II’s “natural born Citizen.” Actually, Wong Kim Ark confirmed Minor’s national common law definition of a “natural-born citizen.” Also, the U.S. Supreme Court has yet to give us its opinion on the Obama eligibility issue.
@ Mr. Mario Apuzzo
ReplyDeleteYes.
The reason I challenged your analysis was you were citing 'liberal' holdings in lower courts who relied on Wong Kim Ark.
Wong Kim Ark was not only in error in its reliance on ancient feudal law concerning 'domiciled' sojourners, but in violation of Article I of the constitution. The WKA court had no legitimate interest or jurisdiction over Ark's nationality; he was Chinese at birth, period.
Much to Mr. Strauss' chagrine, a child born in the United States to an alien father was, under almosts a century of U.S. law, the nationality of the father.
U.S. birth did not create a U.S. citizen. If it did, the 'born in the United States' element of the 14th Amendment would not have been necessary. The 1866 Civil Rights Act stated it in better language, to a father 'not subject to a foreign power.'
'Jurisdiction' in tax and probate law relies on Domicile. A legal alien resident with working papers has to pay local taxes. If an alien is permitted to own Real Estate, then the state probate court has jurisdiction over distribution of that property.
'Jurisdiction' in Naturlization Law relies on the nationality of the father; a separate consideration of the nationality of the mother was statutory in the 1920s/30s but under conditions of abandonment, illegitimacy, or sometimes latent nationality choice for the child when reaching the age of decison . . .
. . . but NOT PLACE OF BIRTH.
From 1790 to 1855, Place of Birth was not an element of the law except if born in a foreign country. Then, the U.S. parent was required to meet age and residency requirements.
All Strauss can show in the law is ancient laws from feudal Europe and the American colonies under Great Britain . . . and any foolish lower court without jurisdiction over the matter making the same mistake.
The WKA court was obligated by the constitution to follow existing legislated act, and Place of Birth was not statutory until congress revised under 8 U.S.C. 1401 to follow WKA's misinterpretation of the 14th Amendment.
More logical proofs? There was no such thing as Dual Nationality prior to Wong Kim Ark . . . it was unheard of. Wong Kim Ark created a Conflict of Law in making, retroactively, Ark a U.S. citizen at birth when he was already Chinese.
Wong Kim Ark violated Treaty, as well as the aformentioned 99-years of legislated Act.
Perkins vs Elg is a case supporting the fact that Elg was a natural born citizen by fact that when born in the United States, her father had naturalized. When she was returned to Norway as a minor, she lost her U.S. citizenship, but was eligible to regain it as an adult if she returned within a certain amount of time.
Rogers vs Bellei was similar, but he did not return to reside in the U.S. and lost his citizenship.
smrstrauss said ...
ReplyDelete"IF the writers of the US Constitution had meant to use such terms as habeas corpus an ex post fact and NATURAL BORN in a way other than it was used at the time, the common way, the common law way, they would HAVE TOLD US."
NATURAL BORN, as it was used at the time in the common way and the common law way, meant born under the ligeance of a SUBJECT.
NATURAL BORN was NEVER determined from PLACE of birth.
Can YOU SHOW were it was?
Paraleaglenm,
ReplyDeleteYou said: “The reason I challenged your analysis was you were citing 'liberal' holdings in lower courts who relied on Wong Kim Ark.”
I do not know what you are talking about. On the contrary, I might cite a “liberal” holding, which I might do for the purpose of presenting the complete historical and legal picture or even to distinguish that holding. But that does not mean that I agree with it. You have to be more careful when analyzing what I write which I know that you can do given that after making that statement, you then go on to restate in different words so many of my arguments that I have made in the courts and here over the years , showing that you agree with me on my position. So where do we differ?
@ smrstrauss.
ReplyDeleteFrom Wong Kim Ark case ....
"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."
NOTHING to do with PLACE, but EVERYTHING to do with the allegiance of a subject/citizen.
Quoting Lord Coke- Calvin's case (the benchmark 17th century English common law cited by the Wong Kim Ark court)....
"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
any PLACE within the king’s dominions without obedience can NEVER produce a natural subject.
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
in case of an alien there must of necessity be several kings, and several ligeances.
An alien born is of foreign birth or foreign allegiance
smrstrauss, can you show were in 17th century English common law, it was held that native-birth was sufficient to make a natural born subject?
@ smrstrauss
ReplyDeleteFrom Wong Kim Ark 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."
Wong was ruled by the SCOTUS to be a "citizen" and NOT "natural born", because he was a "person born or naturalized in the United States".
A "natural-born child of a citizen" is also a "citizen", by "operation of the same principle" per the 14th Amendment, i.e. born in the US to parents who were "subject to the jurisdiction thereof".
The "natural-born child of a citizen", is called a "natural born" because of the citizenship status of the child's parents.
So according to your reckoning, if the WKA court held that a "child of an alien, if born in the country" was a "natural born citizen", then THE SCOTUS WOULD HAVE SAID SO.
smrstrauss, @ January 29, 2013 at 4:06 PM,
ReplyDeleteI of III
You said: “The common law is not incorporated in the US Constitution. BUT it uses common law terms. Natural Born is one of them, like ex post facto and habeas corpus.”
(1) First, ex post facto and habeas corpus are not English common law terms. They have a history which goes much further back in time.
(2) Second, you know that the Founders and Framers did not adopt the English common law into the Constitution. You want to get around that little bit of history by distinguishing “adoption” of the English common law from “uses” the English common law. So you agree that the English common law was not “incorporated” into the Constitution. Still, you say that the Founders and Framers used the English common law to give meaning to terms that they inserted into the Constitution, which of course you include the “natural born citizen” clause. There are two major problems with your position.
(a) The first problem is that James Madison, the father of the Constitution, did not agree with you. Here is what Madison said about using the English common law to define terms in the Constitution. He clearly said that the Framers did not do it:
“Mr. MADISON. Mr. Chairman, permit me to make a few observations, which may place this part in a more favorable light than the gentleman placed it in yesterday. It may be proper to remark that the organization of the general government for the United States was, in all its parts, very difficult. There was a peculiar difficulty in that of the executive. Every thing incident to it must have participated in that difficulty. That mode which was judged most expedient was adopted, till experience should point out one more eligible. This part was also attended with difficulties. It claims the indulgence of a fair and liberal interpretation. I will not deny that, according to my view of the subject, a more accurate attention might place it in terms which would exclude some of the objections now made to it. But if We take a liberal construction, I think we shall find nothing dangerous or inadmissible in it. In compositions of this kind, it is difficult to avoid technical terms which have the same meaning. An attention to this may satisfy gentlemen that precision was not so easily obtained as may be imagined. I will illustrate this by one thing in the Constitution. There is a general power to provide courts to try felonies and piracies committed on the high seas. Piracy is a word which may be considered as a term of the law of nations. Felony is a word unknown to the law of nations, and is to be found in the British laws, and from thence adopted in the laws of these states. It was thought dishonorable to have recourse to that standard. A technical term of the law of nations is therefore used, that we should find ourselves authorized to introduce it into the laws of the United States. The first question which I shall consider is, whether the subjects of {532} its cognizance be proper subjects of a federal jurisdiction. The second will be, whether the provisions respecting it be consistent with safety and propriety, will answer the purposes intended, and suit local circumstances.”
James Madison, at the Virginia Constitutional Ratifying Convention http://constitution.org/rc/rat_va_17.htm
See also The Federalist No. 42 (James Madison explained that the English common law and statute law was a “dishonorable and illegitimate guide” to defining terms in the Constitution).
Continued . . .
II of III
ReplyDeleteHere is what we learn from Madison’s explanation:
1. Madison tells us of the difficulty the convention had with establishing the eligibility standards for the President.
2. Madison informs that there could be confusion regarding that eligibility given the terms used in that connection. Here he is probably referring to the confusion created by the clauses, “natural born citizen” and “natural born subject,” being so similar in appearance. But in how he addresses the meanings of piracies under the law of nations and felonies under the English common law and which meaning the framers selected, he tells us in no uncertain terms that the English common law meaning of a “natural born subject” was not selected and that rather the law of nations meaning of a “natural-born citizen” was.
3. Madison tell us, by referring to meaning of piracies and felonies, that under no circumstance is anything related to understanding the eligibility requirements for the President to be defined by the English common or statutory laws.
4. Madison states that British law was only to be adopted as part of the laws of the states, not as part of the laws of the federal government. Hence, how could the English common law have provided the national definition of a “natural born Citizen?” It could not.
5. He explains that the word “Piracy” was a word that existed in the law of nations and that “Felony” was a word that existed in the English common law and not to be found in the law of nations. Then he adds that it was considered “dishonorable and illegitimate” to resort to the English common law when defining a term used in the Constitution. He explains that the technical term of the law of nations was therefore chosen, and not a technical term of the English common law. Hence, how could the English common law have provided the definition for the technical term, “natural born Citizen?” It could not. Rather, following Madison’s logic, it would have been the law of nations that provided its meaning.
6. Madison clearly explains here that the law of nations was accepted as the law to define terms used in the Constitution, and not the English common law. Hence, it was the law of nations that provided the rules of decision for defining an Article II “natural born Citizen,” and not the English common law.
7. Madison talked to us in code about the meaning of a “natural born Citizen.” He spoke about how piracies and felonies were to be defined under the “law of nations” and not under the English common or statutory laws. His law of nations analogy was to be applied to the problem of defining a “natural born Citizen,” as that term was to be used and defined for presidential eligibility.
Continued . . .
III of III
ReplyDelete8. The law of nations became part of Article III “laws of the United States.” And so any term that was defined under the law of nations also became part of “the law of the United States.” And we know this to be true because the law of nations was accepted as national law and the supreme law of the land. Since the law of nations became national law with the force of supreme law of the land, the definition of a “natural born Citizen” that was based on that law became national law and supreme law of the land which can be changed only by constitutional amendment. To date, that law of nations definition has never been changed. This means that that same law of nations definition still prevails to day with that definition being a child born in the country to “citizen” parents. See Emer de Vattel, Section 212, The Law of Nations (London 1797) (1st ed. Neuchatel 1758) (defined what a “natural born Citizen” is. There Vattel said that the “natives, or natural-born citizens, are those born in the country, of parents who are citizens.” http://www.lonang.com/exlibris/vattel/vatt-119.htm. See also Minor and Wong Kim Ark (both define a “natural-born citizen” the same as Vattel or in other words under the law of nations standard and not the English common law one which is consistent with what Madison said here. Wong Kim Ark did use the English common law as an aid in defining a “citizen of the United States” under the later adopted Fourteenth Amendment).
(b) The second problem is that the unanimous U.S. Supreme Court in Minor v. Happersett (1875) does not agree with you. Minor defined a “natural-born citizen” under the common law with which the Framers were familiar when they adopted the Constitution. It said that child born in a country to parents who were its “citizens” at the time of the child’s birth was not only a “citizen” like the parents, but also a “natural-born citizen.” It added that “there have been doubts” whether a child “born in the jurisdiction” to alien parents was a “citizen.” These are expression of American common law (national law), which adopted jus sanguinis citizenship, not English common law, which used jus soli. Under the English common law, a child born in the King’s dominions to friendly alien parents who were neither foreign diplomats nor military invaders was a “natural born subject.” Hence, Minor could not have been expressing the jus soli rule of the English common law. And with respect to a “natural-born citizen” (not to be conflated with a Fourteenth Amendment “citizen of the United States’), Wong Kim Ark cited and quoted Minor and its definition of a “natural-born citizen,” not saying that there was anything wrong with that definition.
The comments by Lord Coke fail to get to the heart of the matter because he apparently was not conscious of what the core or fundamental issue was. The issue determining subjecthood was not ligeance or one's loyalty, -they were merely symptoms of something more fundamental, and that was *blood* and the inheritance it passes-on to the next generation.
ReplyDeleteThat inheritance is one of social and national responsibility to assist in the preservation of the society and nation. One born to a member of a society is bound by blood inheritance with the same responsibility as his father to defend his homeland. That obligation binds him to obedience to the powers that conduct the defense of the nation, that being the King and his subordinates.
One born to a foreigner is under no such obligation unless his father has taken up residence within the land and become a member of its society. Then domicile is a preeminent issue. Transient foreigners owe no loyalty to defend a nation not their own and a society of which they are not a part.
But via immigration, one joins that nation and is obligated to help defend it when it's threatened.
Until one understands the primary issues underlying citizenship and subjecthood, one is not grounded in the fundamental natural law principles that define them. It all goes back to natural groups and inherent responsibility to defend one's group. All group membership includes that responsibility as its primary obligation.
That was the reasonable and natural reason why women were not viewed as equal citizens as men. They were not obligated to shed their blood to defend their homeland. Without that primary citizenship responsibility, they also were not seen as responsible to determine the leadership of the society and nation via voting. If they were not created to fulfill the first responsibility, then they could be viewed as rightly excluded from the second, at least until after the war to end all wars.
By its text and legislative history, we learn that the Fourteenth Amendment neither amended nor repealed the “natural born Citizen” clause of Article II, Section 1, Clause 5, nor was it intended to do so. In U.S. v. Wong Kim Ark (1898), Justice Gray, with the aid of the colonial English common law, evolved a Fourteenth Amendment “citizen of the United States” at birth from an Article II “natural born Citizen.” But what he did does not mean that such evolved “citizen of the United States” is equivalent to a “natural born Citizen.” A tree evolves from an acorn, but is not an acorn. It also does not mean that he changed the definition of a “natural born Citizen,” which was confirmed in Minor v. Happersett (1875) and which Justice Gray acknoweledged and accepted in his decision. This reality amply demonstates how Ankeny v. Governor of Indiana, 916 N.E.2d 678, 688 (Ind.Ct.App. 2009), which assumes without demonstrating that the Fourteenth Amendment defines an Article II “natural born Citizen” and which held, by erroneously conflating an Article II “natural born Citizen” with a Fourteenth Amendment “citizen of the United States,” that “persons born within the borders of the United States are ‘natural born Citizens’ for Article II, Section 1 purposes, regardless of the citizenship of their parents,” is bad law.
ReplyDeleteIdiomatic Dissonance
ReplyDeleteThe presidential eligibility issue is tangled up in the current Immigration Reform issue.
Finally, Mark Levin opened his show yesterday with a lambasting of the concept (idiomatic dissonance) that any child born on U.S. soil is a citizen at birth.
About time, Mr. Constitutional Lawyer!
Bad judges and bad law schools make for bad law . . . but we, as citizens, through congress, can demand correction to bad and conflicting law.
The complexity of our idionmatic dissonance is perfectly exemplified in 'smrstrauss,' and his value as a stubborn sounding board makes his comments invaluable as well.
Conclusion: Minor v Happersett is the key; that the child of U.S. citizen parents has no alienage, and therefore, without doubt, eligible to the presidency.
In a birth to two citizens it is impossible for alienage to assert itself, and no law can introduce foreign subjection at birth except that of a feudal (i.e., Arab, or SMRSTRAUS) monarchy.
Why would we place someone in the highest elective office who has mixed allegiances? That was the concern of John Jay in his letter to G. Washington.
One judge, heavily cited by Obama supporters, said there are only two citizens: Born and Naturalized.
Unfortunately, Barack Hussein Obama was, under our current Aliens and Nationality Act, a citizen at birth . . . but that does not equal a citizen Born, for he admitted himself he had British citizenship at birth.
Alienage requires De-alienage, which is accomplished through . . . Naturalization Law.
Obama was not a citizen 'born,' but that of dealienage, i.e., removal of British jurisdiction.
Paraleaglenm,
ReplyDeleteI of II
I am afraid that if we attempt to distinguish “born citizen” from “citizen at birth,” we will get lost in the mix. To me, the two are the same. Yes, “[o]ne judge, heavily cited by Obama supporters, said there are only two citizens: Born and Naturalized.” But it is fallacious to conclude that all “born citizens,” assumed by the judge not to be “naturalized,” are “natural born Citizens.”
First, there are “born citizens” who are “naturalized” at birth. Both U.S. v. Wong Kim Ark and Rogers v. Bellei confirm this for persons made “citizens” by Congressional statute. Even Jill A. Pryor in her, The Natural-Born Citizen Clause and Presidential Eligibility: An Approach for Resolving Two Hundred Years of Uncertainty, 97 Yale L.J. 881 (1988), recognized these statutory “citizens” as “naturalized born citizen.” She advocates making these “naturalized born citizens” the equivalent to “natural born Citizens.” There she states: “Section II demonstrates that Congress' naturalization powers under the Constitution enable it to naturalize citizens from birth. Section III marshals textual and structural support for the alternative ‘naturalized born’ approach, which reads the clause to require that the presidential candidate be a citizen at the time of birth. Under that approach, Congress has the power to define which classes of people will be citizens upon birth, but it may not declare any person a ‘citizen at birth’ retroactively." Read the rest of her article at page 893, “The ‘Naturalized Born’ Approach,” which clearly explains that there does, indeed, exist naturalization “at birth” under our laws and that she proposes allowing the “naturalized at birth” to be considered “natural born Citizens” and therefore eligible to be President.
Continued . . .
II of II
ReplyDeleteSecond, all “natural born Citizens” and “citizens of the United States” are “citizens.” There is only one way to make a “natural born Citizen,” and that is that all required circumstances (birth in the country to citizen parents) occur at birth. There are two ways to make “citizens of the United States.” One is that all required circumstances (prescribed by the Fourteenth Amendment and/or Congressional Acts) occur at birth, which we have seen above naturalization statutes may be relied upon to deem those circumstances to have occurred at birth. Surely, anyone who is naturalized at birth to be a “born citizen” cannot be a “natural born Citizen.” There is a general notion that being declared a “citizen of the United States” at birth under the Fourteenth Amendment cannot be naturalization. I submit that in essence, it still is naturalization because the amendment removes alien-parent inherited alienage from a child born in the United States to one or two alien parents. But regardless of whether we accept that amendment’s born citizenship as being citizenship by naturalization or not, the person still has to satisfy the definition of a “natural born Citizen.” The other way to make a “citizen of the United States” is after birth, which is accomplished by Congressional Act naturalization. And also with these “citizens of the United States, becoming so after birth, we have always accepted that they are not “natural born Citizens” and not eligible to be President.
Hence, just being a “born citizen” under the Fourteenth Amendment or Congressional Act does not determine whether one is a “natural born Citizen.” We have seen that one can become a “born citizen” through statutory or amendment naturalization at birth. Even if we do not accept that Fourteenth Amendment “born citizens” may be naturalized by the amendment itself as such by naturalization at birth, they still have to satisfy the definition of a “natural born Citizen” which exists outside the amendment and which definition the amendment never repealed or amended. Under the Minor/Wong Kim Ark settled national common law definition of the clause, only a child born in a country to parents who were its “citizens” at the time of the child’s birth can be a “natural born Citizen.” All the rest of the “citizens” are “citizens of the United States, either at birth (under the Fourteenth Amendment or Congressional Act) or after birth (under a Congressional Act).
Most citizens, including congressmen (may I forward to you my letter from Rep. Thaddeus McCotter?) have the idiomatic dissonance view.
ReplyDeleteYou, MichaelIN, even MSRSTRAUSS have sophisticated and complex constructions with references and citations of law. I have extensive files since 2008, and I respect you and MichaelIN as having exceeded/augmented my own research.
However, you hit on it in your comment describing citizen born, citizen at birth, or naturalized at birth, viz. Pryor.
The distillation to pure essence of this issue is . . . Alienage--Requiring De-Alieanage vs. Natural Born, i.e., requiring no De-Alienage. That is the true value of Minor vs Happersett.
The stateless freed slaves benefitting from the 1866 Act and the 14th Amendment had no alienage, but existing law provided no rights of jus soli. The 14th resorted to 'born in the U.S.' only because jus sanguinis was denied by slavery/chattel.
One might argue that Marco Rubio, his father being a 'gusano,' had no Cuban jurisdiction save their death penalty, so stateless . . . therefore Rubio was a rare 14th Amendment natural born citizen. In comparison, Bobbie Jindal is not a natural born citizen.
To be a NBS of England, it was ESSENTIAL and REQUIRED in all cases that one had to be "born under the ligeance of a subject".
ReplyDeleteThis was the FIRST required quality, without which, a child could NOT be a NBS, whether native-born or born off-shore.
It was the ONLY requirement to make a NBS, in the case of high allegiance subject parents, where it made no difference where the child was born.
Native birth was only an ADDED requirement in the case of alien parents with only local allegiance i.e. lesser allegiance than a high allegiance subject.
The English only required this native-birth in the case of a friendly alien father, so as to ensure a bit more loyalty for the child, due to the weak and uncertain allegiance of the father.
The Framers simply combined both citizen parents with native-birth as the formula for a "natural born Citizen".
Especially in light of the fact that the US "natural born Citizen" was an eligibility criteria for highest office of the republic, but the English "natural born subject" was merely eligibility to a community and nothing to do with high office or a republic.
The Framers DID NOT ADOPT the English method of automated subject-hood of friendly alien visitors.
I think the Framers clearly understood the English common law principle that to be a natural born subject of England, one had to be FIRST and FOREMOST born under the allegiance of a subject, and therefore to be a "natural born Citizen" of US, one had to be born under the allegiance of a US citizen.
This makes perfect sense given the popularity and profound influence of Vattel's Law of Nations on the Founding Fathers and Framers
The US native-birth requirement was added, by the Framers, to the high allegiance citizen parents requirement, as an additional security measure.
The Framers didn't change what essentially made a "natural born #######", they simply made the eligibility for this status more stringent, considering it was an eligibility for high office with national security responsibilities.
Strauss,
ReplyDeleteCan you tell us where Justice Gray declared Wong to be a NBC? We can wait ...... until hell freezes over I guess, because it is not there.
Also can you enlighten us poor bumpkins here as to their intent of the NBC clause? We would appreciate you being specific citing both author and reason.
Paraleaglenm,
ReplyDeleteI of II
With the passage of time and with ancestral ties to the mother countries thereby forgotten or lost, a black slave no longer had any alienage. But even if slaves had no alienage, they were still slaves (property) with no “citizen” parents. Hence, at common law and under Dred Scott v. Sandford, 60 U.S. (19 How.) 393(1856), they could be neither “citizens” nor “natural born Citizens.”
President Abraham Lincoln signed his Emancipation Proclamation executive order on January 1, 1863, which was during the Civil War. It freed persons who were enslaved in rebellious Confederate territory, but did not free many other slaves. Lincoln wanted to free all the slaves in all the United States. He pushed for the Thirteenth Amendment, which outlawed slavery and involuntary servitude, except as punishment for crime, in the United States and any place subject to its jurisdiction. Congress passed it in February 1865 and the states ratified it on December 6, 1985. But neither the proclamation nor the Thirteenth Amendment explicitly gave ex-slaves (freedmen) citizenship.
Congress passed the Civil Rights Act of 1866 to, among other things, explicitly give freed slaves the right to U.S. citizenship which they could not gain under common law. Congress made sure that freed slaves could satisfy its requirements which were born in the United States while “not subject to any foreign power.”
Continued . . .
II of II
ReplyDeleteUnited States v. Rhodes, 27 F.Cass. 785 (1866), said that “the emancipation of a native born slave by removing the disability of slavery made him a citizen.” Id. at 789. Rhodes held that it was not bound by Dred Scott because the “central and controlling fact” which there worked to deny Scott citizenship was that “Scott was a slave.” In Rhodes, the court decided whether a freed black (Nancy Talbot) was a “citizen of the United States,” which entitled her to the “civil rights” of the Civil Rights Act of 1866, one of which was whether she could testify in a criminal trial against the defendants who had allegedly committed crimes against her. Given that the slaves had been emancipated and with it the disability of slavery had been removed, the court said that they did not need the Civil Rights Act to grant freed blacks citizenship. Still, to remove any doubts, it said that Congress passed the Act. Rhodes then analyzed whether Congress had the constitutional “power to makes colored persons citizens.” Id. at 790. It found that the “appropriate legislation” clause of Section 2 of the Thirteenth Amendment (similar to the necessary and proper clause of Article I, Section 8, Clause 18) gave Congress such power. Rhodes held that while Congress had the power to exclude people of color from being naturalized, under the Constitution color was not relevant to citizenship and that Nancy Talbot, a freed black, was a “citizen of the United States” under that Act. Indeed, with the passage of time, a freed slave was “not subject to any foreign power” and Rhodes ruled that Nancy Talbot, born in the United States “in the allegiance of the United States” was a “citizen of the United States” under that Act. The court did give one caveat, i.e., that the Act only granted “civil rights.” It did not answer the question of whether Congress through the act could also give free blacks “political rights.” Id. at 794. So, being a “citizen of the United States” under the act gave blacks “civil rights,” but it did not necessarily grant them “political rights.” In this connection, we know that under Article II, Section 1, Clause 5, a “natural born Citizen,” who is also at least 35 years old and a 14-year resident of the United States, has the political right to be eligible to be President. Hence, Rhodes actually told us that there was a critical constitutional distinction between “citizen of the United States” and a “natural born Citizen.”
But what Rhodes said about free blacks could not be said for the children born in the United States to white European or Chinese parents. Being born “subject to a foreign power,” they were not born “in the allegiance of the United States.” Benny v. O'Brien, 58 N.J. Law, 29 Vroom 36, 39, 40 (1895) (white European parents) and U.S. v. Wong Kim Ark, 169 U.S. 649 (1898) (Chinese parents) resolved the citizenship problem for these U.S.-born children. Both these cases established that the U.S.-born children of domiciled alien parents were born “citizens of the United States,” by virtue of the Fourteenth Amendment, but they did not rule that they were “natural born Citizens” by virtue of Article II.
@ smrstrauss.
ReplyDeleteHow long does one have to wait for you to show where in 17th century English common law it was held that native-birth was all that was nevessary to make a "natural born subject"?
You reckon Blackstone found where ECL held that native-birth was all that was required for NBS; can you show me where Blackstone found it?
Waiting ........
I can explain how we get NBS from the WKA case, with three quotes from the majority opinion, all of which are themselves cited to previous source:
ReplyDelete"The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."
"The term 'citizen,' as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has entirely resulted from the change of government."
"'Natural-born British subject' means a British subject who has become a British subject at the moment of his birth.'"
I know that you, Mr. Apuzzo, are not a fan of the WKA opinion. When Administrative Law Judge Masin asked you about something it said on common law, you replied, "With all due respect to the United States Supreme Court, and to Justice Grey, there's no support for what he says." Were it mere dicta or had Judge Masin misinterpreted it, those would be issues, but a critique of Grey's support or lack thereof doesn't work. It's a U.S. Supreme Court decision and it has not been overturned.
MichaelN asked:
ReplyDelete"How long does one have to wait for you to show where in 17th century English common law it was held that native-birth was all that was nevessary to make a 'natural born subject'?"
Why wait for what you must have seen already? MichaelN, you yourself cited Lord Coke on Calvin's case, multiple times. Here's where your favorite citation flat-out refutes you:
"for he owed to the King a local obedience, that is, so long as he was within the King’s protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject"
I wrote:
ReplyDelete"I can explain how we get NBS from the WKA case."
Oops. Fumble. "NBC", of course.
UNK,
ReplyDeleteOne interesting thing about Judge Masin was when he asked Obama's lawyer about submitting a sealed copy of the LFBC to the court in Illinois. There was something interesting about that. This story only appeared on Doc Conspiracy's website. Wonder what the 'Masin raisin was reading to develop his legal thesis.
UNK,
ReplyDeleteThis is the decission of WKA --
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.
Now here is the question stated --
The question presented by the record is whether a child born in the United States, of parents 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 by virtue of the first clause of the Fourteenth Amendment of the Constitution,
The court found WKA to be a "citizen of the United States" under the 14th Amendment and not a NBC. Read it and make a silk purse from a sows ear.
@ Mr. Appuzo -- Thank you. Rhodes (1866) is an interesting case. One can make the distinction whether the Emancipation Declaration or the 13th Amendment made the freed slaves citizens, or neither. Rhodes held that they were citizens, but the court stipulated that Congress had that power, so the Civil Rights Act protected children of freed slaves.
ReplyDeleteFrederick Douglass is a good test case, as he had both citizenship and political rights. That doesn't answer precisely the citizenship status of the freed slaves, except the law abhors a stateless condition.
Marco Rubio's father is another quandry . . . did the death penalty relieve him of Cuban citizenship? He was automatically granted a visa . . . Rubio was born to an ex-Cuban, but not yet a citizen, the paperwork in process.
Unknown @ January 31, 2013 at 8:07AM,
ReplyDeleteI of III
You try to constitutionally legitimize Barack Obama by relying on U.S. v. Wong Kim Ark (1898). You put all your eggs that basket. But unfortunately for you and Mr. Obama, the eggs are in the wrong basket.
(1) You provide these three quotes as your proof that Wong Kim Ark held Wong to be not only a Fourteenth Amendment “citizen of the United States,” but also an Article II “natural born Citizen.”
"The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history."
"The term 'citizen,' as understood in our law, is precisely analogous to the term 'subject' in the common law, and the change of phrase has entirely resulted from the change of government."
"'Natural-born British subject' means a British subject who has become a British subject at the moment of his birth.'"
(a) As to the first quote, first, “the language of the English common law” did not contain the clause “natural born Citizen.” The Founders and Framers were very meticulous in the words that they chose for the Constitution and meaning must be given to the specific words that they chose, and the more so when those words a words of art or idioms which is the case with the “natural born Citizen” clause. Marbury v. Madison, 5 U.S. 137 (1803).
Second, reading something “in the light of its [the English common law] history” does not equate to giving meaning to a term the same that the English common law gave to that term. It is important to understand that certain terms under English common law had one meaning and as those terms were used in America, those same words took on a different meaning. Noah Webster, in 1828, explained that an American dictionary of the English language was necessary because American words took on different meanings than the same words in England.
Third, now as you know, because Obama eligibility supporters cite and quote the decision and Wong Kim Ark itself relied upon it, Justice Noah H. Swayne in United States v. Rhodes, 27 F. Cas. 785 (Cir. Ct. Ky 1866), when deciding whether Nancy Talbot, a freed slave, was a “citizen of the United States” under the common law and under the Civil Rights Act of 1866, had occasion to tell us what the English common law said about defining a “citizen” and a “natural born Citizen.” This is what Justice Swayne said regarding any notion that the English common law defined a “citizen” or a “natural born Citizen:”
“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 Justice Swayne did not believe that the English common law defined either a “citizen” or a “natural born citizen.” He did not tell us that we derived the definition of a “citizen” or a “natural born Citizen” from the English common law. Remember also that Justice Swayne was part of the unanimous U.S. Supreme Court in Minor v. Happersett (1875), which confirmed that under our common law (American national law) with which the Framers were familiar when they drafted the Constitution, a child born in a country to parents who were its “citizens” at the time of the child’s birth was not only a “citizen” like his or her parents, but also a “natural-born citizen.”
Continued . . .
II of III
ReplyDelete(b) As to the second quote, that a “citizen” is analogous to a “subject” is common knowledge and only states a truism. But the truism does not provide any definition of a “citizen.” See Justice Swayne above (explained that the English common law defined neither a “citizen” nor a “natural born citizen.”
(c) As to the third quote, "'[n]atural-born British subject' means a British subject who has become a British subject at the moment of his birth,'" by this quote, you attempt to convince us that because a “natural born subject” became a “subject” “at the moment of birth,” and a “natural born citizen” also becomes a “citizen” “at the moment of birth,” then a “natural born citizen” has the same meaning as a “natural born subject.” Here is what your argument looks like logically:
Premise 1: “Natural born subjects” become so at the moment of birth
Premise 2: Natural born citizens” become so at the moment of birth.
Conclusion: A “natural born citizen” is a “natural born subject.”
This argument suffers from fallacy in that it violates the rule of the undistributed middle. The premises are both true, but the conclusion is false. We should see intuitively that the conclusion does not follow from the two premises. Here is an example which can make the point easy for you to understand:
Premise 1: All dogs have a heart.
Premise 2: All cats have a heart.
Conclusion: Therefore all cats are dogs.
Again, both premises are true, but the conclusion is false. Hearts are not defined such that all hearts belong (distributed) to dogs. If they did, then cats would be dogs. But that is not the case. Your argument suffers from this same error and is logically invalid. In the first premise, we are not told of the means by which one becomes a “subject” “at the moment of birth.” In other words, no definition is provided which explains under what circumstances one becomes a “subject” “at the moment of birth.” Nevertheless, given that we can study English common law and glean from it what those circumstances were, we can advance in our argument. Minor v. Happersett (1875) reveals that the Founders and Framers, given that they adopted the law of nations which they incorporated into national common law, had a different means or definition from those adopted by the English common law by which that birth status was inherited at birth. Hence, under that national common law, other means existed for producing a person with a status of being a “citizen” “at the moment of birth.” What must guide our understanding of a “natural born citizen” is what definition (means) the Founders and Framers used and which they commanded be satisfied before one could be given the status of a “citizen” “at the moment of birth.” We therefore cannot logically conclude that a “natural born citizen” has the same definition as a “natural born subject,” simply because both take on their status as a result of someone becoming a “subject”/”citizen” “at the moment of birth.” If the means by which one acquires that status is different for each clause, which it is, the two clauses do not and cannot mean the same thing.
Continued . . .
III of III
ReplyDelete(2) You attempt to paint me as not being a “fan of the WKA opinion.” You do that in your attempt to make it look like Wong Kim Ark is the current law which shows that Barack Obama is an Article II “natural born Citizen” and that I am just looking to change the law. There are several problems with your straw man argument.
(a) I disagree with Wong Kim Ark when it said that the English common law jus soli rule of citizenship continued to apply in the United States after the revolution. Justice Gray does not provide sufficient historical support for his statement. Chief Justice Fuller in his dissent demonstrates how Justice Gray was wrong in making such a statement. Additionally, being stated in state constitutions and statutes, it was common knowledge that the English common law continued to have application in the respective states until abrogated by the states’ legislatures. By simple logic, the same would have applied to any degree that any English common law would have hypothetically continued to have effect on the national level (which it did not in any event). Any English common law rule notwithstanding, the Naturalization Act of 1790 abrogated in the United States any jus soli rule under the “jura coronae” or English common law in the United States. In fact, as I have been arguing for quite some time in the courts and on this blog, the Naturalization Acts of 1790, 1795, 1802, and 1855, all in effect at one time or another before Wong Kim Ark was decided in 1898, all treated children born in the United States to alien parents as aliens themselves. These acts show that our early Congresses, many of which were Founders and Framers, since 1790 and up to the time Wong Kim Ark was decided in 1898, adopted jus sanguinis citizenship and not jus soli citizenship. Justice Gray in Wong Kim Ark did not even address what the early Congresses and these Founders and Framers declared for U.S. citizenship in the United States.
(b) That I do not agree with Justice Gray’s statement that English common law continued to provide the rules of decision for U.S. citizenship after the American Revolution, does not mean that I reject the decision he reached. Again, as I repeatedly argued, the text and the legislative history of the Fourteenth Amendment show that its framers neither repealed nor amended the “natural born Citizen” clause of Article II. Hence, Justice Gray, distinguishing a child born in the United States to alien parents from a “natural born [citizen]” child born in the United States to “citizen” parents, used the English common law only as an aid to find that Wong was “at the time of his birth a citizen of the United States by virtue of the first clause of the Fourteenth Amendment of the Constitution.” He did not hold that Wong was “at the time of his birth a natural born citizen by virtue of” the national common law (not the English common law) which both Minor and Wong Kim Ark agreed applied in defining that specific clause. So, while Wong Kim Ark held Wong to be a Fourteenth Amendment “citizen of the United States,” it did not hold that he was also an Article II “natural born Citizen.” I therefore have never advocated that Wong Kim Ark be overruled, for there simply is no reason to in connection with defining an Article II “natural born Citizen.” As to how the decision interprets or is said to interpret the Fourteenth Amendment, that is a different issue.
To All:
ReplyDeleteFor those who've not been around the various Obot sites - or are not familiar with their convolutions, let me point out that the poster "smrstrass" was "outed" a couple of years ago as actually being a man and/or wife (and possibly even other individuals) living in a particular named locale.
As I recall that "poster" was one of the paid-for hired guns whose charge was to disrupt sites such as that of attorney Puzzo since they were "too factual and close to the truth".
Anything in the form of misinformation/disinformation was fair (in their eyes) so long as it worked to create havoc. The site outing the "persona" was Jefferson's Rebels postings by Erica who did some stellar detective work on the fraud - you have to dig back in time ...
http://www.jeffersonsrebels.blogspot.com/
Unknown said ....
ReplyDeleteMichaelN said ..."Why wait for what you must have seen already?"
"MichaelN, you yourself cited Lord Coke on Calvin's case, multiple times. Here's where your favorite citation flat-out refutes you:"
"for he owed to the King a local obedience, that is, so long as he was within the King’s protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject"
You delude yourself.
Show where and how does this say that native-birth is sufficient to make a NBS?
Show ANYWHERE in the ECL that native-birth sufficed to make a NBS.
You can't, because NOWHERE did the ECL hold that native-birth sufficed.
In fact the ECL clearly held, with Lord Coke emphasizing on numerous occasions, that the place i.e. jus soli did not make a natural born subject.
Here (Lord Coke)....
"any place within the king’s dominions without obedience can never produce a natural subject"
All that piece says is that so long as a friendly alien is within the kings realm, he is a subject and because he is a subject, his native-born child is a natural born subject.
Here's the rest of what it says....
Sherley a Frenchman, being in amity with the King, came into England, and joyned with divers subjects of this realm in treason against the Kingand Queen, and the indictment concluded contra ligeant’ suae debitum;51 for he owed to the King a local obedience, that is, so long as he was within the King’s protection: which local obedience, being but momentary and incertain, is strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject: a fortiori52 he that is born under the natural and absolute ligeance of the King (which as it hath been said, is alta ligeantia) as the plaintiff in the case in question was, ought to be a natural born subject; for localis ligeantia est ligeantia infima et minima, et maxime incerta.53 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:"
Did you notice how the indictment of the Frenchman was for treason?
That was because the Frenchman was a "subject".
This is in complete agreement with what I have been observing and saying about what Calvin's case and the ECL held.
That is, that native-birth did not and could not produce a natural born subject, and that a native-born child in the English realm had to be born to a subject to be a natural born subject, other wise the child was alien-born.
Epic fail for you.
Try again.
Mario
ReplyDeleteHave you considered violating one of the laws signed by Obama, like Obamacare, so you yourself could have standing in court to challenge his eligibility?
Mario Apuzzo, Esq. said...
ReplyDeleteII of III
(b) As to the second quote, that a “citizen” is analogous to a “subject” is common knowledge and only states a truism. But the truism does not provide any definition of a “citizen.” See Justice Swayne above (explained that the English common law defined neither a “citizen” nor a “natural born citizen.”
---------------------------
If "citizen" and "subject" were analogous, and given that in 17th century ECL, a child had by necessity to be "born under the ligeance of a subject" to be a natural born subject, then for a child to be a US natural born citizen, that child would by necessity, also have to be born under the ligeance of a citizen/subject.
epthydyihttp://jeffersonsrebels.blogspot.com.au/2010/03/smrstrauss-total-reveal-their-tangled.html
ReplyDelete@ smrstrauss
ReplyDeletewaiting..........
MichaelN:
ReplyDeleteYou just might have "crickets" for a while 'till one of them thinks up a rejoinder (or repeats a prior one) since there are a lot of them (non-factual rejoinders) around on different sites.
Good work Michael. UNK should read Coke instead of snorting it.
ReplyDeleteUnknown @ January 31, 2013 at 9:07AM,
ReplyDeleteI of II
We know from Emer de Vattel and other natural law writers, other historical sources, early Congressional naturalization acts, and several U.S. Supreme Court cases, including Minor v. Happersett (1875), and some lower court cases, that the Founders and Framers adopted the natural law/law of nations/U.S. common law rule that a “natural born citizen” is a child born in a country to parents who were its “citizens” at the time of the child’s birth, and that this rule has never been changed by either constitutional amendment or by the U.S. Supreme Court. The American citizenship experience supports this conclusion.
Still, some like you, with misplaced reliance upon U.S. v. Wong Kim Ark (1898), disagree and argue that the Founders and Framers used the English common law to define an Article II “natural born Citizen.” You argue that the Founders and Framers defined a “natural born Citizen” the same as the English and colonist defined an English “natural born subject.” To support your argument, you maintain that a U.S. “citizen” was analogous to a British “subject” and that therefore the Founders and Framers gave to a “natural born citizen” the same meaning that the English and colonist gave to a “natural born subject.” From that you conclude that any child who is born in the United States, regardless of the citizenship of the parents (i.e., even alien parents), provided the parents are not foreign diplomats or military invaders, is a “natural born Citizen,” just like any child who was born in the King’s dominion to alien parents, who were neither foreign diplomats or military invaders, was an English “natural born subject.”
This argument that a U.S. “citizen” and by extension a “natural born citizen” are analogous to a English “subject” and “natural born subject” to prove that the meaning of a “natural born citizen” comes from an English “natural born subject” finds no support in the American citizenship experience and therefore has not merit. There were and still are fundamental differences between a U.S. “citizen” and an English “subject.” I have already discussed these differences on this blog. But one of the most important differences that directly pertains to defining a “natural born citizen” is that under English common law, virtually any friendly alien, who was not a foreign diplomat, located within the King’s dominion was made into a “subject,” and was compelled, even without swearing off his or her foreign allegiance and swearing allegiance to the King, to owe allegiance and obedience to the King while located within his dominions. Such an alien could even be tried and executed for treason. Hence, a child born in the King’s dominion to friendly alien parents, who were converted to “subjects,” who owed the King allegiance and obedience by the only fact of being present on his territory, was a “natural born subject.” Superficially, the end result made sense given that the child was born in the King’s dominion to “subject” parents who owed the King allegiance and obedience. So the English rule arrived at the same result as that under the natural law/law of nations rule except it arrived at the end result by different means. The English rule, based on feudal considerations, simply automatically converted all friendly aliens into allegiance and obedience owing “subjects” and then declared that children born to them in the King’s dominion were for birth to death “born in the allegiance of the King” (Justice Swayne in Rhodes) and therefore “natural born subjects.” Vattel in Section 214 of The Law of Nations called this process “naturalisation” of a child born in the King’s dominion to parents who were foreigners. (“Finally, there are states, as, for instance, England, where the single circumstance of being born in the country naturalises the children of a foreigner.”)
Continued . . .
II of II
ReplyDeleteBut the law of nations rule was based on parents giving consent to being in allegiance and therefore citizens of the nation in which they may be found and by extension their born and yet-to-be born children too, which allegiance and citizenship could be cast off by the right to expatriation. So we can see that the two laws had a different means by which they arrived the end of producing a “natural born citizen”/”natural born subject.” Given that the United States adopted the law of nations rule, the citizenship experience in the United States was different from what it was in England and what it had been in the colonies. No alien located within the United States, even if friendly, was automatically considered a “citizen.” Those persons, while being expected to obey the laws of the United States while being physically present in its territory, were not expected to and in fact did not owe the United States their allegiance. Rather, aliens had to go through a formal process called naturalization, during which they consensually swore off foreign allegiance and swore allegiance only to the United States, to become a “citizen.” Hence, a child born in the United States to alien parents (aliens and not “citizens”) was not a “natural born citizen.” That is why under the early naturalization acts, parents had to naturalize as U.S. “citizens” in order for their yet to be born child to be born in the United States as a “natural born citizen,” or their already alien born minor child to become a U.S. “citizen” during his or her years of minority. And finally, in the United States, “natural born citizens” had the natural right to cast off their allegiance and citizenship when reaching the age of majority. Hence, they were not compelled to be “natural born citizens” from birth to death like the English compelled their “natural born subjects” to be.
It is these fundamental differences between the American “natural born citizen” (characterized by consent to allegiance and citizenship which was not indelible) and the English “natural born subject” (characterized by imposed allegiance and subjecthood which was indelible) that clearly demonstrate that the Founders and Framers did not equate the meaning of a “natural born Citizen” to that of an English “natural born subject.”
Gee Linda's flu is long lasting.
ReplyDeleteLinda, come out and face the truth.
Mario,
ReplyDeleteHow can the United States Court of Appeals for the District of Columbia Circuit, who ruled against a Petitioner who challenged the eligibility of the De Facto President; rule in favor of another Petitioner who challenged the Constitutionally of the De Facto President’s recess appointments, when in their opinion they used nearly all of the precedents the first Petitioner presented to the Court?
Their Opinion can be read here:
http://www.cadc.uscourts.gov/internet/opinions.nsf/D13E4C2A7B33B57A85257AFE00556B29/$file/12-1115-1417096.pdf
I of II
ReplyDeleteIn WKA
The term "citizen" as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people - and he who before was a "subject of the king" is now "a citizen of the State."
the US Supreme Court is citing State v. Manuel, an 1838 case before the North Carolina Supreme Court.
The following is the first portion of the paragraph containing the cited sentence:
It has been said that before our Revolution, free persons of colour did not exercise the right of voting for members of the colonial legislature. How this may hvae been, it would be difficult at this time to ascertain. It is certain however that very few, if any, could have claimed the right of suffrage, for a reason of a very different character than the one supposed. The principle of freehold suffrage seems to have been brought over from England with the first colonists, and to have been preserved almost invariably in the colony ever afterwards. In the act of 1743, ch. 1, (Swan's Revisal, 171,) it will be seen that a freehold of fifty acres was necessary to entitle the inhabitant of a county to vote, and by the act of 2d Sept. of 1746, ch. 1, Ibid. 223, the freeholders only of the respective towns of Edenton, Bath, Newbern and Wilmington were declared entitled to vote for members of the Colonial Legislature. The very Congress which framed our constitution, was chosen by freeholders. That constitution extended the elective franchise to every freeman who had arrived at the age of 21, and paid a public tax; and it is a matter of universal notoriety that under it, free persons without regard to colour, claimed and exercised the franchise until it was taken from free men of colour a few years since by our amended constitution. But surely the possession of political power is not essential to constitute a citizen.
II of II
ReplyDeleteIf it be, then women, minors, and persons who have not paid public taxes are not citizens - and free white men who have paid public taxes and arrived at full age, but hove not a freehold of fifty acres, inasmuch as they may vote for one branch and cannot vote for the other branch of our legislature, would be in an intermediate state, a sort of hybrids between citizens and not-citizens. The term "citizen" as understood in our law, is precisely analogous to the term subject in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people - and he who before was a "subject of the king" is now "a citizen of the State." Considering therefore the defendant as having a right to the protection of the clauses in the constitution and declaration of rights on which he relies, we proceed to the examination of the alleged repugnancy between these and the act of 1831. The 39th section of the constitution is in these words: "The person of a debtor, where there is not a strong presumption of fraud, shall not be continued in prison after delivering up bona fide all his estate, real and personal for the use of his creditors in such manner as shall be hereafter regulated by law." ....
It is quite clear that Judge Gaston's references to "our law" and "our constitution" are references to the statutes and Constitution of North Carolina. As North Carolina has a reception statute the cited sentence is true in North Carolina. The same can not be said for the federal government which does not incorporate common law via Constitution, reception statute, or other method. The founding principle of the federal government is "the law of nature and nature's god", as such it differs from the states. The cited sentence is inapplicable to the federal government.
I have no doubt the son of a foreign citizen is not a natural born citizen and i am not happy Congress and our courts are not enforcing the NBC clause. The inauguration and court cases are just a big charade and the people in charge of verifying his eligibility are a joke. The Founders risked their lives for the new country and yet the cowards/ corrupt politicians now in charge will not even speak out against this disaster. We do not even know if he is a "citizen of the United states" but we do know he is not a "natural born citizen" with a foreign father. To all the lying obots, wka was ruled a "citizen of the US" which of course made him ineligble under article 2 to be CiC. Thanks mario for the history lesson, accuracy and remarkable restraint dealing with lying leftists.
ReplyDeleteMichaelN wrote:
ReplyDeleteThe Framers simply combined both citizen parents with native-birth as the formula for a "natural born Citizen".
That sounds reasonable and wise of them, but in fact that claim is pure nonsense since it's based on nothing at all. There is no "formula" and never was one. No principle, no logic, no pattern of natural law since in the realm of natural law there is no significance or imperative connected to the place of delivery from the womb. The only connection is to two parents. Were they both alike, same society, same nationality, or was their union a cross-breed hybrid of two or more inherited nationalities?
Is the child a natural American or a legal American? No legal American is eligible to be President because no legal American is a natural American, just as no natural American is a legal American.
One is formed in the legal realm and the other is formed in the natural realm. They are fundamentally different in origin. No natural American can point to anything in U.S. law or jurisprudence which provides him citizenship, but legal Americans can or else they would not be citizens.
Natural citizens are the natural family members of the nation. All others are members via legal adoption. They are not natural members. They are legal members, and as such are not eligible to be master of the home, or President of the nation.
"Especially in light of the fact that the US "natural born Citizen" was an eligibility criteria for highest office of the republic, but the English "natural born subject" was merely eligibility to a community and nothing to do with high office or a republic."
That, in fact, is not true. Alien born subjects and natural born subjects were equal in all respects, but if you'll come over here in the corner I'll whisper a secret in your ear that isn't known by the people....there's a few unknown and invisible positions of critical national security, involving national secrets and military intelligence and planning and command, which are only to be filled by natural born subjects. The children of aliens cannot be allowed to fill those few critical positions because the fate of the nation depends upon them.
In America it's the same. No son of an alien can guard, maintain, control and launch American nuclear bombs. All personnel must be natural born Americans, -NOT hyphenated hybrid Americans. Same thing goes for those who guard the President. And same things goes for those who ARE the President.
Mario wrote: "No alien located within the United States, even if friendly, was automatically considered a “citizen.”
ReplyDeleteExcellent point. Under the King of England's hegemonous system, every foreign immigrant was a de facto automatically naturalized subject via state policy, at least while residing in the King's realm. Thus his off-spring was comparable to the Wong opinion citizen -naturalized at birth also.
But in American there was no such state hegemony over foreign subjects. They were not considered to be subject to federal authority and thus their children could not be accepted as being American citizens since they remained under the jurisdiction of their homeland. Such subjects produced foreign subjects, while citizens produced natural citizens.
I have a novel thought that I've not seen expressed before, and that is that in most states of the union, as well as within federal territory, one born to an alien father was a kind of domestic subject but not a citizen. They were similar to Native Americans (Indians) and Gypsies, both of which were not subject to state or federal government because they were not officially a part of American society. They were so described by a respected Congressman in the 14th Amendment discussions as being akin to domestic subjects. What this points out is the fact that subjects are not equivalent to citizens because they do not have equal political rights even if they have equal civil rights, -which wasn't even the case fully, just like women were not politically nor civilly equal to men.
Mario wrote: "Founders and Framers adopted the natural law/law of nations/U.S. common law rule that a “natural born citizen” is a child born in a country to parents who were its “citizens” at the time of the child’s birth,"
ReplyDeleteCorrection: they never adopted any such rule because no such *rule* has ever existed. Observation of natural situations do not constitute rules. And who would be the Rule Maker? No one had the authority to make himself such a rule maker, and that includes Vattel who would be aghast at the magnitude of authority that you've applied to his simple observation.
First, he never claimed that the only natural citizens were those born within a nation's boundaries. Second, he never called such natural national members "natural born citizens"; he merely observed that they are labeled "les indigines o les naturels" Those are natural law terms and natural law terms do not include the word "citizen". "~The natives or the naturals" is what he wrote, meaning the native or natural inhabitants of the land and native and natural members of the society living on the land.
They are the natural citizens of the nation, but they are not the only natural citizens of the nation. Just because they are born within society's boundaries does not make them natural citizens, nor does not being born within the boundaries prevent them from being natural citizens. Only having foreign parents can do that.
Hypothetical: John McCain and his twin brother are born in the house that sits astride the U.S.-Canadian border. John was born on the Canadian side of the bedroom while his brother was born on the American side. Fifty years later John murders his brother and takes his place because then he will be eligible to be the President, which he wasn't before because he was born on the wrong side of the bedroom. THAT is the insanity that is being promoted with the baseless assertion that place of birth (just soli) is a mandated requirement in a bastardized Frankenstein amalgamation of jus soli with jus sanguinis, diametric opposites! The founders were not so addled.
I've exposed this fallacy repeatedly in multiple expositions with multiple irrefutable explanations. When will it sink in? Never? Apparently. It is an assertion that is like a ball and chain; something that does nothing but hobble understanding of natural citizenship.
Teo Bear expounded on WKA:
ReplyDelete"Now here is the question stated --
"The question presented by the record is whether a child born in the United States, of parents 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 [...]"
Near as I can tell you are arguing that Article II eligibility was not a question at issue in U.S v WKA. In fact you will find references to it in the government's brief, and Wong's response, and in the Chief Justice's dissent. Those are not precedent, and thus not dispositive points on my side, but still: What are you on about? That's more reference to the eligibility issue than you'll find in Minor v. Happersett.
I don't know of any cases prior to 2008 where presidential edibility was the controversy before a US court, with such arguable exceptions as suits to kick 33-year-old Eldridge Cleaver off the ballot. That's a statement of my own ignorance, but also an invitation to inform me.
Even without such court precedents, for decades the legal community has considered the eligibility of the native-born to be clear and settled. Recently, courts have agreed.
MichaelN again asked,
ReplyDelete"Show where and how does this say that native-birth is sufficient to make a NBS?"
Been there; done that. Thanks for re-quoting where it happened, and even adding additional context to support me. I'm trimming here: The Englishman said, even of the treasonous Frenchman, "if he hath issue here, that issue is a natural born subject".
You clearly understand what the archaic usage, "hath issue", meant. I have to assume you grasped what Lord Coke meant by "here".
Please MichaelN, go on citing Lord Coke on Calvin's case.
Note how Unknown just repeats his conclusions without any reason and logic based on historical and legal sources to back him up.
ReplyDeleteMario Apuzzo, Esq. said,
ReplyDelete"You try to constitutionally legitimize Barack Obama by relying on U.S. v. Wong Kim Ark (1898). You put all your eggs that basket. But unfortunately for you and Mr. Obama, the eggs are in the wrong basket."
I think you are wrong in many ways, but here I was a answering the question of what U.S. v. Wong Kim Ark says about who is a natural-born citizen. The majority opinion is long, difficult, and discursive. Determining precisely which bits are dicta is for debate among scholars far above me. I was answering the easy question. It came up.
According to the U.S. Supreme Court in WKA, our Constitution is written in the language of English common law. The terms "subject" and "citizen" are precisely analogous. In English common law, "Natural-born British subject" means a British subject who has become a British subject at the moment of his birth.
Attorney Apuzzo, you were right before that I give importance to what modern attorneys believe. I thought that U.S. v. Wong Kim Ark would probably control because that's what my modern sources told me. I had not read it before I became an obot. Your comment, "Unfortunately for you and Mr. Obama, the eggs are in the wrong basket," make no sense. Obama won and the court citations on the NBC issue trace back to WKA.
UNK,
ReplyDeleteMinor, a post 14th Amendment decision states,
... 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." But, in our opinion, it did not need this amendment to give them that position.
Two things are contained in this quote. First the 14th Amendment expressly declares persons claiming citizenship under the 14th Amendment are "citizens of the United States," and secondly the court did not need to use the 14th Amendment to declare Minor a citizen, they in fact found her to be a Natural Born Citizen and as the Court said, this avenue to citizenship pre-existed the 14th Amendment.
Wong Kim Ark was found to be a citizen of the United States under the 14th Amendment, the court could not use the common law nomenclature of a natural born citizen or else they would have, just as in Minor.
Now Article II states that "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;" Since WKA was born in the United States after the 14th Amendment he was ineligible for President.
In finding Minor a natural born citizen the court made sublime reference to the irony that while Minor could run for and be constitutionally qualified for the office only available to a natural born citizen she could not vote for herself.
Interesting that you bring up the WKA dissenting opinion. You are aware of the protocol of how a SCOTUS decision is published? Before the ruling is published all dissenting opinions are submitted. Therefore Justice Gray knew about the Justices Fuller's and Harlan's opinion on not making WKA a NBC. And as can be seen from Justice Gray's ruling he took their concerns seriously and did not declare WKA to be a NBC.
Okay? You still have not provided any positive proof to your false assumptions.
Unknown,
ReplyDeleteWong cannot be used to show that any child born in the United States, regardless of the citizenship of the child’s parents, is a “natural born Citizen,” based on Chief Justice Fuller’s comment that it “is unreasonable to conclude that ‘natural-born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances.”
As Teo Bear pointed out and as Obama eligibility supporters also alway point out, the majority would have had the Fuller dissent before publishing its opinion. Hence, the majority was well aware of the presidential eligibility issue raised by the dissent. In his majority opinion, Justice Gray distinguished a child born in the country to alien parents from a “natural born” citizen child born in the country to citizen parents. In his opinion, in how he stated the question presented and the holding, was also very careful to point out that the majority was only answering the “single question” of whether Wong was a “citizen of the United States,” “by virtue of the Fourteenth Amendment,” which both Minor and Wong Kim Ark confirmed did not define a “natural born Citizen.” Justice Gray then held Wong to be a “citizen of the United States” under that amendment. He did not hold that Wong was also a “natural born Citizen” under Article II. This is critical given that the unanimous U.S. Supreme Court in Minor held that Virginia Minor, who was born in the country to parents who were its “citizens” at the time she was born, was not only a “citizen” like her parents, but she was also a “natural-born citizen.” So, here we can see the crucial constitutional difference between the Minor and Wong Kim Ark holdings as they relate to defining an Article II “natural born Citizen.” Based on these distinctions, we can reasonably conclude that the Minor holding controls on the meaning and application of the “natural born Citizen” clause and the Wong Kim Ark holding does not.
Ray,
ReplyDeleteI few reflections on State v. Manuel are in order:
1. Note how the North Carolina court had to first establish that Manuel was a “citizen” before it could examine whether he was entitled to the protections of the state constitution and declaration of rights which provided that debtors who did not act fraudulently and who provided in good faith for their creditors all their real and personal property to pay any given debt could not be imprisoned for not paying that debt. So citizenship, which the court said did not need as necessary conditions color or political rights in order to be granted, was a threshold question before the court could continue to examine what rights Manuel had. The unanimous U.S. Supreme Court addressed the same threshold question in Minor v. Happersett (1875), where the Court first analyzed whether Virginia Minor was a “citizen” before it examined whether being a “citizen” gave her the constitutional right to vote under the privileges and immunities clause of Article IV which the State of Missouri could not abridge because of the Fourteenth Amendment. But yet, the Obama supporters, who live in a world of contradiction and misapplication, cite via Justice Gray in Wong Kim Ark Manuel’s treatment of the citizenship issue (“citizen” precisely analogous to “subject”) as support for their position that the definition of an American “natural born Citizen” comes from the definition of an English “natural born subject,” but at the same time maintain that Minor’s addressing the issue of citizenship is pure dicta. Clearly, if citizenship is dicta in Minor, then it is also dicta in Manuel.
On the contrary, both Manuel and Minor thoughtfully addressed the citizenship issue. Hence, what they both said about citizenship is not dicta.
2. Now on to the substantive point. Your point about Manuel being limited to the law of North Carolina is a very good point. It is a very good point because it explains that the Manuel “analogous” statement has to be read within the state context of that decision, and not applied to the national context where it has no place given the national founding principles which you correctly point out are grounded on “the Laws of Nature and of Nature’s God.” Add to Manuel saying, “our law,” and “our constitution” that the court, in referring to “the common law,” was referring to “the common law” of North Carolina and not to our national common law which I have explained in matters of citizenship was based on the law of nature and the law of nations which was incorporated by our Constitution as part of Article III “laws of the United States.” Also add that the court said “a citizen of the State.” Again, there is no reference to national citizenship such as “citizen of the United States” or “natural born Citizen.” So, you are right, the Manuel decision applied a “subject” from the English common law only in the context of that states’s common law and in the application of that state law to declare someone “a citizen of the State.” It did not apply our national common law which is what the unanimous U.S. Supreme Court did in Minor to find that at “common law” with which the Framers were familiar when they drafted the Constitution, Virginia Minor was not only a “citizen,” but also a “natural born citizen.” So, the Obama eligibility supporters’ (which includes Unkown on this blog) Minor dicta argument lives in contradiction like all of their arguments, and their reliance on Manuel, as is their reliance on Wong Kim Ark, is misplaced.
The problem is most congressmen (Thaddeus McCotter, Marco Rubio, to name a few) think that the 14th Amendment makes any child born in the U.S. a citizen at birth, and that a citizen at birth = natural born citizen.
ReplyDeleteThis is idiomatic dissonance.
The research here proves that there was no jus soli until forced by lack of jus sanguinis in the law, viz. 14th Amendment. If jus soli existed, the 14th Amendment would not have to include 'born in the United States.
If Marco Rubio and Bobbie Jindal had told the press that they were not considering a run for the presidency because they were not natural born citizens, that would have done extreme damage to the Obama candidacy and presidency.
However, the idiomatic dissonance and their own political ambition compel them to ignore the issue.
Emer de Vattel was prophetic in his commentary that only citizens can beget citizens. (§§ 212, 215) In addition, he also warned that the citizens had a duty to speak out if aliens began undermining the sovereign nature of their government; and if they did not, they had no natural right to perserve their sovereignty [cite omitted].
The Immigration Reform efforts, not to mention the son of a Marxist alien as president, has made Vattel prescient once again.
California is lost (55 electors), New Mexico (5), Nevada (6), Arizona in danger (11), Florida (9), and Texas is in danger from current immigration trends and impending Amnesty (38), or a total of 134 . . . that's half the 270 required for election right there.
Add to that, the major population centers amenable to illegals who find ready access to federal programs and welfare and cheap housing, so Ohio, Florida, Pennsylvania are gone, and therefore the Republic.
Therefore, this issue of Natural Born Citizenship is more than just a question of Obama's presidency, but the survival of the Republic and our Constitution.
Unknown said...
ReplyDelete"MichaelN again asked,
"Show where and how does this say that native-birth is sufficient to make a NBS?"
Been there; done that. Thanks for re-quoting where it happened, and even adding additional context to support me. I'm trimming here: The Englishman said, even of the treasonous Frenchman, "if he hath issue here, that issue is a natural born subject".
You clearly understand what the archaic usage, "hath issue", meant. I have to assume you grasped what Lord Coke meant by "here".
Please MichaelN, go on citing Lord Coke on Calvin's case."
What a weak and pathetic loser's attempt at continuing your LIE.
Here you go, choke on this ....
"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;
any place within the king’s dominions without obedience can never produce a natural subject.
This word ligeance is well expressed by divers several names or synonymia which we find in our books. Sometime it is called the obedience"
Ergo: Native-birth without the allegiance of a "subject" father results in an alien-born child who is born under foreign allegiance.
"An alien born is of foreign birth or
Ergo MkI: NOWHERE in the 17th century English common law case i.e. Calvin's case, (cited by justice Horace Gray in the Wong Kim Ark case)was it held or opined that native-birth, without a subject father, sufficed to make a natural born subject.
It's no wonder why people use pseudonyms like "Unknown", especially if they are in the legal profession, how embarrassing it would be if their true identity were known, when they have publicly demonstrated their bigoted and pathetically (deliberately)incorrect interpretations.
You lose "Unknown", you have been smacked down again, truth wins.
What's more you have here repeatedly exposed yourself as dishonest, and in this particular matter of the USC and erosion of national security, that makes you a traitor.
I should have also added to my last post more truth on the matter, further PROVING that 17th century English common law NEVER held that native-birth sufficed to make a natural born subject and in fact Lord Coke EMPHASIZED on NUMEROUS occasions that native-birth was not enough with a "subject" father ....
ReplyDeleteLord Coke Calvin's case...
"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:"
@ Unknown (the coward traitor afraid to use his/her real name)
YOU LOSE!
If all it took to be a natural born citizen is birth on US soil then that term wouldve been in 14th amd but instead "citizen of the United states" is used. I never knew or studied what a NBC was but i thought being born in US made you one and i was clearly wrong. Law of nations, minor, the venus etc all say "born in a country to parents who are its citizens, these are the natives or NBCs". No one with any common sense would want a foreign citizen as CiC and neither did the Framers. All children inherit citizenship from their parents. I am sure barry loves being CiC which is a power given to a legal president under US Constitution. If he had any honor at all he wouldve resigned after taking oath of office to "support,preserve, protect and defend" the Constitution because he knows he is not eligible. Stalin must be laughing in hell about how his dream of freedom stifling communism coming to fruition in sucking the life out of USA. Crooked politicians, mickey mouse judges, leftist media propaganda, marxist professors and school teachers, atheists are not uncommon now in USA. I am 47 now and i cannot believe we went from Reagan to the obamarxist. The Founders and Lincoln were well aware of "domestic enemys" potentially ruining USA. I can definitely see our currency being ruined from massive debt barry has incurred (on purpose i believe to weaken country), not that he is solely responsible. If Congress would just enforce Article 2 we would have a better chance out of getting of this disaster but we know that will not happen. Thanks again to mario and rest of patriots for speaking out on this matter, Leo Derosia, Article 2 natural born citizen. I was born in a country (USA) to parents who are its citizens with a real BC, draft card and SS#. Mario, Orly, Lt Col Lakin, trump and jerome corsi are welcome to see my bonafides, i promise not to spend millions to hide anything or a dime for that matter. Apologys for screen name, i didnt think it would appear haha
ReplyDelete