Defining Natural-Born Citizen
“The common law of England is not the common law of these States.” –George Mason
What might the phrase “natural-born citizen” of the United States imply under the U.S. Constitution? The phrase has always been obscure due to the lack of any single authoritative source to confer in order to understand the condition of citizenship the phrase recognizes. Learning what the phrase might have meant following the Declaration of Independence, and the adoption of the Fourteenth Amendment, requires detective work. As with all detective work, eliminating the usual suspects from the beginning goes a long way in quickly solving a case.
What Natural-Born Citizen Could Not Mean
Could a natural-born citizen simply mean citizenship due to place of birth?
Unlikely in the strict sense because we know one can be native born and yet not a native born citizen of this country. There were even disputes whether anyone born within the District of Columbia or in the territories were born citizens of the United States (they were generally referred to as “inhabitants” instead.) National Government could make no “territorial allegiance” demands within the several States because as Madison explained it, the “powers delegated by the proposed Constitution to the Federal Government, are few and defined,” and those “which are to remain in the State Governments are numerous and indefinite.”
Jurisdiction over citizenship via birth within the several States was simply an exercise of a States “numerous and indefinite” powers. Early acts of Naturalization recognized the individual State Legislatures as the only authority who could make anyone a citizen of a State. Framer James Wilson said, “a citizen of the United States is he, who is a citizen of at least some one state in the Union.” These citizens of each State were united together through Article IV, Sec. II of the U.S. Constitution, and thus, no act of Congress was required to make citizens of the individual States citizens of the United States.
Prior to the Revolutionary War place of birth within the dominions of the crown was the principle criterion for establishing perpetual allegiance and citizenship. After independence perpetual allegiance was abandoned for expatriation and, as Madison stated, laws over defining citizen and alien “have obtained in some of the States,” and “if such a law existed in South Carolina, it might have prevented this question from ever coming before us” (question of Rep. William Smith being a citizen or not).
Furthermore, all of the States required everyone including aliens to take an oath of allegiance to the State as a condition of residency. Children born to these residents were considered born into the allegiance of the State. In other words, unlike under the common law, birth by itself did not create allegiance to the State to non-resident aliens.
Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?
It is very doubtful the framers adopted the doctrine found under the old English doctrine of “natural-born subject.” The British doctrine allowed for double allegiances, something the founders considered improper and dangerous. The American naturalization process required all males to twice renounce all allegiances with other governments and pledge their allegiance to this one before finally becoming a citizen.
House Report No. 784, dated June 22, 1874, stated, “The United States have not recognized a ‘double allegiance.’ By our law a citizen is bound to be ‘true and faithful’ alone to our government.” It wouldn’t be practical for the United States to claim a child as a citizen when the child’s natural country of origin equally claims him/her because doing so could leave the child with two competing legal obligations, e.g., military duty.
Under the old English common law doctrine of natural-born subject, birth itself was an act of naturalization that required no prior consent or demand of expressed allegiance to the nation in advance. Furthermore, birth was viewed as enjoining a “perpetual allegiance” upon all that could never be severed or altered by any change of time or act of anyone. England’s “perpetual allegiance” due from birth was extremely unpopular in this country; often referred to as absurd barbarism, or simply perpetual nonsense. America went to war with England over the doctrine behind “natural-born subject” in June of 1812.
Because Britain considered all who were born within the dominions of the crown to be its natural-born subjects even after becoming naturalized citizens of the United States, led to British vessels blockading American ports. Under the British blockade, every American ship entering or leaving was boarded by soldiers in search of British born subjects. At least 6,000 American citizens who were found to be British natural-born subjects were pressed into military service on behalf of the British Empire, and thus, the reason we went to war.
Fourteenth Amendment
Whatever might had been the correct understanding of “natural-born citizen” prior to 1866, the adoption of the Fourteenth Amendment certainly changes the view because for the first time we have a written national rule declaring who are citizens through birth or naturalization. Who may be born citizens is conditional upon being born “subject to the jurisdiction” of the United States – a condition not required under the common law. The legislative definition of “subject to the jurisdiction thereof” was defined as “Not owing allegiance to anybody else,” which is vastly different from local jurisdiction due to physical location alone.
This national rule prevents us from interpreting natural-born citizen under common law rules because it eliminates the possibility of a child being born with more than one claim of allegiance.
The primary author of the citizenship clause, Sen. Jacob M. Howard, said the “word jurisdiction, as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, coextensive in all respects with the constitutional power of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”
This remark by Howard puts his earlier citizenship clause remark into proper context: “This will not, of course, include persons born in the United States who are foreigners, aliens, who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”
United States Attorney General, George Williams, whom was a U.S. Senator aligned with Radical Republicans during the drafting of the Fourteenth Amendment in 1866, ruled in 1873 the word “jurisdiction” under the Fourteenth Amendment “must be understood to mean absolute and complete jurisdiction, such as the United States had over its citizens before the adoption of this amendment.” He added, “Political and military rights and duties do not pertain to anyone else.”
Essentially then, “subject to the jurisdiction thereof” means the same jurisdiction the United States exercises over its own citizens, i.e., only citizens of the United States come within its operation since citizens of the United States do not owe allegiance to some other nation at the same time they do the United States. This makes arguing the physical presence of being subject to laws silly because being subject to another countries laws while visiting makes no change to an aliens allegiance to their native country.
Natural-Born Citizen Defined
One universal point most all early publicists agreed on was natural-born citizen must mean one who is a citizen by no act of law. If a person owes their citizenship to some act of law (naturalization for example), they cannot be considered a natural-born citizen. This leads us to defining natural-born citizen under the laws of nature – laws the founders recognized and embraced.
Under the laws of nature, every child born requires no act of law to establish the fact the child inherits through nature his/her father’s citizenship as well as his name (or even his property) through birth. This law of nature is also recognized by law of nations. Sen. Howard said the citizenship clause under the Fourteenth Amendment was by virtue of “natural law and national law.”
The advantages of Natural Law is competing allegiances between nations are not claimed, or at least with those nations whose custom is to not make citizens of other countries citizens without their consent. Any alternations or conflicts due to a child’s natural citizenship are strictly a creature of local municipal law. In the year 1866, the United States for the first time adopted a local municipal law under Sec. 1992 of U.S. Revised Statutes that read: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”
Rep. John A. Bingham commenting on Section 1992 said it means “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.” (Cong. Globe, 39th, 1st Sess., 1291 (1866))
Bingham had asserted the same thing in 1862 as well:
Does the gentleman mean that any person, born within the limits of the Republic, and who has offended against no law, can rightfully be exiled from any State or from any rood of the Republic? Does the gentleman undertake to say that here, in the face of the provision in the Constitution, that persons born within the limits of the Republic, of parents who are not the subjects of any other sovereignty, are native-born citizens, whether they be black or white? There is not a textbook referred to in any court which does not recognise the principle that I assert. (Cong. Globe, 37th, 2nd Sess., 407 (1862))
Bingham of course was paraphrasing Vattel whom often used the plural word “parents” but made it clear it was the father alone for whom the child inherits his/her citizenship from (suggesting a child could be born out of wedlock wasn’t politically correct). Bingham subscribed to the same view as most everyone in Congress at the time that in order to be born a citizen of the United States one must be born within the allegiance of the Nation. As the court has consistently ruled without controversy, change of location never changes or alters the allegiance of anyone but only an act of the person acting per written law can alter the allegiance owed.
This of course, explains why emphasis of not owing allegiance to anyone else was the effect of being subject to the jurisdiction of the United States under the Fourteenth Amendment.
It should be noted this allegiance due under England’s common law and American law are of two different species. Under the common law one owed a personal allegiance to the King as an individual upon birth for which could never be thrown off. Under the American system there was no individual ruler to owe a perpetual personal allegiance to.
The constitutional requirement for the President of the United States to be a natural-born citizen had one purpose according to St. George Tucker:
That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, wherever it is capable of being exerted, is to he dreaded more than the plague. The admission of foreigners into our councils, consequently, cannot be too much guarded against; their total exclusion from a station to which foreign nations have been accustomed to, attach ideas of sovereign power, sacredness of character, and hereditary right, is a measure of the most consummate policy and wisdom. …The title of king, prince, emperor, or czar, without the smallest addition to his powers, would have rendered him a member of the fraternity of crowned heads: their common cause has more than once threatened the desolation of Europe. To have added a member to this sacred family in America, would have invited and perpetuated among us all the evils of Pandora’s Box.
Charles Pinckney in 1800 said the presidential eligibility clause was designed “to insure … attachment to the country.” President Washington warned a “passionate attachment of one nation for another, produces a variety of evils,” and goes on to say:
Sympathy for the favorite nation, facilitating the illusion of an imaginary common interest, in cases where no real common interest exists, and infusing into one the enmities of the other, betrays the former into a participation in the quarrels and wars of the latter, without adequate inducement or justification. It leads also to concessions to the favorite nation, of privileges denied to others, which is apt doubly to injure the nation making the concessions; by unnecessarily parting with what ought to have been retained; and by exciting jealousy, ill- will, and a disposition to retaliate, in the parties from whom equal privileges are withheld.
And it gives to ambitious, corrupted, or deluded citizens, (who devote themselves to the favorite nation,) facility to betray or sacrifice the interests of their own country, without odium, sometimes even with popularity; gilding, with the appearance of a virtuous sense of obligation, a commendable deference for public opinion, or a laudable zeal for public good, the base or foolish compliances of ambition, corruption, or infatuation.
What better way to insure attachment to the country then to require the President to have inherited his American citizenship through his American father and not through a foreign father. Any child can be born anywhere in the country and removed by their father to be raised in his native country. The risks would be for the child to return in later life to reside in this country bringing with him foreign influences and intrigues, and thus, making such a citizen indistinguishable from a naturalized citizen.
Conclusion
Extending citizenship to non-citizens through birth based solely upon locality is nothing more than mere municipal law that has no extra-territorial effect as proven from the English practice of it. On the other hand, citizenship by descent through the father is natural law and is recognized by all nations (what nation doesn’t recognize citizenship of children born wherever to their own citizens?). Thus, a natural-born citizen is one whose citizenship is recognized by law of nations rather than mere local recognition.
Chairman of the House Judiciary Committee, James F. Wilson of Iowa, confirmed this in 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except that of children born on our soil to temporary sojourners or representatives of foreign Governments.”*
When a child inherits the citizenship of their father, they become a natural-born citizen of the nation their father belongs regardless of where they might be born. It should be pointed out that citizenship through descent of the father was recognized by U.S. Naturalization law whereby children became citizens themselves as soon as their father had become a naturalized citizen, or were born in another country to a citizen father.
Yes, birth is prima facie evidence of citizenship, but only the citizenship of the nation the father is a member.
In regards to questions about the citizenship of the mother: Mothers citizenship rarely ever influenced the citizenship of their children except in certain situations such as the father dying before the child was born or when the identity of the father was unknown.
* Temporary sojourners like transient aliens were a description applied to aliens other than resident aliens. The difference being temporary aliens were here for temporary purposes, such as work, travel, visitation or school, who had no desire to become citizens or was prevented from becoming citizens by law. Resident aliens were those who desired to become citizens and had renounced their prior allegiances and had taken the legal steps to become citizens or reside within some state per state law.
Related: What “Subject to the Jurisdiction Thereof” Really Means
Related: Nothing Unusual about States Denying Citizenship to Alien Born Children
Categories: citizenship
Senator Howard’s use of the phrase “by virtue of natural law” in his sponsorship speech of the citizenship clause is, of course, taken from Lord Coke in Calvin’s Case:
“That ligeance or obedience of the subject to the Sovereign is due by the law of nature”Â
Thus, “by the law of nature”–”It is neither the climate nor the soil but allegiance and obedience that make the subject born.”Â
Allegiance to the United States at birth (natural-born) or after birth (naturalized) is, of course, the determinant to U.S. citizenship; but there is an exception–”non-citizen national of the United States,” defined by law as “a person who, though not a citizen of the United States, owes permanent allegiance to the United States” to confer the oxymoron identity to disowned outcasts, otherwise stateless.
by domingo arong on Nov 18, 2008 at 7:21 am
In Reply to domingo arong:
The sovereign Coke is referring to is the crown. There was no crown in this country! In this country the people are the sovereign.
The ligeance Coke is referring to is England’s very own homegrown “natural allegiance,” AKA “perpetual allegiance.”
And there no such thing as owing “permanent allegiance” in this country. Expatriation is alive and well just as it has been since the beginning. You need to get your head out of the dark ages
by Larry on Nov 18, 2008 at 9:00 pm
In Reply to Larry:
As regards “natural” or “perpetual” allegiance, this is how “Justice Swayne, sitting in the circuit court,” defined “Ânatural-born” in U.S. v. Rhodes–decided during the same year Congress enacted the Citizenship Clause in 1866 (ratified 1868)–that Justice Gray cited in U.S. v. Wong Kim Ark (1898):
“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.”Â
So, the principle applies whether the sovereign is the “crown” or “We, the people.”
It’s the law that says “permanent allegiance” (see definition of “non-citizen national” in the U.S. Code at Title 8, Chapter 12, Subchapter I, Section 1101, (a), 22).
It’s this law that’s still in the “dark ages.”
by domingo arong on Nov 19, 2008 at 1:51 am
In Reply to domingo arong:
Swayne in Rhodes was repeating what Kent had written and was not making any opinion of his own. Swayne made a fatal mistake of fact when he wrote: “We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.”
He concludes by writing “if we have erred, the Supreme Court of the United States can revise our judgment and correct our error.”
Well the Supreme Court never did not get the opportunity because Congress clearly rejected the common law doctrine with their civil rights act the 14th amendment the same year.
I think the fundamental differences between American law and common law the 39th Congress brought about was in this country allegiance was made conditional upon citizens having only allegiance to this country and no other. In the U.K. citizens owed unconditional allegiance to the crown.
In either case, birth was still the criteria for acquiring allegiance to either nation with the only difference in this country there could only be one allegiance!
by J. Aldridge on Nov 19, 2008 at 8:05 am
FWIW: I don’t trust anything Kent has to say about American citizenship after he had suggested the rule of the common law remained unaltered in this country because, allegedly, no one could renounce their citizenship. What an ignorant moron.
by Randy on Nov 19, 2008 at 11:06 am
The Fourteenth Amendment, like all the amendments, only further declares and restricts the Constitution mainbody. No new “national rule” is created. Additionally, The People of the United States view the so-called “institution of slavery” as a series of felonies including manstealing, mayhem, and assault. The limitations against nobility, state and federal, expressly withdraw all immunities to prosecution claimed by self-described slavemasters.
by dee white on Nov 21, 2008 at 12:13 pm
It is inconceivable that a president-elect could get this far — AFTER an election, without giving absolute proof of his eligibility to even run for the office. Did the Dems go to sleep at the wheel or what???? Why bother with a constitution at all if it’s totally ignored in THE most important election in our country?
by mary on Nov 23, 2008 at 9:52 pm
I think the point about inheriting your father’s last name is important because I am not aware of any law that says all children born acquire their father’s last name. It is only natural, right? Acquiring your father’s citizenship would be just as natural.
No one argues today children should acquire their mother’s last name?
What happens if Obama is disqualified?
by Tom T. on Nov 24, 2008 at 5:00 am
In Reply to Tom T.:
If Obama is found disqualified than the office would go to the next candidate with the most EV’s. The key word here is “disqualified” and not death or removal of a president.
It is no different than any other race when the winner is found disqualified. A new race is never held over again but the runner-up made the legitimate winner. Biden wouldn’t be the runner up since he wasn’t in the race for office of President (he became disqualified with Obama).
by Larry on Nov 24, 2008 at 6:03 am
So many questions here:
(1)Where did the Blessed Event take place? The fact that there is a birth certificate somewhere in the secret files of Hawaii doesn’t mean he was born in Hawaii. As even forest dwellers know by now, the Certification of Live Birth on the Obama website was bogus, and even if it were real, is not the legal equivalent of a Birth Certificate. E.G. Obama’s born-in-Indonesia sister has a Certification of Live Birth from Hawaii. Certificate/Certification.
(2) Were the Mother and BHO, Sr. legally married? (This is another matter to be considered, as BHO, Sr. was already married in Kenya, and a father.) Frankly, I think if his parents were NOT legitimately married, it makes the case for The Chosen One’s citizenship stronger.
(3)Enough with Hawaii and Kenya. Was The Obamessiah adopted by Lolo Soetoro, an Indonesian citizen to whom his mother was presumably legally married after the Obama thing broke up? After all, our putative leader did use the name Barry Soetoro for years, and traveled to Pakistan with his NYC roomies on, it is rumored, an Indonesian passport in that name.
(4) Relax everyone. The SCOTUS will ponder all of these strange factoids and much more on December 5th. They will be trying to decide whether or not they should be involved. After all, what does the Constitution matter in Presidential elections? What is this country coming to if an illegal alien living in Boston Public Housing can’t have her nephew elected President?
by François Franchemain on Nov 24, 2008 at 11:45 am
I think P.A. Madison is correct here with his definition of natural born citizen considering the first Congress defined natural born citizen as born to a American father. Citizenship cannot be any more natural than that.
If SCOTUS want to treat natural born the same as place of birth they’ll have to explain away why the founders defined natural born citizens as being being born to American father’s only.
Alexander Morse in 1904 wrote “the framers thought it wise, in view of the probable influx of European immigration, to provide that the President should at least be the child of citizens owing allegiance to the United States at the time of his birth.”
by Glen Thompson on Nov 24, 2008 at 1:33 pm
In Reply to domingo arong: No United States person owes allegiance to anyone or any government. He is duty-bound to obey U.S. Constitution and laws in pursuance or pay prescribed penalties. How could this be otherwise, since every person maintains equal sovereignty with every other person? American sovereignty is joint and several.
by Dee White on Nov 25, 2008 at 8:05 am
What’s a natural born U.S. citizen?
NOT OBAMA !
There’s no way I will recognize a Kenyan born man as an American president.
Why bother migrating to America if all we get is a Kenyan born president with values of a Kenyan and anti-American?
No can do.
PLEASE EVERYONE SIGN THE PETITION AND WRITE A LETTER TODAY, THIS FREE AUTOMATED SITE MAKES IT EASY IN 30 SECONDS:
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by MoniQue on Nov 25, 2008 at 9:29 pm
Natural born citizen is defined by the Immigration and Nationality Act, Section 301. It reads as follows:
INA: ACT 301 – NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH
Sec. 301. [8 U.S.C. 1401] The following shall be nationals and citizens of the United States at birth:
(a) a person born in the United States, and subject to the jurisdiction thereof;
(b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;
(c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;
(d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;
(e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;
(f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 1 of the International Organizations Immunities Act (59 Stat. 669; 22 U.S.C. 288) by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person (A) honorably serving with the Armed Forces of the United States, or (B) employed by the United States Government or an international organization as defined in section 1 of the International Organizations Immunities Act, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and
(h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States. 302 persons born in Puerto Rico on or after April 11, 1899
by David Hoobler on Nov 25, 2008 at 10:07 pm
In Reply to Larry: It depends…
If it is proven before January 6, 2009 and the electoral votes are not cast for Obama then the electorals votes could go to any other candidate.
After Jan 6 and before Jan 20 (official qualification period) then Biden would become president.
After January 20, 2009 Obama must be impeached and you know they would not do that to their savior.
by Gallaher on Nov 26, 2008 at 1:54 am
According to Blackstone, citizenship in some periods under common law might also involve the father’s citizenship or *both* parents being citizens. The later probably fits this age better, but Obama wouldn’t be a natural born citizen under either criteria.
by De Plume on Nov 26, 2008 at 5:38 am
That declaration by the Reconstruction Congress declaring the U.S. does not recognize double allegiance is a double whammy against the holding in Wong Kim Ark. If this was the true purpose behind subject to the jurisdiction of the United States then there is no way anyone can link the clause to common law.
What a horrible mess the court has made for itself.
by Perry Norton on Nov 26, 2008 at 9:33 am
In Reply to David Hoobler:
I might be reading that wrong, but doesn’t this just describe who is a citizen, and not a natural-born citizen? Under the law, these are two very different things.
by Justin on Nov 26, 2008 at 11:19 am
lanlamphere.com produced the article US v. Rhodes, 27 F. Cas. 785; 1866 U.S. App. LEXIS 330; 1 Abb. 28; 1 Am. Law T. Rep. U.S. Cts. 22 (Circuit Court, D. Kentucky 1861) is the case that defines “natural born citizen”
All persons born in the allegiance of the king are natural born subjects, and all persons born in the allegiance of the United States are natural born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well [**18] as of England. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are in theory born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons. 2 Kent, Comm. 1; Calvin’s Case, 7 Coke, 1; 1 Bl. Comm. 366; Lynch v. Clarke, 1 Sand. Ch. 583.
by truthrevealed on Nov 26, 2008 at 11:42 am
In Reply to truthrevealed: Rhodes is a irrelevant citation. See my response to Rhodes below.
by J. Aldridge on Nov 26, 2008 at 12:36 pm
In Reply to Justin: No, Section 301 defines who is a natural born citizen, or as the title of the section says “NATIONALS AND CITIZENS OF THE UNITED STATES AT BIRTH “.
by David Hoobler on Nov 26, 2008 at 1:37 pm
In Reply to David Hoobler:
Laws adopted since the framing of the Constitution do not alter the language and intent of the constitution.
Hence, laws redefining “natural born citizen” do not change the Constitution.
Natural law specifies that one’s identity, rights, and legal holdings are imparted by one’s father. Thus, the difference between a “natural born citizen” as opposed to merely a “born citizen” is that the father must also be a citizen.
by Arlen Williams on Nov 26, 2008 at 1:39 pm
In Reply to J. Aldridge:
You are talking about a US Citizen defined by statute. That is not the same as “natural born citizen” It is determined by common law. What needs to happen is there needs to be a S.Ct case that adopts or explains natural born citizen clause and what the framers intended.
Either way Obama nor McCain qualify.
by truthrevealed on Nov 26, 2008 at 1:51 pm
In Reply to J. Aldridge:
the Natural born citizen clause of Article II, Section 1, Clause 5 of the U. S. constitution is not subject to Congressional interpretation. Congress tried to do that with the Nationality Act of 1790 and the Courts knocked it down in 1795 and it had to be repealed. This is a common law issue (judge based/court decision) not something that our US Congress has to interpret.
by truthrevealed on Nov 26, 2008 at 2:16 pm
If you read the Donofrio v. Wells case, you’ll see that it relies on the Constitution, not a birth certificate, not an Act of Congress, the Constitution! And the Constitution can ONLY be changed via an Amendment.
http://grou.ps/zapem – Has the entire Donofrio blog w/ the links to everything else.
Right smack in the middle of that page is the Plains Radio Interview with Donofrio explaining the entire law and what the Judges have to decide on 12/5, not what people are deciding the Justices will decide. sheesh!
By the way, Donofrio will be on Plains Radio again tonight, 11/26. The link from the above page is going to be http://www.plainsradio.com/chat.html for the live stream.
by Lance on Nov 26, 2008 at 3:15 pm
In Reply to truthrevealed:
Not sure what you mean by the courts repealing the act of 1790. Whether it can be considered a common law issue or not is moot because the 14th amendment abandoned the common law result of double allegiances.
by J. Aldridge on Nov 26, 2008 at 3:52 pm
There is another S.Ct. case, US v. Wong Kim Ark, 169 US 649 (1898), that discusses the natural born citizen clause of the US constitution. The case in on point and explains that common law (judge made law) defines the two terms of Article II to be president, NOT CONGRESS.
What the Constitution as of 1787 did was classify two citizens for Presidency: (1) Natural born citizens OR (2) Citizen of the United States (as of the adoption of the Constitution in 1787). The Fourteenth Amendment is IRRELEVANT to Article II of the U.S. Constituion. People need to keep that in mind here when they start referring to it.
by truthrevealed on Nov 26, 2008 at 4:09 pm
In Reply to J. Aldridge:
14th Amendment DID NOT do that. 14th Amendment only applies to Citizens of the US, not to the natural born citizen clause of Article II of the US Constitution.
I think you are in lala land.
Look at the case I just gave.
by truthrevealed on Nov 26, 2008 at 4:13 pm
In Reply to truthrevealed:
I didn’t say the 14th amendment did, I merely point out as Paul Madison does the 14th applies a condition that is incompatible with England’s common law doctrine when determining citizenship through birth period.
by J. Aldridge on Nov 26, 2008 at 4:23 pm
In Reply to J. Aldridge:
US v. Rhodes corroborates US v. Wong Kim Ark. These are two supreme court cases that discuss that natural born citizen is taken from common law (judge based law in England). The principle behind it is “birth within the allegiance.” Noforio v. Wells is right in his interpretation which is a natural born citizen of the US must be born on the main US soil or US territory AND both parents are US citizens.
by truthrevealed on Nov 26, 2008 at 5:17 pm
In Reply to J. Aldridge:
You are focusing on ancillary issues. We are not talking about Citizens of the US as in the 14th Amendment. The issue is whether Obama or McCain are natural born citizens as the founding fathers intended in the US Constitution in 1787. That is why people are not focusing on the right stuff. I have read over the case law, Obama and McCain have a problem and are ineligible. S.Ct. should rule that they should both be excluded and the 11/4/08 election is void.
by truthrevealed on Nov 26, 2008 at 5:45 pm
In Reply to truthrevealed: Rhodes wasn’t a supreme court decision. Wong Kim Ark has no basis in law or fact to warrant considering.
by J. Aldridge on Nov 26, 2008 at 5:45 pm
In Reply to Arlen Williams: The English juror Sir William Blackstone is viewed as the authority on natural law. Below is his interpretation. He makes no reference the the father.
William Blackstone, Commentaries 1:354, 357–58, 361–62 (1765)
The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it. Allegiance is the tie, or ligamen, which binds the subject to the king, in return for that protection which the king affords the subject. The thing itself, or substantial part of it, is founded in reason and the nature of government; the name and the form are derived to us from our Gothic ancestors.
by Anonymous on Nov 26, 2008 at 6:47 pm
In Reply to Anonymous: I must apologize. That was me replying. I did not mean to omit my name.
by David Hoobler on Nov 26, 2008 at 6:49 pm
Natural born citizen can only be construed for the purpose sought by its insertion. Born without the allegiance of the United States would render the protection sought a nullity, thereby opening the office to foreign influences. Natural law of heredity must have been what framers sought by the addition.
by Judge Roy Bean on Nov 26, 2008 at 8:44 pm
In Reply to MoniQue: It wont do any good to sign petitions . I recieved an e mail from Sherrod Brown telling me that O is a citizen.”I dont believe It!” Someone is trying to override our constitution by allowing this SHAM OF AN ELECTION!! IF HE IS SWORN IN, without proving beyond a shadow of a doubt that he is CONSTITUTIONALLY ELIGIBLE To Be President/ then we are lost! I dont believe he is a citizen,not to mention the fact he has dual citizenship!
by Donna on Nov 27, 2008 at 4:03 am
Obama, by definition, is NOT, and never will be, a Natural Born citizen of the United States. He may possibly be a US citizen but he will NEVER be considered a Natural Born citizen because of his father’s British allegiance at the time of Obama’s birth.
It doesn’t matter if he was born in a manger on the steps of the White House with a million witnesses, it still wouldn’t make him a Natural Born citizen of the United States.
If you have a father that isn’t a US citizen (meaning he owes his allegiance to a foreign sovereignty), you cannot be a Natural Born citizen of the United States, regardless of being born on US soil. You could become a US citizen by being naturalized and denouncing any allegiance to a foreign sovereignty, but that would only make you a US citizen. Not a Natural Born citizen.
The birth certificate is a red herring because it doesn’t matter WHERE Obama was born. It matters that both of his parents were NOT US citizens at the time of his birth.
It doesn’t matter that Obama allegedly dropped his Kenyan citizenship in 1981 or whatever his website says. This isn’t about what happened twenty years after his birth. It is about the circumstances under which he was born and it has been made quite clear, by Obama’s own admission, that his father wasn’t a US citizen.
I’m really glad that Leo Donofrio understood this and left the birth certificate out of the lawsuit. Many other lawsuits are distracted by the location of Obama’s birth and they fail to recognize that, regardless of WHERE he was born, he will NEVER be a Natural Born citizen because of his father’s allegiance to Britain.
by I love the Constituion on Nov 27, 2008 at 8:30 am
Lemme make sure I understand Madison’s argument correctly here. He is arguing because the Fourteenth Amendment rules out double allegiances this rules out natural born citizen being related to the British term? I can accept that because, frankly, acts of Congress after 1868 is pretty conclusive proof they had no desire to affirm the English common law version that creates double allegiances.
If I understand Wong Kim Ark ruling, that dealt with whether a Chinese man could be a citizen through his domiciled parents (although the court was clearly wrong because by treaty they could not declare a chinese citizen to be American (Supremes above treaties now?)).
So, the argument goes the Fourteenth Amendment altered the meaning of natural born from any common law understanding because for the first time the possibility of dual allegiances were ruled out.
I think this is the best argument yet.
by Horseman on Nov 27, 2008 at 9:31 am
In the case of McCain. A the time of his birth The Panama Canal Zone was owned and controlled by the USA. It was a ten mile swath of Panama that Carter gave back in the Late 70′s, early 80′s. At the time of McCains birth it was and American Territory. We owned it whether McCain was born on a military base or not, If the Hospital he was born in was within 5 mile on either side of the canal it was within US Territory. The claims aginst McCain are also moot, his Father was an Officer of the US Navey working there as an Official of the US Military. His mother was also an American Citizen.
That thing that Conngress adopted, is not binding.
Barak Obama’s father was a British Subject and his mother was not qualified as a citizen because she was under age to
estabilish her rights as a Citizen she had to be a Citizen for 6 years following her 14th birday. She was only 18 therfore could not pass her Citizenship to her son, even if the Citizen ship was able to be past through the mother linage, which it seems by the posts above that it can not be passed from Mother to child. So Barak is not eligable by way of his father being a British Subject.
What worries me is that Mr. Obama, with out being certified by the electoral Collage or congress, he has been breifed on all the Ultra Top Secret information and is being treated as though he were already The President. All through the election there was talk that, if he were not running for POTUS he would never be a ble to pass a security investigation. His shady associations and lack or trancparency about his past, would immediatly disqualify him for a security clearance. What does he now know that could put us all at risk. I don’t trust the man, or his intentions. This needs to be resoved on so many different leavels.
by Tami on Nov 27, 2008 at 11:41 am
If he loses he needs to be put away some place safe. Where what he know can not be used aginst Our Country. He aslo participated activly in the elections in Kenya. (on our dime) While he ws a seating US Senator, that he was not qualified for either.
The SCOTUS needs to deal with this onc and for all. I pray that they don’t drop the ball. This is their billiwack and they need to rule on this subject so that we never have this problem in the future.
Barak Obama does not have sole loyalty to this country. On more than one level. He is disqualified, because of his fathers Nationality; his mothers lack of leagal Citizenship, (Moot) she was not old enough to confer Citizen ship on her son, and then she had him adopted by an Indonesian Subject (National). He used the passport issued to travel to Packestan in his 20′s, and I undertand that that passport is llegal for the term of 4 of 6 years. He was deffinatly over the leagal age to chose his Citizenship. All of this would make him at best a “Naturalized Citizen” and “Not a Natual Born Citizen”. No matter how you interperate the law he does not qualify.
Joe biden was not a Presidental canidate so it’s either John McCain, (if he is demed elagable) or which ever of the other canidates that are demed to qualify and recived the next highest vote count. Bob Barr Could probably gain the position by default.
by Tami on Nov 27, 2008 at 11:42 am
Unless the SCOTUS rules on this, ALL of your definitions, wantings, and rantings are meaningless.
You are not Constitutional law professors so stop pretending you know what the SCOTUS will do.
THEY are the ones will define this case IF THEY EVEN DECIDE TO HEAR IT. THEY and ONLY THEY have the power to define what “Natural Born citizen” means. Don’t get your hopes up, kiddies.
by The Bear on Nov 27, 2008 at 1:02 pm
In Reply to The Bear:
That’s the beauty of the Good Old U.S.A. – we don’t HAVE to be “professors”. All we have to do is be able to read, absorb the meaning of what we read, and apply it logically to the situation under discussion. And until the Liberals turned our schools in Socialist indoctrination centers, our citizens were educated enough to be able to do so.
Of course we can’t predict what SCOTUS will do – but unless we are willing to stand quietly by with thumbs in ears while a bloodless coup is perpetrated upon the American People, we had better be well-informed on what is happening because, quite obviously, we’re being HAD.
The whole purpose of the Constitution is to keep the power in the hands of the People, so it is not just our Right to demand that his eligibility be verified – it is our DUTY to do so.
Sorry, Mr. Bear, but this is just too important, and this citizen, anyway, is NOT gonna take the lazy way out, and just sit down and shut up about this. And for those who are willing to give America over to an illegal government, I offer Samuel Adams’ words “…Crouch down and lick the hands which feed you. May your chains sit lightly upon you, and may posterity forget that ye were our countrymen!”
by Dee in Texas on Nov 27, 2008 at 1:41 pm
Who is a natural-born citizen? Who, in other words, is a citizen at birth, such that that person can be a President someday?
The 14th Amendment defines citizenship, As usual, the Constitution provides the framework for the law, but it is the law that fills in the gaps.
Currently, Title 8 of the U.S. Code fills in those gaps. Section 1401 defines the following as people who are “citizens of the United States at birth:”
Separate sections handle territories that the United States has acquired over time, such as Puerto Rico (8 USC 1402), Alaska (8 USC 1404), Hawaii (8 USC 1405), the U.S. Virgin Islands (8 USC 1406), and Guam (8 USC 1407). Each of these sections confer citizenship on persons living in these territories as of a certain date, and usually confer natural-born status on persons born in those territories after that date. For example, for Puerto Rico, all persons born in Puerto Rico between April 11, 1899, and January 12, 1941, are automatically conferred citizenship as of the date the law was signed by the President (June 27, 1952). Additionally, all persons born in Puerto Rico on or after January 13, 1941, are natural-born citizens of the United States. Note that because of when the law was passed, for some, the natural-born status was retroactive.
by Seablade on Nov 27, 2008 at 7:02 pm
In Reply to David Hoobler:
The I&N Act as noted in your post 11/25 cannot apply to BO at all because:
(a) uses the phrase “subject to the jurisdiction”, which is defined as “owing allegiance to no other”. His website says he was a British subject at birth, automatically owing such allegiance.
(b)he’s not an aboriginal
(c-d-e-g-h) must be born outside the US and his campaign insists he was born in Hawaii
(f) not of unknown parentage
None of these apply.
by marcyr on Nov 27, 2008 at 11:08 pm
The simple way to understand what ” Natural Born citizen” means
A person born inside the US to a father who is a citizen of another country ( Kenya) has dual citizenship at the time of birth is a US citizen but not Natural and cannot hold the job of President or Vice president
They must be at least one generation away from the noncitizen
in other words. Obama cannot be President but IF he was born in Hawaii and Michelle was born in the US than one of thier daughters can be President
The US military even required this for years in order to become a commissioned officer
by Holly on Nov 28, 2008 at 11:32 am
In Reply to The Bear: Are you by any chance related to the Russian Bear; the symbol of the former United Soviet Socialist Republic? Fools like you think that because you have kissed Obama’s ring, that you will be safe under his now, quite obvious, foreign dictatorship. Don’t get your hopes up kiddo! Many who supported Obama, like his typical racist grandmother, and Rev Wright, for example will get thrown under the bus. Be careful crossing the street, Bear, when we have a foreign-born POTUS. You never know when the bus with you name on it is coming. LOL pal.
by US Patriot on Nov 28, 2008 at 11:47 am
Why was everyone making a big deal over McCain’s natural born status when under law of nations and natural law he was a natural born american? John McCain is who he is because of his father and not because of some silly law from clueless pols.
by Craig on Nov 28, 2008 at 8:05 pm
Mr. Madison scores with history and facts but unfortunately, a great deal of fiction has evolved from U.S. v. Wong Kim Ark that will ultimately wipe away our critical history of separation from British common law. Who would have thought in the year 1866 that today dual citizenship and allegiances would not only be commonplace but solely sanctioned by acts of the judiciary?
by Prof. Zale on Nov 29, 2008 at 12:41 am
I understand that some people are arguing the Obama is a 14th amendment citizen because he was born in Hawaii.
The way I read the article he is not even a 14th amendment citizen; he was not born subject to the jurisdiction of the US because his father was a British citizen/subject; Obama was born owing allegiance to Great Britain.
Read particularly the quoted comment of the Framer of the 14th amendment, Bingham.
by Sid Davis on Nov 29, 2008 at 12:50 pm
Very highly recommend this piece by Dr. Edwin Vieira, Jr., Ph.D., J.D. October 29, 2008 NewsWithViews.com
http://www.newswithviews.com/Vieira/edwin84.htm
To Law Professor on 11/28/2008 at 11:01:
Move on? Never. This will never end before he is out of the game. This is much bigger than Watergate.
by El Buggo on Nov 29, 2008 at 1:50 pm
As the framers used the term, a natural born citizen is a person who at birth is born only and entirely an American Citizen. That’s the Occam’s razor; an unconflicted native birth arising naturally from American soil with no competing identity or loyalty.
This is something Barack Obama is not and has never been.
Obama was born a British Citizen; that he was also an American Citizen does not mitigate.
by willem on Nov 30, 2008 at 11:39 am
Certain Truths are self-evident.
The Article II use of “native born citizen” is self-evident: an unconflicted native birth arising naturally from American soil with no competing identity or loyalty.
It makes no sense the framers would have meant anything else, especially within the context of Article II, having crafted an independent, rigorous and specifically restricted constitutional process for selecting the president of the states.
The framers required the presidency be restricted to someone who at birth was only and entirely an American citizen, thus their use of the term “Natural Born Citizen.” Only one exemption to these requirements was made.
An awkward naked fact stands unchanged. Obama was a British Citizen at birth.
Preventing British Citizens from ascending to the office of POTUS was an absolute priority and overarching concern of the framers. Of all competing citizenships and nationalities, the framers most passionately intended to exclude British Citizens from presidential eligibility, only allowing those who were also American Citizens at the time of the adoption of the Constitution to be eligible.
In this grandfathering, the framers implicitly defined themselves as not natural born citizens for the purposes of Article II.
The not natural born who were also American Citizens the time of adoption of the Constitution are long buried.
We shall see next Friday where the matter goes next.
by willem on Nov 30, 2008 at 12:49 pm
In Reply to Proff: I reckon if we had really adopted jus soli as kool-aid drinkers claim, then Indians, Asians and Blacks would all been citizens of the United States since 1790 (BIG YAWN).
Who ever hear of a country under jus soli demanding allegiance and consent to the nation in advance! LMFAO!
Secy. of State William Wharton said the United States “as a nation could never claim the British doctrine of citizenship; for native citizenship in this country can only be defined under the laws of the several States where our natives are born and reside.”
by JimAZtec on Nov 30, 2008 at 12:52 pm
Certain Truths are self-evident.
The Article II use of “Natural Born Citizen” is self-evident: an unconflicted native birth arising naturally from American soil with no competing identity or loyalty.
It makes no sense the framers would have meant anything else, especially within the context of Article II, having crafted an independent, rigorous and specifically restricted constitutional process for selecting the president of the states.
The framers required the presidency be restricted to someone who at birth was only and entirely an American citizen, thus their use of the term “Natural Born Citizen.” Only one exemption to these requirements was made.
An awkward naked fact stands unchanged. Obama was a British Citizen at birth. That he was also an American Citizen does not mitigate. He was a British Citizen at birth whether or not other citizenships were conferred.
Preventing British Citizens from ascending to the office of POTUS was an absolute priority and overarching concern of the framers. Of all competing citizenships and nationalities, the framers most passionately intended to exclude British Citizens from presidential eligibility, only allowing those who were also American Citizens at the time of the adoption of the Constitution to be eligible.
In this grandfathering, the framers implicitly defined themselves as not natural born citizens for the purposes of Article II.
The not natural born who were American Citizens at the time of adoption of the Constitution are long buried.
We shall see next Friday how our fate unfolds.
by willem on Nov 30, 2008 at 1:02 pm
I am grateful both Donofrio v. Wells and Wrotnowski v. Bysiewicz are now before the court.
All I desire is what every American should want; a full, fair and impartial hearing of the question.
Our founders feared the internal formation of Oligarchy for good reason. If I have bias, it’s against the monopolistic role the national Republican and Democratic political parties have conspired to assume specifically in the presidential election process, a specific set of constitutional constructs which have evolved far and away from the framers designs, corrosively usurping the essential constitutional role of the Electoral College.
What sits before the court today in these two cases represents one of the few remaining matters of first impression.
This also means we have been 200+ years in the wilderness since these specific questions were last visited.
I think we are watching history in the making. Personally, I want the Constitution upheld and the practices now common to our society subordinated thereto.
I trust the court. What the court so finds is the law.
by willem on Nov 30, 2008 at 1:32 pm
Please also consider this supporting information on “natural born citizen”:
In print and widely read by the Framers and the citizens of this land at the time was a writing by Emmerich de Vattel, (1758) entitled “The Laws of Nations”. In Vattel’s work he defined Natural Citizen or Native as:
§ 212. Citizens and natives.
The citizens are the members of the civil society; bound to this society by certain duties, and subject to its authority, they equally participate in its advantages. The natives, or natural-born citizens, are those born in the country, of parents who are citizens. As the society cannot exist and perpetuate itself otherwise than by the children of the citizens, those children naturally follow the condition of their fathers, and succeed to all their rights. The society is supposed to desire this, in consequence of what it owes to its own preservation; and it is presumed, as matter of course, that each citizen, on entering into society, reserves to his children the right of becoming members of it. The country of the fathers is therefore that of the children; and these become true citizens merely by their tacit consent. We shall soon see whether, on their coming to the years of discretion, they may renounce their right, and what they owe to the society in which they were born. I say, that, in order to be of the country, it is necessary that a person be born of a father who is a citizen; for, if he is born there of a foreigner, it will be only the place of his birth, and not his country.
by Sid Davis on Nov 30, 2008 at 2:45 pm
Governor Jindal would only have a problem if his parents were not citizens. That’s the whole point.
by KK on Nov 30, 2008 at 5:09 pm
In Reply to Proff:
Yeah the Constitution is “fringe” as you call it.
What is this new Republican IDEAS Party you are ranting about? What is that? I hope not the RINO McCain, Mel Martinez, Lindsay Graham Party or this foaming at the mouth Jindal kool aide drinkers party.
I like Jindal and Sarah but the party has a lot of good people (conservatives) worth checking out and promoting in the GOP.
Some of these Jindal supporters are sounding like OBots. He is good and a conservative but calm down a little. If Jidal was running against Leo Donofrio – I would vote for Leo in a heartbeat.
by Freddy on Nov 30, 2008 at 7:12 pm
http://www.plainsradio.com/
Sunday nite Nov. 30, at 10:00PM Central time, Leo Donofrio is scheduled to be interviewed and to give an update on the status of his case before the Supreme Court which claims Obama and McCain are not natural born citizens, thus disqualified.
Anyone interested in living history might want to tune in by going to the above website and listening live.
by Sid Davis on Nov 30, 2008 at 7:30 pm
Has anyone considered, if it might be possible that the 14th Amendment overrules the Presidential eligibility clause (2.1.5)?
by Joss on Nov 30, 2008 at 8:07 pm
In Reply to Joss:
If you read the 14th amendment as described above it has two parts. One must be born in the US to be a 14th amendment citizen, and one must be subject to the jurisdiction of the US. Rep. Bingham’s, Framer of the 14th amendment is described in the above article as explaining that this “subject to the jurisdiction” phrase means not subject to the jurisdiction of a foreign power. It seems everyone ignores that additional requirement of the 14th amendment. Obama was born subject to the jurisdiction of Great Britain because of the operation of the British law in 1961 making a child born to a male citizen/subject of Great Britain and Colonies a British citizen subject to British law. Some countries do not have laws making someone born to one of their citizens while in the US an automatic citizen or their country. Someone in this category would qualify as a 14th amendment citizen because he was born subject to the jurisdiction of only the US, but this was not the case for Obama as a son of a British citizen father.
As to anyone in general it seems that “natural born citizen” and 14th amendment citizen are distinct. If you are a “natural born citizen” then you are also a 14th amendment citizen, but not all 14th amendment citizens are “natural born citizens.” Natural born citizen is the most restrictive while statutory citizen (naturalized citizen) is the least restrictive class. 14th amendment citizen is inbetween.
by Sid Davis on Nov 30, 2008 at 8:32 pm
In Reply to Sid Davis: However, Bingham’s statement is not a “requirement”, as you say, but just an opinion after-the-fact, although by someone who was actually responsible for 14A. But the actual wording of 14A does not imply anywhere that you must have allegiance solely to the US, only that there needs to be a US-allegiance. In addition, you can also easily deduce that everyone who is a “born citizen” under 14A is de facto also a “natural born citizen”.
by Joss on Nov 30, 2008 at 8:48 pm
In Reply to Sid Davis:
And I would also like to add the following:
When Rep. Bingham commented on Section 1992 and said that 1992 means 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”, he was surely right, but he did not explicitly say, is that a human being born within the jurisdiction of the U.S. of parents partially (or completely) owing allegiance to a foreign sovereignty, could NOT be a natural born citizen.
He only offered one possible interpretation of “natural born citizen”. And since his own constitutional text does not mention anything else”â€and is (by the way) a lot less elaborate”â€, it is impossible to deduce that a citizen with split allegiance can not be a “natural born citizen”.
These people obviously wrote 14A and later realized that they messed it up. If 14A weren’t this indecisive, we wouldn’t have all these opinions after-the-fact, trying to correct it, trying to explain, what they ‘actually meant’.
But if you want to “save the constitution”, you have to stick with what’s written, and you have to understand what the words mean and do not mean.
by Joss on Nov 30, 2008 at 10:04 pm
In Reply to Joss: The 1866 language of Revised Statutes 1992 remained on the books until I believe 1965 when it was changed to the 14th’s language clearly required that there could be no secondary allegiance: “All persons born in the United States and not subject to any foreign power … are declared to be citizens of the United States.”Â
Pretty clear no one considered the 14th as overriding pre-existing statute law.
by JimAZtec on Nov 30, 2008 at 10:10 pm
In Reply to JimAZtec:
I was not talking about 14A overriding statute law, but the Presidential eligibility clause. I personally think that it doesn’t”¦ it was just a question.
In any case one can’t use statute law (or comments about statute law) to bend and redefine the constitution, as one seems fit.
by Joss on Nov 30, 2008 at 10:21 pm
In Reply to Joss: The Constitution can be modified by amendment. Much of Article II has been modified by the 20th and 25th amendments. The citizenship clause gave affect to Sec. 1992 so it wouldn’t be invalidated. When Howard said the citizenship clause was by virtue of national law he was referring to Sec. 1992 of US Revised States that was in effect.
Statute law in question is no different from the constitutional provision that gives it affect which explains why it was law for 100 years.
by JimAZtec on Nov 30, 2008 at 10:38 pm
Proff has been banned. Too many complaints received. Let’s try and stay on topic with Mr. Madison’s post please. –Webmaster (Ray)
—————————–
In Reply to Proff: Could you explain what you mean? What are you saying is being confused with the law?
by bioqubit on Nov 30, 2008 at 10:51 pm
In Reply to Joss:
Of course this is an interesting topic. In the 14th amendment, the “subject to the jurisdiction” phrase is less well understood, and more ambiguous, certainly, than the born in the US part. To my mind being subject to the jurisdiction of the US and simultaneously being subject to the jurisdiction of another country negates being subject to the jurisdiction of the US. I see it as absolute jurisdiction by the US.
if you look at the allegiance part of citizenship, then multiple jurisdictions dilutes that allegiance. You could easily be torn between two masters, so I could see the logic for not granting 14th amendment citizenship to someone just because he was born in the US without any other condition to be met. If the only condition was being born in the US, what would be the point of having the “subject to the jurisdiction” phrase. So that phrase must mean something and must act to exclude someone that is tainted. Can you imagine in a war between to nations someone with split allegiances being trusted by his fellow soldiers?
I think that the subsequent statements by Bingham and subsequent statutes give an indication that the Framer of the 14th amendment did not want any taint, even a partial taint from split allegiances arising from multiple jurisdictions having sway over a potential citizen.
by Sid Davis on Dec 1, 2008 at 12:07 am
So here is a matrix:
(1)Father US citizen, Mother US citizen
(a)Child born in US is Natural Born and 14th amendment citizen
(b)Child born outside US is not Natural Born?? and not 14th amendment citizen.
(2)Father US citizen, Mother Foreign citizen
(a)Child born in US is Natural Born and 14th amendment depends on whether jurisdiction over child is claimed by foreign govt.
(b)Child born outside US is not Natural Born?? and not 14th amendment citizen.
(3)Father foreign citizen, Mother US citizen
(a)Child born in US is not Natural Born and 14th amendment depends on whether jurisdiction over child is claimed by foreign govt.
(b)Child born outside US is not Natural Born and not 14th amendment citizen.
(4) Father foreign citizen, Mother foreign citizen
(a)Child born in US is not Natural Born and 14th amendment depends on whether jurisdiction over child is claimed by foreign govt.
(b)Child born outside US is not Natural Born and not 14th amendment citizen.
All others can only become citizens by statute (naturalized).
Where I have question marks I am not sure.
Please comment.
by Sid Davis on Dec 1, 2008 at 1:14 am
In Reply to Sid Davis:
Actually what you wrote here is not legally correct. You need to re-read the docs and get it correctly.
There are only 2 major ways to be a US citizen:
- Born in America (Jus Solis, born of the soil) OR Born to American Parents overseas (Jus Sanguis). All are considered to be natural born citizens.
- Naturalized which is not considered natural born citizens.
I’m sorry, what you wrote is not correct and true.
by Mr. T on Dec 1, 2008 at 6:59 am
In Reply to Mr. T:
You are right that “naturalized citizens” can’t be considered “natural born citizens”.
And you’re also right that, when you are a “born citizen” under 14A (on US territory) and under US-jurisdiction (anywhere in the world where the US has jurisdiction”â€except where it’s constricted by laws), you’re also a “natural born citizen”, no matter what some pundits might want you to believe. The text of 14A does not allow any other interpretation. It does not allow the notion that e.g. “exclusive US allegiance” is necessary to be “natural born”. This logically means that if you’re born in the US to at least one naturalized immigrant parent, you’re automatically a “natural born citizen”, because you’re a “born citizen under US jurisdiction” according to 14A, which is the same as “natural born citizen”. (The latter can easily be deduced from 14A.)
(A child born in the US to two foreign tourists or illegal immigrants is therefore a “born citizen”, but not according to 14A, because he was not born under US jurisdiction, therefore he can’t be a “natural born citizen”.)
But there is no strict (patrilineal) ius sanguinis in 14A. Nowhere does the 14A-text say that you need to have two US parents or a US father to be a “born citizen” (and therefore a “natural born citizen”), although that’s what many persons try to read into 14A in order to have a cleansed interpretation of the highest form of US citizenship, not contaminated by alien elements at all. (But that’s impossible to achieve with 14A.)
Strict statutes of ius sanguinis are however existent in US Code. If you’re born to two US parents on foreign soil, you’re automatically a US citizen, if other laws do not constrict it somehow (which is possible), more specifically a “born citizen”, but you’re not a “natural born citizen”, because you’re a citizen by some law and by descent, not under the Constitution that has a combination of primary ius soli (territorial aspect, US soil) and secondary ius sanguinis (under the jurisdiction thereof). So you’re wrong when you say that children born to US parents on foreign soil are “natural born citizens”. They are not.
by Joss on Dec 1, 2008 at 9:00 am
In Reply to Mr. T:
I am working to get this all clear for my own satisfaction.
Leo Donofrio in his lawsuit challenging Obama and McCain wrote this:
[quote]He (McCain) wasn’t born on United States
soil and he wasn’t naturalized in the United States. Instead,
McCain may claim citizenship from 8 USC 1403(a):
“Any person born in the Canal Zone on or after February 26, 1904, and whether before or after the effective date of this chapter, whose father or mother or both at the time of the birth of such person was or is a citizen of the United States, is declared to be a citizen of the United States.”Â
McCain is in the class of citizens who obtain their citizenship at birth, but not from the Constitution, but rather federal statute. In Rogers v. Bellei, 401 U.S. 815, 828 (1971). The Supreme Court stated:
…[C]children born abroad of Americans are not citizens within the citizenship clause of the 14th Amendment.””¦ “To this day, the Constitution makes no provision for jus sanguinis, or citizenship by descent… “Our law in this area follows English concepts with an acceptance of the jus soli, that is, that the place of birth governs citizenship status except as modified by statute.” Id. at 828.
So, not being born on US soil, McCain cannot be a “natural born citizen”.[/quote]
I don’t understand the basis for your statement. Please explain further.
It looks to me like getting your citizenship by being natural born and getting your citizenship from the 14th amendment are different, but have some overlap. It seems clear to me that you can get citizenship also a third way, by a Congressional Statute, such as in the case of being born in the Panama Canal Zone to US parents or being naturalized.
Some things are obvious like the requirement of the 14th amendment that you be born in the US, but it is also possible that you might not get US citizenship even if your are born in the US if you are born subject to the jurisdiction of a foreign power.
Some things are not as clear to me on the issue of natural born. Is it necessary to be born in the US to have the possibility of being a natural born citizen? If born in the US then there appears to be a further test, and that is the citizenship of your father (or maybe of both your parents) to make you natural born.
It seems to me that having natural born citizen status is the most restrictive, and the purpose being that the Founders wanted someone whose loyalties they could fully trust. If I were writing the Constitution today to maximize the likelyhood of full loyalty from the President, I would specifically exclude someone born outside the US or born inside the US if either parent were not a US citizen. I think that is almost what they did in the Constitution, but that they may have allowed for being born in the US to a US father and non US mother to qualify you.
by Sid Davis on Dec 1, 2008 at 10:28 am
In Reply to Sid Davis:
Donofrio’s claim is false: 8 USC §1403 came into effect after McCain’s birth. He’s only retroactively a US citizen, and only a citizen by statute, not under the constitution. At birth he was a citizen of Panama and Panama alone, because in his specific case, the Insular Cases overruled the Naturalization Act. (If I remember correctly.)
Unlike McCain, 1968 Presidential nomination candidate George Romney was a US citizen, born on foreign soil (Mexico) to US parents. No law overruled this at the time of his birth. He didn’t receive Mexican citizenship due to their strict ius-sanguinis-policy at the time. But Romney wasn’t a “natural born citizen” either, because he was born on foreign soil.
by Joss on Dec 1, 2008 at 10:42 am
I think Craig said it all when he wrote below: “McCain is who he is because of his father.”
No law can question or take take that away.
Also, some of you miss the point with the 14th … it doesn’t make anyone a citizen, only defines who might be considered citizens of the nation when born into the body politic. The actual law of birth citizenship still remained with the states as evidenced by the different state laws enacted after the adoption of the 14th that had nothing to do with jus soli.
Consult House Report #22 issued by Congress in 1871 where Bingham confirms the 14th amendment “did not change or modify the relations of citizens of the State and the Nation as they existed under the original Constitution.”
by JimAZtec on Dec 1, 2008 at 11:15 am
From Bouvier’s Law Dictionary 1870 ed.
It uses the term “native citizen”-
“A person born within the jurisdiction of the united states, whether after the declaration of independence or before, if he did not withdraw before the adoption of the constitution; or the child of a citizen born abroad, if the parents have ever resided here; or the child of an alien born abroad, if he be in the country at the time his father is naturalized.”
by Slade on Dec 1, 2008 at 11:17 am
In Reply to Sid Davis:
Furthermore, you write: “It looks to me like getting your citizenship by being natural born and getting your citizenship from the 14th amendment are different, but have some overlap.”
This is a non-argument, because the Constitution doesn’t explicitly explain what a “natural born citizen” is, so there is nothing there that the 14th Amendment (14A) could overlap or collide with. Therefore some people are tempted to believe that it would be illogical to explain “natural born citizen” anyway, because what would be the use of defining something that is “natural by and at birth”? So we read layperson’s opinions like the one by Willem below, who believes that it is “self-evident” what a “natural born citizen” is, namely abc [for abc enter opinion-based explanation at will].
But nothing is ever “self-evident” in sciences, in history and in law. A definition of the term “natural born citizen” in the Presidential qualifications clause (II.i.5) therefore needs to be deduced from the Constitution, and the only text in the Constitution that does that, is 14A, and “natural born” can be derived from 14A easily, which is why it does not only “overlap” with II.i.5, but completely accords (see below).
It’s always funny to see people trying to be conservative by being liberal. You don’t conserve the Constitution and treat it conservatively by inflating the whole issue to unhealthy proportions, as also the article by P.A. Madison aptly demonstrates”â€although I salute the manifest learnedness and knowledge”â€, by digging up some statements, opinions, court proceedings, court rulings etc., who are all after-the-fact. This would only be admissible, if the Constitution itself didn’t provide us with an explanation of “natural born citzen”. But it does “†implicit in 14A.
The clue is the combined mention of “born citizens” and “naturalized citizens” in 14A “†disregarding for the moment the “under the jurisdiction thereof”-sentence. A “naturalized citizen” is by definition (because it is implied in the term “naturalization” itself) a “natural citizen” at the end of the naturalization process, a citizen “made natural”. Since “born citizens” and “naturalized citizens” must AT LEAST have the same rights, a “born citizen” is automatically also a “natural citizen”, because a “naturalized citizen” is a “natural citizen” as well. Therefore the first category of citizens mentioned in 14A are those who are “born”, who are “citizens” and who are implicitly “natural”, i.e. “natural born citizens”.
The sentence “under the jurisdiction thereof” does not say “under the sole jurisdiction thereof”, which is why a citizen with an additional foreign allegiance can de facto and de iure be a “natural born citizen” as well.
Going back to the original Presidential qualifications clause, we now have a definition of “natural born citizen”, exclusively derived from 14A. The grandfather clause however is inapplicable, because it was a mere historical means to an end and is now forfeited. It could actually be erased from the text, because it has no significance anymore. Furthermore, it doesn’t say anywhere in II.i.5 that there must be a prerequisite sole allegiance to the US. So vice versa, II.i.5 does not collide with or overrule 14A either.
This very conservative sola scriptura deduction of the constitutional definition of “natural born citizen”, which utilizes the explanatory term “natural citizen”, furthermore accords completely with the letter by John Jay to the Philadelphia Convention, which is a document that was not written after-the-fact, but which is inseperably connected to the authoring of the Constitution. Jay only explicitly mentions “natural born citizen”, but clearly implies the “natural citizen” as a second category, which would logically also include the “naturalized citizens”. This we can safely state, because Jay actually wrote “natural BORN citizen”, with emphasis on the born. This word “born” is therefore a signifier to distinguish “natural born citizens” from other citizens, namely those who are merely “natural citizens”, without having been born on US soil, the immigrants.
Therefore Donofrio has no case, not in a million years. His primary errors are furthermore categorical. First of all he utilizes a forfeited grandfather clause in II.i.5 to modify the term “natural born citizen”, which is sufficiently explained by 14A and (if one allows its inclusion in the argument) also by Jay’s letter (see above). Secondly, he ignores the fact that the “grandfather clause” deals with a special category of citizens, which was introduced as a limited means to an end for the Framers. It is a categorical error to use a special class of citizens”â€citizens, who are “unnatural”, if I may say so”â€to infringe upon the Framers’ ideal class of citizens, especially since the wording of the grandfather clause itself does not in any way support Donofrio’s argument, and especially also because it is forfeited and has no relevance, now and any time in the future.
So Obama is one hundred percent eligible, and one of the first things he should do as President is to honor McCain in a more profound way than with this preposterous Senate resolution S.Res.511. He should suspend or abolish the laws that rule McCain a non-citizen at birth. A hero like McCain does not deserve this.
by Joss on Dec 1, 2008 at 11:58 am
Strange…one of Obama’s supporters in Chicago was pushing for repeal of the natural born citizen clause in 2006 when he became a US Senator.
http://www.freedomsphoenix.com/Find-Freedom.htm?At=042008
by Slade on Dec 1, 2008 at 2:53 pm
In Reply to Joss:
All natural born citizens are natural citizens, but not all natural citizens are natural born citizens. Yet, aliens, having become nationalized cannot attain to the Office of the President or Vice President.
The Grandfather clause deals squarely with, and highlights the Framers’ intent concerning “under jurisdiction thereof”. It recognizes the Framers of the Constitution were British subjects and demands future Presidents to only one jurisdiction and only one allegiance. Any competing jurisdiction and allegiance at birth is not allowed.
by Hugh on Dec 1, 2008 at 3:30 pm
What if Britain passed a law conferring British Citizenship to everyone born in the US? Theoretically, we could not stop them from doing this. Technically everyone would be born with Dual Citizenship. Who would be a natural born citizen then?
by Frank on Dec 1, 2008 at 4:42 pm
To further complicate the issue:
What if BHO Sr was not his biological father? What if that is just what he tells everyone because if his real father were known, it might have cost him the election? What if he kept it a secret because his real father is Malcolm X?
Maybe that is why the DNC and everyone else doesn’t want to touch this.
If Obama can make it to Jan 20 and then show that his mother was Anne Dunham and his father was Malcolm Little, this would make him a natural born citizen.
There is not marriage certificate shown for Anne and BHO Sr. If there was no marriage and it was only the story they told everyone to keep Obama safe from Malcolm’s enemies, then Obama’s father was not a British citizen.
Maybe they know this but don’t want this info to get out because he lied about his father. After Jan 20, the press and the people will make light of it and go on with life. Maybe that is why they are trying not to talk about it. They believe he is a natural born citizen but doesn’t want to make his birth certificate public because it would reveal who is real father is.
by LInda on Dec 1, 2008 at 4:47 pm
In Reply to LInda:
If Obama Sr is not Obama Jrs father then why is there so much knowledge of Obama in Kenya. Why has Kenya celebrated his presidency. Why did Kenya had a national holiday.
So clearly there is no controversy about Obama’s birth or father.
Obama Jr was born in Hawaii his father was Obama Sr.
by Anonymous on Dec 1, 2008 at 5:49 pm
Here is a interesting description of what is known from the Constitutional Convention about Article II, Section 1, Clause 5 (containing the natural born citizen provision):
http://faculty.maxwell.syr.edu/jyinger/Citizenship/history.htm
It is lengthy covering much territory, so I do not present any summary. Also, the author seems to be on a mission, as a father of adopted children, to see the natural born citizen provision modified, so the has ulterior motives. Nevertheless, the article is very informative.
by Sid Davis on Dec 1, 2008 at 6:09 pm
In Reply to LInda:
Actually it was/is rumored and could be possible that the communist leader Frank Marshal Davis who is known to be Obama’s grandfather’s friend and Obama’s Mentor, could actually be Obama’s Father, this could be reason for hiding the birth record, Obama’s mother seems to have slept around a bit…, so who really knows, and short of DNA tesing we never really will…
there is a LOT of good info about this birth stuff at
http://www.ObamaNotQualified.com
by Keep The Change on Dec 1, 2008 at 6:50 pm
In Reply to Joss:
First Joss stated, “The grandfather clause however is inapplicable, because it was a mere historical means to an end and is now forfeited. It could actually be erased from the text, because it has no significance anymore.”
Then later Joss stated, “This very conservative sola scriptura deduction of the constitutional definition of “natural born citizen”Â, which utilizes the explanatory term “natural citizen”Â…..
Whew, I got whiplash from that 180. How much more UNconservative can you be? Erasing parts of the Constitution? That is NOT sola scriptura.
The grandfather clause was put in precisely to differentiate between those with dual citizenship and those with sole allegiance to the U.S. and under no other jurisdiction. And, I might add, the issue of sole allegiance is pretty darn important in these days of radical terrorism which uses takia deceit. That is sola scriptura deduction.
by MrsD on Dec 1, 2008 at 7:34 pm
In Reply to MrsD:
You wrote: “How much more UNconservative can you be? Erasing parts of the Constitution? That is NOT sola scriptura.”
You’re right. And as a matter of fact, I would never erase it either, because the Constitution is a proud historical document that shouldn’t be tampered with. But that doesn’t change the fact that the clause is forfeited. I wrote this sentence to make absolutely clear that today the grandfather clause has no legal relevance anymore. Maybe I should have written: “It could AS WELL be erased”. In any case I apologize if these words caused discomfort.
Then you wrote: “The grandfather clause was put in precisely to differentiate between those with dual citizenship and those with sole allegiance to the U.S. and under no other jurisdiction.”
This is totally wrong, and it’s the same error that Donofrio has made, that Hugh and others have made a few posts before. You’re not reading the text, you’re not understanding the Constitution. You’re talking about the Framers’ intention behind the “grandfather clause”, and the only intention behind it was to have a means to an end, so that one of them could become President. It doesn’t say anything about allegiances and/or jurisdiction, let alone SOLE allegiance. If it ever meant to differentiate between classes of citizens, it implied a class of citizens that would be extinct after one or two generations, as Donofrio has said himself: this grandfather clause was ad iusum of the Framers and Founding Fathers, and of them only. In any case it wouldn’t differentiate anymore, because it’s forfeited.
by Joss on Dec 1, 2008 at 11:06 pm
In Reply to Joss:
Joss said “You’re talking about the Framers’ intention behind the “grandfather clause”Â, and the only intention behind it was to have a means to an end, so that one of them could become President.”
Then if sole allegiance wasn’t important, why couldn’t one of the Framers become President without the use of the grandfather clause? Why was the clause needed in the beginning?
by MrsD on Dec 1, 2008 at 11:30 pm
In Reply to the main article:
It should be clear to every reader that neither the Constitutional Presidential eligibility clause nor the letter by John Jay reads “natural-born citizen”, but “natural born citizen”, without the hyphen. Inserting a hyphen (like in Madison’s article) connects “natural” and “born” to the compound “natural-born”, as if it were one adjective or meant something like “naturally born”. But it’s not a compound. The “natural” is neither an adverb (like the “well” in the compounds “well-known” and “well known”), nor is “natural” a signifier for “born”. (Based on the fact that John Jay emphasized “born”, and not “natural”, it would actually be the other way round: “born” signifies and/or elevates “natural”.)
So “natural born citizen” is simply “natural” (adj.) plus “born” (adj.) plus “citizen” (n.). Any falsification (hyphenation) can lead to misunderstandings. It could create or amplify bias toward a specific interpretation of the term.
by Joss on Dec 1, 2008 at 11:55 pm
In Reply to MrsD:
You asked: “Why was the clause needed in the beginning?”
As a means to an end. That was their intention. They wanted (and needed) to become President. That’s the only reason for this clause. One should not confuse intention and motivation: The former follows, the latter precedes.
Their intention is clear: become President.
Their motivation? Motivation is irrelevant. The text itself is important, what it means, what it wants to achieve. But fine, let’s talk about motivation.
If I remember the available historical sources from the Convention correctly, all the Framers did was voice concerns about foreign influence on the administration. They wanted to restrict foreign influence, yes, but as far as I know, nobody of the Framers said that they wanted to eradicate foreign influence completely. Some even called for equal rights for all citizens, regardless of how they became (natural) citizens, whether by birth or by naturalization.
However, one has to keep in mind that the majority of these concerns were voiced at a time when the Convention still planned on the legislature as the body that would be electing the President. When the election process was transferred on the Electoral College, the situation changed, because the legislature with its additional foreign allegiances would not play a big role anymore in determining the Presidency. That’s when they added the term “natural born citizen” from John Jay’s letter. Yinger has called it a “symbolic”. I don’t agree.
But in any case, there are no sources, which imply or explicitly state that they wanted to eradicate foreign jurisdiction completely and prevent double allegiances at any cost.
They simply realized they were not “natural born citizens”. At that time there was not a single “natural born citizen” of the US. This class of citizens would only come into existence after the adoption of the Constitution. Independent of what “natural born citizen” means, independent of the Framer’s motivations, they knew they could never be “natural born citizens” of the US, because they had already been born. The adoption of the Constitution is the terminus post quem with regard to the citizen class of “natural born citizens”.
But in any case, if they had wanted to prevent double allegiances and to ensure sole US allegiance for “natural born citizens”, they would have written it into the Constitution. But they didn’t. They also didn’t add it into the 14th Amendment. It only says “under the jurisdiction thereof”, not “under the sole jurisdiction thereof”. They knew very well that there would be double jurisdictions and double allegiances at birth for US citizens after the adoption of the Constitution. Still, they chose to not include any rules in their texts that were more specific in this context. There’s nothing in the Constitution or 14A that rules out these double jurisdictions, allegiances and loyalties.
by Joss on Dec 2, 2008 at 12:34 am
In Reply to Joss: I don’t think there was any established custom during the eighteenth century over the use of the hyphen. Adams used the hyphen when writing natural-born, others can be found omitting it when writing “thirty five.” Writers pretty much equally used and omitted the hyphen from 1788-1840.
The real question in my mind is, why didn’t they simply use “native born” if the qualification was intended to merely mean born within the limits of the nation? Native born citizen was proposed during the convention as the qualification but was not adopted. hmmmmm.
by Craig on Dec 2, 2008 at 12:36 am
Joss said: “They also didn’t add it into the 14th Amendment. It only says ‘under the jurisdiction thereof’, not ‘under the sole jurisdiction thereof’.”
What? It says “subject to the jurisdiction thereof.” Being a subject and under or within the jurisdiction is two different conditions. Within a jurisdiction has only nonbinding affect; subject to a jurisdiction is binding that has immediate affect. It’s like being within the jurisdiction of a court, but the court cannot exercise jurisdiction over you until you are made a subject of the jurisdiction through process of law.
by Craig on Dec 2, 2008 at 12:50 am
In Reply to Joss:
Joss, Can you think of any nefarious plots by foreign countries that would exploit a ruling of “natural born citizen” being defined to include those born in the U.S. to a non-citizen parent?
I am concerned about precedent.
by Anonymous on Dec 2, 2008 at 1:02 am
In Reply to Craig:
(1) You’re correct on the hyphen’s usage, but that’s not what I meant. I meant that the relevant texts here, i.e. the term in the Presidential eligibility clause and its precedent in Jay’s letter did not use the hyphen. (At least that’s how they write it on official government websites.) Adding a hyphen is a falsification of the original sources.
(2) You can be “native born”, if both your parents are foreigners. Any child born in the US e.g. to foreign visitors would be a “native born” US citizen (excluding certain children, e.g. those of diplomats). I don’t see how a child born to two foreigners would be born under the jurisdiction of the US. The child is born INTO the (partial) jurisdiction of the US, but not UNDER it, if I understand it correctly. If one or both of the parents had been naturalized, then yes, the 14th Amendment would apply, which would make the child more than merely “native born”, namely “natural born”.
But I don’t know if this argument is even valid, because I don’t think that “native born citizen” is mentioned anywhere in the relevant Constitutional sources.
by Joss on Dec 2, 2008 at 1:02 am
In Reply to Anonymous: That was me.
by MrsD on Dec 2, 2008 at 1:06 am
In Reply to Anonymous:
If none of your parents is a US citizen, you may be a “born citizen” of the US by statute (8 USC §1401a, I think), but not a born citizen according to the 14th Amendment. You would not be allowed to become President.
If one of your parents is a US citizen, it will depend on what the SCOTUS rules. Obama is the first President-Almost-Elect, who has one foreign parent, and therefore it would be wise of the SCOTUS to hear Donofrio’s and Wrotnowski’s cases.
I think they are going to rule in favor of Obama, since (a) the 14th Amendment applies here, and (b) the 14th Amendment defines “natural born citizen”. But please mind, this is just my interpretation, and I could be wrong”â€although I think I’m not.
As for the nefarious plot. Sure it’s possible. Anything’s possible. Let’s construct something really bad: A young male terrorist immigrates to the US, without anyone knowing his terrorist past; he is naturalized as a US citizen; he becomes a US news correspondent in his home country, and is secretly still in the tank for the terrorists; he stays there for many years, long years of further indoctrination; he marries a local woman, a non-US citizen. She becomes pregnant, they move to the US just in time for her to have the baby on US soil. The child would then be a “natural born citizen” of the US and be eligible for President. They all move back to his home country; indoctrination of the child; child is now an adult, moves back to the US and starts a political career, which eventually leads him to the presidency. A terrorist in the White House.
So yeah, it’s possible. But then”¦ everything conceivable is possible. Although I don’t know about warp drive.
by Joss on Dec 2, 2008 at 1:20 am
In Reply to MrsD:
Ah, okay. As for the record: At the moment”â€and although I think Obama would be a good President”â€I personally would prefer “natural born citizen” to mean a child who has been born on US territory to two US parents, with the parents not needing to be “natural born citizens” themselves. (Naturalization or US citizenship by statute would be enough.)
However, I just don’t see this meaning anywhere in the Constitution, neither explicitly nor implied.
by Joss on Dec 2, 2008 at 1:26 am
In Reply to Joss:
And even if the SCOTUS rules against Obama, he could still become President, if the SCOTUS assigns Congress to author a Constitutional Amendment, which contains a new grandfather clause, taylored specifically for Obama. That way they could ensure a stricter interpretation of “natural born citizen” for future candidates and still be able to accommodate the will of the people and a democratic election. Everybody would be happy. And it would actually boost Obama’s reputation and historical importance: By receiving his own grandfather clause, he would be written into the law and history books as the new founding father of the next American era.
by Joss on Dec 2, 2008 at 1:42 am
In Reply to Craig:
So I messed up the words. Sorry. But you can be subject to more than one jurisdiction. Cp. Obama: at birth he was under two jurisdictions, and they were both binding.
So they didn’t write “subject to the sole jurisdiction thereof” or “only subject to the jurisdiction thereof” or “subject to the jurisdiction exclusively thereof” etc.
They only wrote “subject to the jurisdiction thereof”. It amounts to the same. 14A does not exclude double subjection, allegiance etc.
by Joss on Dec 2, 2008 at 1:53 am
I have been intrigued by Mr. Donofrio’s equal-opportunity presidential disqualification theory. At the same time, I am aware of reasonably attractive arguments to show that strict enforcement of his rule could be unnecessarily harsh (particularly as applied to Mr. Obama, generally understood to have been born in Honolulu). Since then, I have been considering the possibility that one or more large exceptions to Mr. Donofrio’s rule might be proposed, the idea being to render Mr. Donofrio’s rule at least somewhat palatable to certain Supreme Court justices not yet drawn in by Mr. Donofrio’s somewhat Spartan approach to providing related policy arguments.
FWIW, I’m not unconcerned about citizenship questions arising from Obama’s years in Indonesia.
But for the moment, my question is whether an adult-age Obama can be determined to have allowed “natural born citizen” status to slip through his fingers, without actually losing his U.S. citizenship proper.
As part of this exercise, I am assuming that the U.S. Supreme Court will be loathe to consider whether acts undertaken by a child, or by an adult on behalf of that child, can have the effect of stripping that child of Constitutionally-valid natural born citizen status.
This is why I am focusing on the question of whether one, holding dual citizenship since birth in the U.S. and in at least one other country, can take any action **as an adult** which moves one from the category of “having potential for divided loyalty” into the category of “having demonstrated divided loyalty.”
I have not seen this issue discussed anywhere else. Over the weekend, I did some research on whether individual attorneys (like myself) have had any success in crafting what are commonly referred to as “amicus curiae” briefs for the purpose of introducing information and related analysis to the U.S. Supreme Court on matters currently under consideration by the justices. Bottom line–such efforts seem unlikely to bear fruit unless a “name” attorney or legal foundation is recruited to give the brief “heft” in the eyes of the justices, or perhaps more importantly, in the eyes of the law clerks who are serving the justices.
That said, I still feel like my ideas could be useful if somehow, some way, they are whispered into the ear of one of the current justices. If any of them are inclined to start hashing this issue out, there will be an enormous need for policy arguments indicating under what circumstances one who holds, or has at one time held, dual citizenship, can nevertheless be determined to possess constitutionally-valid natural born citizen status.
I would advocate a policy in which one who holds dual or multiple citizenship is not necessarily prevented from ascending to the office of POTUS so long as he or she has refrained from taking any important action as an adult such as would clearly indicate divided loyalty between the United States and another specific country in which citizenship is then held. For such an individual to do otherwise (that is, for one with multiple citizenship to deliberately take such an action as an adult) would be to forfeit, once and for all, his or her status as a natural born citizen. This despite the possibility that the act taken, in and of itself, may have been insufficient to work a full legal renunciation of U.S. citizenship. In other words, the individual in question might well remain a full-fledged U.S. citizen, but in the wake of the contravening act undertaken as adult, is no longer be eligible to ascend to, or to otherwise occupy the office of POTUS.
FWIW, based on information that has surfaced to date, I am fairly comfortable with the conclusion that John McCain is not and never was a natural born citizen as that term is used in the U.S. Constitution. That is not to say that McCain is not a citizen, or even that he was not a citizen at birth. Rather, it is to say that the geographic circumstances of his birth (outside any and all U.S. states, outside any and all U.S. territories) were not such as would bestow upon him Constitutionally-valid natural born citizen status.
We need to be prepared for the possibility that the U.S. Supreme Court will ultimately conclude, based on a full set of facts (once those facts are discovered, pursuant to federal court orders compelling disclosure to that effect) that Barack Obama no longer a natural born citizen as that term is used in the U.S. Constitution.
As indicated above, and as discussed in the following hypothetical, such a conclusion would require evidence of divided loyalty on the part of an adult-aged Barack Obama.
Consider the following hypothetical, with known or commonly assumed facts mixed in: Barack Obama was born in Honolulu of married parents, of which his mother was a U.S. citizen, and his father was a subject of the United Kingdom by virtue of his Kenyan nationality. At this point, and at least temporarily, Barack Obama is a natural born citizen. Fast forward to when Barack Obama turns 18. He is now an adult, and remains a natural born citizen. By virtue of the fact that Kenya is no longer a colony of the UK, Barack is also a full-fledged citizen of Kenya. As a dual citizen of the U.S. and Kenya, Barack now has options which, as an adult, he is fully empowered to exercise. For example, now that he is an adult, he can formally renounce his Kenyan citizenship. Since he has not renounced U.S. citizenship he has held since birth, he is free and clear to run for president of the U.S. once he attains the age of 35.
But let’s say he does nothing for the time being. He is an 18 year old adult holding dual citizenship in the U.S. and Kenya, just living his life. He enrolls in Occidental College as an out-of-state freshman, ostensibly of U.S. nationality and citizenship. Tiring of Occidental, he learns of opportunities available at Ivy League colleges and universities for foreign nationals to matriculate at a steep tuition discount, lower entrance requirements, or both. Possessing Kenyan citizenship, Obama thinks, hey, why not apply and see what happens. He fills out a Columbia application, indicates Kenyan citizenship, signs the application, and sends it to Columbia. Much to his surprise, he is accepted, and he matriculates at the age of 20 as part of Columbia’s program for accommodating students of foreign nationality. By the time Barack Obama reaches age 21, he has failed to formally renounce U.S. citizenship. By operation of Kenyan law, he loses his Kenyan citizenship. Retaining his U.S. citizenship, Barack Obama finishes his degree at Columbia, and begins living the rest of his life.
The Supreme Court will consider Barack Obama’s personal behavior between the ages of 18 and 21 to be directly relevant to the question as to whether he presently possesses Constitutionally-valid natural born citizen status. More particularly, they will be evaluating his actions during that time for any evidence of deliberate actions which are inconsistent with a desire on his part to preserve his Constitutionally-valid natural born citizen status. They will be presented with the documentation comprising his Columbia application and find where he declared himself to be a Kenyan citizen for the purpose of gaining admission and/or obtaining a break on tuition. Based on this, they will conclude that Barack Obama forfeited his previously-held Constitutionally-valid natural born citizen status. This despite the fact that Barack Obama never gave up his U.S. citizenship proper.
by Publius on Dec 2, 2008 at 6:17 am
In Reply to Publius:
There should be full disclosure of the facts concerning Obama’s birth, his school records, and his intentions relating to any dual citizenship records. If he once had a Kenyan citizenship due to his Dad but no longer, I think any actions, past or present, toward Kenya should be still examined since he definitely has relatives there. This applies even if he is born in Hawaii.
Since Obama has only shown us a Certificate of Live Birth from Hawaii his birthplace is in doubt. I think he was born in Kenya.
If McCain fails due to his birth in Panama with two American parents, Obama certainly fails if born in Keyna with one American parent.
The Supreme Court must get to the root of this issue and not hold back.
by Hugh on Dec 2, 2008 at 7:20 am
In Reply to Joss:
You are absolutely correct. But what you forget is that some of the people here have taken the election too emotional to step back and rationally review the following:
- Would it not have been easy for Mr. Bush, Mr. Mukasey, Ms. Rice and the rest of the GoP to have sang this tune?
How come even the normal right wing media aint touching this story? Would Gov. Jindal be planning a 2012 run if these “BS rumors” were true?
All I can say is that deep underneath the revulsions and anti-Obamanites message is simple oure hate.
I understand some people are still having a hard time dealing with our defeat.
But it would be safer for them to do so. Coz they is no way its going to turn good.
Throwing hard earned money at some nondescript lawyers, or to WND to ship your digital docs (9.99$ per letter is a very good business) or fanning your emotions on this drive AT THIS ECONOMICALLY CHALLENGING TIMES is a very bad idead.
But hey, let those who want to join the race do so. One cant stop the moose from leading itself to a wolf-hunt.
by Paul on Dec 2, 2008 at 8:34 am
In Reply to Hugh:
Yes. If Obama was born anywhere else than on US territory, he is ineligible anyway, and we would need Donofrio’s case only with regard to McCain, Calero (?) and Wells.
+++++++
In Reply to Publius:
The SCOTUS could however rule as well that the 14th Amendment does in principle not exclude an additional subjection to a foreign jurisdiction, and that the 14th Amendment therefore either
(a) concurs with the Presidential qualifications clause by implicitly defining “natural born citizen”
or
(b) overrules the Presidential qualifications clause if a different definition of “natural born citizen” can somehow be deduced from said clause
“â€whereas (b) would furthermore presuppose that what Donofrio does is legally sound, namely to interpret said clause (including a part of it that has legally expired) based on the Framer’s motivations and concerns, meaning that non-binding legal acts, sources and opinions would overrule the actual Constitutional text or tilt it in a much more specific way.
In these two cases Obama would be eligible.
But yours is a VERY interesting approach. I must read the post again.
by Joss on Dec 2, 2008 at 9:00 am
In Reply to Paul:
If there were ever plans to use Obama’s double jurisdiction at birth during the campaign, these plans were eliminated with Obama’s action on S.Res.511. Especially the Republicans applauded him (and the other senators like Clinton) for declaring McCain a “natural born citizen” ex nihilo, totally non-binding, a simple Senatorial opinion, based on emotional arguments from silence like: ‘The Founding Fathers would have wanted a person born abroad to two US military servants and US citizens to be a natural born citizen’.
Questioning Obama’s eligibility after such a move and such a reaction would have cost them the election for sure and much earlier. Furthermore: If a candidate is ineligible, it must be decided by the judiciary, provided that someone takes it to court. It would’ve been an arrogant move on the Republicans’ part. So their role in this respect has actually been considerate and laudable, if they ever pondered such a radical move.
But vice versa it’s not really possible to create an argument from silence: You can’t say that, because the Republicans didn’t act against Obama on this issue, it actually means that none of them thought Obama was ineligible (or everyone thought he was eligible), in other words: that there was something to it”â€unless you present at least some circumstantial evidence.
Maybe they do think (and have always thought) that the ineligibility claims were “BS”, but do we have any evidence of that?
You could as well describe the current situation with a rabbit that has completely frozen in front of a dangerous snake, depending on how you look at it. But that’s just wild, informal conjecture on my part.
by Joss on Dec 2, 2008 at 9:33 am
In Reply to Joss 12/02/2008 at 12:34 AM:
Joss stated, “They simply realized they were not “natural born citizens”Â. At that time there was not a single “natural born citizen” of the US. This class of citizens would only come into existence after the adoption of the Constitution. Independent of what “natural born citizen” means, independent of the Framer’s motivations, they knew they could never be “natural born citizens” of the US, because they had already been born. The adoption of the Constitution is the terminus post quem with regard to the citizen class of “natural born citizens”Â.
But in any case, if they had wanted to prevent double allegiances and to ensure sole US allegiance for “natural born citizens”Â, they would have written it into the Constitution. But they didn’t. They also didn’t add it into the 14th Amendment. It only says “under the jurisdiction thereof”Â, not “under the sole jurisdiction thereof”Â. They knew very well that there would be double jurisdictions and double allegiances at birth for US citizens after the adoption of the Constitution. Still, they chose to not include any rules in their texts that were more specific in this context. There’s nothing in the Constitution or 14A that rules out these double jurisdictions, allegiances and loyalties.”Â
I disagree with the 2nd paragraph. You cannot state that “if they had wanted to prevent double allegiances and to ensure sole US allegiance for “natural born citizens”Â, they would have written it into the Constitution”Â. This is purely speculation.
Go back and examine the words of the Declaration of Independence. The last paragraph states:
We, therefore, the Representatives of the United States of America, in General Congress, Assembled, appealing to the Supreme Judge of the world for the rectitude of our intentions, do, in the Name, and by Authority of the good People of these Colonies, solemnly publish and declare, That these united Colonies are, and of Right ought to be Free and Independent States, that they are Absolved from all Allegiance to the British Crown, and that all political connection between them and the State of Great Britain, is and ought to be totally dissolved;
I would contend that by the Declaration of Independence, Joss’s statement that,
“They knew very well that there would be double jurisdictions and double allegiances at birth for US citizens after the adoption of the Constitution. Still, they chose to not include any rules in their texts that were more specific in this context. There’s nothing in the Constitution or 14A that rules out these double jurisdictions, allegiances and loyalties.”Â
Is false. Every citizen in the USA at the time of the ratification of the constitution did not have double jurisdiction or double allegiance. The Declaration of Independence clearly severed all ties with the British Crown. All children of people alive in the USA at the time of the ratification of the constitution would be natural born citizens. The framers could not be natural born citizens because they had allegiance to the British Crown at Birth. There was no need for the framers to include any rules in their texts about double jurisdictions, allegiances, and loyalties. It is clear by the statement in the Declaration of Independence that all people in the US at the time of the ratification of the Constitution had no ties whatsoever with the British Crown. They had been severed.
by MrsD on Dec 2, 2008 at 10:48 am
In Reply to Joss:
Correct Joss.
Thats why this “BC” crap is really whacky to follow.
At the end, hundreds of thoiusands of people will be emotionally drained.
Meanwhile, you notice that the DEM’s have kept us busy with this BC food stuff while they have moved to set the agenda.
ITs a complete distraction thats being cleverly engineered to catch us off track as the real bills/laws/bailouts happen.
Instead of people worrying about paying more taxes (due to more bailouts and stimulus programs), here we are worrying about some BC crap.
by Paul on Dec 2, 2008 at 10:55 am
In Reply to MrsD:
The Declaration of Independence severed all ties and allegiance to the British crown.
Take Obama whose father was a British subject at his birth. Can anyone really deduce from the DOI that the Framers would consider Obama to be a natural born citizen? For example, say in 1795, someone from Great Britain who was a British loyal subject came to America, married an American citizen and had a child on American soil. The US had just ended a bloody war with GB. Was the Framers’ intention for that child to someday be POTUS simply because he was born on American soil? I think not.
The passage of over two hundred years has desensitized us from the original context of the time when Great Britain was our mortal enemy and since they aren’t now it doesn’t seem that big of a deal. But you betcha it was two hundred years ago!
Our founding fathers would have NEVER allowed a person born to a British subject to become POTUS just after having fought a bloody war with Great Britain to establish independence from the monarchy. That’s illogical.
by MrsD on Dec 2, 2008 at 11:17 am
Joss:
You know one thing I dont quite get is this:
Ralph Nader was born in the USA to immigants from Lebanon. His story is like Bobby Jindal (born in USA to Indian Immigrants) or like Lieberman (born to Polish Immigrant Jews).
Like Nader or Jindal or Lieberman, Obama was born in the USA (jus solis citizenship aka Natural Born citizens).
Ralph Nader has been on the USA Presidential Ballot 3 times, with no legal challenges as to why he should stand for office based on his immigrant parents.
http://en.wikipedia.org/wiki/Ralph_Nader
Lieberman was a VP Candidate in 2000 and nobody questioned this?
http://www.answers.com/topic/joseph-lieberman
But the clueless people still dont get it. They think that some crooked lawyers, blogs and radios full are the mediums of facts. Let them keep sending their emotions, donations and get suckered as much as they wish.
When Friday comes, expect to see a lot of gnashing of teeth and emotional emptiness.
by Paul on Dec 2, 2008 at 11:55 am
In Reply to Paul:
Paul. You are incorrectly lumping Obama, Nader, and Lieberman into the same group. There is a huge fundamental difference. Nader and Lieberman’s parents were naturalized United States citizens at the time of their births – making their children natural born citizens. Obama’s father was not a US citizen at his birth. No one is denying that – not even Obama.
by Mr. D. on Dec 2, 2008 at 12:02 pm
In Reply to MrsD:
You wrote: “All children of people alive in the USA at the time of the ratification of the constitution would be natural born citizens.”
That’s my point as well, with the addition: “All children of citizens alive in the USA etc.”. But it doesn’t say anywhere in the Constitution that it is necessary for parents of “natural born citizens” to both be under the jurisdiction of the US. To my mind, it’s not even implied in any way.
by Joss on Dec 2, 2008 at 12:03 pm
In Reply to Joss:
Exactly Joss. You are 100% correct.
Thats why Ralph Nader has been on the ballot, Lieberman has been on the ballot and JINDAL (my favorite) will be on the ballot.
Obama has a HUGE ADVANTAGE over Nader or Lieberman or JINDAL.
Obama’s mother is 100% American Citizen by birth, Grandfather 100% citizen, Great Grandfather 100% citizen, Great *2 Grandfather 100% citizen. Actually Obama is a cousin of Cheney to the power of 10. All from his mothers side. Obama’s missing father (absonded) is British/Kenyan and apart from age-10, he missed out on obama’s life.
JINDAL, LIEBERMAN and NADER’s parents were all immigrants who became NATURALIZED citizens. Their grandfathers, great grandfathers, great *2 grandfathers were all Indian, Polish and Lebanese citizes respectively.
So if JINDAL (with Indian parents naturalized), Nader (with Lebanes parents naturalized) and Lieberman (with Polish parents naturalized) were eleigible, …..
How the hell is Obama (with a full grown Mother citizen) not eligible?
Its so simple!!!!!!!!!!! And thats why DEMs and GoP and MSM has moved on from such NONSENSE.
It does sound funny doesnt it. All these confused drama escalations and mis-information.
Expect SCOTUS to uphold this view and dismiss the cases.
by Paul on Dec 2, 2008 at 12:10 pm
In Reply to Mr. D.:
I keep telling you that if you rely on mis-information, you get more confused.
Read the story on JINDAL, whom I know from college. He was born 6 months after his parents came to the USA (meaning they were 3 months pregnant when they came over) as immigrant students- like obama’s father.
I urge you not to rely on blogs or talking points from rumors as facts. It makes your views even more suspect.
by Paul on Dec 2, 2008 at 12:13 pm
In Reply to Joss:
Joss. I agree with you that, “it doesn’t say anywhere in the Constitution that it is necessary for parents of “natural born citizens” to both be under the jurisdiction of the US.”
However, that doesn’t end the argument. Just because it isn’t explicitly stated doesn’t mean it wasn’t their intentions.
Do you think they would have agreed with allowing a child of a British subject to be the President just because he was born on US Soil. You don’t think the jurisdiction is implied through the severing of ties with the British Crown in the Declaration of Independence. I know that the DOI and Constitution are seperate documents, but he DOI gives you an idea of their mindset to the British Crown. It seems inconceivable that they would have allowed a child of a British subject to be President simply by birth on US soil.
by Mr. D. on Dec 2, 2008 at 12:16 pm
In Reply to Mr. D.:
In fact JINDAL’s parents came as students and gave birth to him within 5 months of staying here; Nader’s parents came as refugees and gave birth to him in 1st year; Lieberman’s parents came as workers and gave birth to within their 2nd year.
All the parents of JINDAL, NADER, LIEBERMAN gave birth to them when they were not even naturalized citizens (takes more than 7-10 years process).
by Paul on Dec 2, 2008 at 12:17 pm
In Reply to Paul:
That’s for the court to decide. It’s totally conceivable and accepted that a child of two naturalized US citizens or of two US citizens, who are citizens by other statutes, is a “natural born citizen”, if he’s born on US soil.
But the strength of one’s parent’s or parents’ lineage should not be there to say that one is a better or more suited citizen than the other, not in a country with equality for all. That’s what the Nazis tried to do with their Aryan ideas. One has to be careful.
This is only about the question: Does the fact of having one foreign parent disqualify you from being a “natural born citizen” and therefore from becoming President? I seriously don’t know. I think it doesn’t, Donofrio (and many others) think it does, but that’s not for me or them to decide.
by Joss on Dec 2, 2008 at 12:21 pm
In Reply to Mr. D.:
That strict conviluted view of the constitution makes you even more suspect.
If we follow your view, then I guess we should revert back to the days of:
- Only WASP males have rights to votes and stand for office
- women have no rights
- minorities have no rights
Thats why many people have ignored your convoluted views. And thats why SCOTUS has always affirmed such views as convoluted.
by Paul on Dec 2, 2008 at 12:21 pm
In Reply to Paul:
I suggest we keep discussions civil, w/out ad hominem.
I have to rephrase what I wrote before:
This is not only about the question: Does the fact of having one foreign parent disqualify you from being a “natural born citizen” and therefore from becoming President? It’s the more specific case that the foreign parent’s citizenship also implies a jurisdiction that is extended upon the child, as in Obama’s case. (Sorry.)
by Joss on Dec 2, 2008 at 12:27 pm
In Reply to Paul:
You stated:
That strict conviluted view of the constitution makes you even more suspect.
If we follow your view, then I guess we should revert back to the days of:
Only WASP males have rights to votes and stand for office
women have no rights
minorities have no rights”
I’m not sure how you jumped to that conclusion based on my comments. Obviously the framers had some biggoted views and they were corrected by subsequent amendments. However, unless changed by future amendments, the constitution does not evolve in meaning to conform to the relevant culture; it is static. The phrase “natural born citizen” found in Article 2, Section 1 has never really been defined and until it is ruled upon, the original intent of the definition by the framers has to be used until subsequently amended or defined. I hope that the meaning is ruled upon soon because in this day and age of racial diversity, we will need a clear definition for future Presidential races to end the rampant speculation.
by Mr. D. on Dec 2, 2008 at 12:36 pm
In Reply to Mr. D.:
I find it funny that on some posts you are “MrsD” and then on others you are “MrD”.
Cant you decide which side you are going to be today? LOL!!! it shouldnt be hard?
by Paul on Dec 2, 2008 at 12:44 pm
In Reply to Mr. D.:
You wrote: “However, that doesn’t end the argument. Just because it isn’t explicitly stated doesn’t mean it wasn’t their intentions.”
We have to try to not confuse motivation and intention. Intention is what’s written in the law. What you’re talking about is motivation, the psychology, opinions, concerns, rumors etc. behind a legislative decisions, including dissenting opinions.
But that’s NOT intention!
If the 14th Amendment does not rule out subjection under two jurisdictions, then it’s clear what the 14th Amendment’s author George Williams did, when he said that “subject to the jurisdiction thereof” meant sole allegiance to the US:
1. His motivation, i.e. that which MOVED him to his statement: “Oops, I messed it up. This might be a backdoor for people with dual allegiance.”
2. His intention, i.e. which he did after he realized that the 14th Amendment posed a problem in his world view: A statement about it meaning sole allegiance, hoping to somehow influence the interpretations of the 14th Amendment. But his opinion never became law. There was never an Amendment to the 14th Amendment.
So his motivations are irrelevant, as all motivations are. The intentions are what count, the real intentions, i.e. what is actually written as law. So yes, the debates end, when the text of the law ends. Anything else is nice to talk about for historical reasons, but it’s not applicable, unless the law has been wilfully left ambiguous and open for discussion, which (to my mind) is not the case here.
by Joss on Dec 2, 2008 at 12:48 pm
Who ever said Obama ever renounced his dual citizenship with Britain?
After all, British law requires that a British citizen at birth must renounce their allegiance to the crown at age 18 or older if they no longer want to be a citizen.
by JeffM on Dec 2, 2008 at 6:54 pm
Indians and Invaders: The Citizenship Clause and Illegal Aliens
March 2008
A. Birthright Citizenship and the Common Law
One fundamental premise of Anglo-American jurisprudence is that any child born within the dominion and under the authority of the sovereign is a citizen. In the seventeenth century, Lord Coke held, “Every man is either alienigena, an alien born, or subditus, a subject born. Every alien is either a friend that is in league, &c. or an enemy that is in open war … .” With respect to enemy aliens, Coke said that if they “surprise any castle or fort, and 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.” By contrast, allied or friendly aliens “owed to the King local obedience, that is, so long as he was within the King’s protection; which local obedience, being but momentary and uncertain, is yet strong enough to make a natural subject; for if he hath issue here, that issue is a natural born subject … .” The only exception to this rule was an ambassador, who was an official representative of a foreign prince and thus owed him allegiance even when abroad.
Although Coke’s reasoning relied on a feudal premise about the indissoluble tie between lord and subject, his formulation was adopted by the United States. The Supreme Court observed that the birth citizenship rule for aliens “does not appear to have been contested or doubted until more than fifty years after the adoption of the Constitution.” And when a challenge was made in Lynch v. Clarke, a New York court reaffirmed the common law approach and rejected a reciprocal consent theory of citizenship. Indeed, Lynch held that “every person born within the dominions and allegiance of the United States, whatever were the situation of his parents, is a natural born citizen.”
B. The Fourteenth Amendment and Wong Kim Ark
When the Thirty-Ninth Congress got down to work, the conventional view is that they sought to affirm the common law approach to birthright citizenship and extend the rule to the newly freed slaves. The Civil Rights Act of 1866, which was the direct antecedent of the Fourteenth Amendment, held that “all 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.” During the debate on the Act, common law precedents such as Lynch were cited to illustrate the meaning of birthright citizenship. While the language on “Indians not taxed” was taken from the Constitution to indicate that the exclusion of the Tribes would continue, the phrase “subject to any foreign power” referred to the traditional exceptions for children of ambassadors and enemy aliens in hostile occupation.
When Republicans decided to secure and broaden the Civil Rights Act through the Fourteenth Amendment, the relevant text was changed to say that all Americans “subject to the jurisdiction” of the United States were birthright citizens. Once again, the common law was invoked to define this language, but the debate centered on whether this substitute applied to the Tribes. Some contended that federal statutes already regulated aspects of tribal life and subjected Native Americans to national jurisdiction. Nonetheless, the phrase was retained because the floor managers could not agree on a better alternative. Furthermore, they countered that the Tribes were not “subject to the jurisdiction” of the United States because they had their own recognized governments.
In United States v. Wong Kim Ark, the Supreme Court held that the Fourteenth Amendment adopted the common law view of birthright citizenship. Ruling that children born in the United States to Chinese immigrants were citizens, the Justices “detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term “jurisdiction’ was used.” They concluded that the purpose of the “subject to the jurisdiction” language:
Would appear to have been to exclude, by the fewest and fittest words, (besides children of members of the Indian tribes, standing in a peculiar relation to the National Government, unknown to the common law,) the two classes of cases–children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign State–both of which, as has already been shown, … had been recognized exceptions to the fundamental rule of citizenship by birth within the country.
The emphasis on territoriality was an integral part of the common law approach dating back to Coke, which held that citizenship was directly tied to the government’s legal and practical authority.
by sbd on Dec 2, 2008 at 8:58 pm
sbd wrote: “Lynch v. Clarke, a New York court reaffirmed the common law.”
No it didn’t. The court wanted to adjudicate under new York law but there was no New York law at the time! So the court relied on common law. New York a few years later invalidated Lynch when expressly prohibited children born to “transient aliens” to be citizens. This was the entire basis of Lynch, a child born to temporary aliens.
sbd wrote: “Once again, the common law was invoked to define this language”
Liar! The common law was never once mentioned in the congressional debates on “subject to the jurisdiction thereof.” Natural law and national law was invoked, something that had nothing to do with common law.
sbd wrote: “the Justices “detailed at some length the history of the Citizenship Clause, and the predominantly geographic sense in which the term “jurisdiction’ was used.”Â
Liar! They avoided the history of the clause. The majority said: “debates in congress are not admissible as evidence to control the meaning of those words.”Â
The truth is they debated England’s common law, not America’s because they were tiny incompetant morons who had little respect for law or the Constitution.
sbd wrote: “the Supreme Court held that the Fourteenth Amendment adopted the common law view of birthright citizenship.”
BIG LIE! The “United States have not recognized a double allegiance.” No double allegiance = no common law.
by JimAZtec on Dec 2, 2008 at 9:57 pm
In Reply to JimAZtec:
First of all, I did not write the paper, I only quoted it and provided the link to the actual source.
Second, you are calling Gerard N. Magliocca, Professor, Indiana University School of Law–Indianapolis. J.D., Yale University 1998; B.A., Stanford University 1995 a LIAR.
Do your credentials meet or surpass those listed above??
by sbd on Dec 2, 2008 at 10:49 pm
In Reply to JeffM:
I don’t know the specific British laws, but according to FactCheck, Obama’s ius-sanguinis-citizenship automatically turned into a Kenyan citizenship, which expired when he was 21.
But this is only about the citizenship, and I don’t know if these processes also included an expiration of the allegiance to/subjection under the British crown. Isn’t monarchic subjection/allegiance in perpetuity, no matter what happens to your citizenship?
In any case, the only relevant thing here would be Obama’s status at birth.
by Joss on Dec 2, 2008 at 11:03 pm
In reply to Joss who said congress could make a grandfather clause for Obama as an exception and everyone would be happy, that is CRAZY!
#1 BHO has NO right to any exceptions! HE LIED! Why reward that? Wrong Message to the people…
#2 NOT FAIR as others who were MORE qualified than he but did NOT apply for the job because they respected and abided by the Law and Constitution by not running, like Schwarzenegger…
#3 Obama KNOWINGLY committed FRAUD against the American People and some of his acts are TREASON of which is he only Federal Crime punishable with the option of the Death Penalty! but I’d rather see him rot in PRISON!
#4 Due to BHO’s multiple-allegiances and connections and friendships with known terrorists and enemies of this country, this is a MATTER OF NATIONAL SECURITY!
by Obama is a CRIMINAL!!! on Dec 2, 2008 at 11:13 pm
As stated by Justice St. George Tucker;
“That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted,) is a happy means of security against foreign influence, which, where-ever it is capable of being exerted, is to be dreaded more than the plague.”Â
http://www.ObamaNotQualified.com
by Constitution must prevail on Dec 2, 2008 at 11:19 pm
In Reply to Constitution must prevail:
Tucker’s comment is not US law. And it only mentions “native born citizen”, not “natural born citizen”. These two are completely different classes of citizenship.
by Joss on Dec 3, 2008 at 12:40 am
In Reply to Obama is a CRIMINAL!!!:
Your post is what’s crazy. All you do is scream out allegations without any evidence. You allege that Obama is a liar, a defrauder, a traitor committing treason “†and you don’t present any evidence whatsoever.
Even if Obama is found ineligibile, it still doesn’t mean that he’s a criminal. He’s simply ineligible. He used to be a Senior Lecturer on Constitutional Law, so it’s probable that he and his attorneys think they can show that he’s a “natural born citizen”. But that’s not fraud or high treason. That’s simply an opinion that has to be scrutinized by the SCOTUS.
However, if his actual birth certificate shows that he wasn’t even a “native born citizen”, then this would be fraud and/or treason for sure. But we’ll have to wait and see.
PS: And what about John McCain’s connections to known terrorists, enemies of the country and other unsavory citizens? Or even war criminals who introduced torture, against international laws, like the current Preznit?
by Joss on Dec 3, 2008 at 12:52 am
In Reply to Joss:
Show us by what constitutional authority the SCOTUS can “assign” the Congress to a author a Constitutional Amendment!
If the SCOTUS rules against Obama he cannot not become President. Any attempt to “assign” would be certain judicial activism on the part of the SCOTUS.
Obama, a new founding father? That is absurd!
Concerning other posts: Is Obama lying? And your assertion that no proof supports his lying: Certainly! His campaign says his “certification of live birth” as shown on the Internet is valid proof when “certified vault copy of his birth certificate” Moreover, the “certification of live birth” is a forgery.
Also, his Selective Service information on the Internet shows clear evidence of tampering.
Obama is either behind these issues or he has not provided the clear evidence to prove otherwise.
by Hugh on Dec 3, 2008 at 6:25 am
In Reply to Joss:
Why are you so intent on establishing that it only matters what Obama’s status was at birth?
If that is so, or perhaps more importantly, if five of nine justices of the Supreme Court agree that it should be so, it may be that those five justices will simply rule that the plain language of the Constitution does not support the conclusion that dual citizenship at birth by way of the foreign nationality of one parent does not negative natural born citizen status otherwise conferred (such as by virtue of having been born within the United States when one’s other parent is either a native-born citizen or a naturalized citizen of the United States). Inquiry complete, next case please!
Don’t get me wrong, I don’t mean to rain on your parade, but in my way of thinking, you are unwise to place all of your legal eggs in one basket.
By contrast, I favor presenting the justices with a number of plausible scenarios, together with corresponding public policy arguments to make such scenarios at least minimally palatable to one or more of the individual justices. The point should be to set up or preserve an arrangment in which We the People are guaranteed (to the extent that this is possible) that the individual occupying the office of POTUS has no reason to place the United States at any sort of undue disadvantage, but rather is unstintingly patriotic, and therefore unrelenting in taking whatever actions are necessary to promote the best interests of the United States, consistent (if at all possible) with international law and other important considerations. So what good does it do to demand either the moon, or nothing at all, when you don’t necessarily need “the moon” to obtain your objectives?
Mr. Donofrio may be pursuing the approach he has selected for one or more of any number of reasons, as is his right as a litigant and plaintiff. That does not mean that others should not take his basic point and elaborate on it. To my mind, this includes suggesting the possibility of appropriate exceptions to his general rule that dual citizenship at birth negatives what would otherwise be constitutionally-valid natural born citizen status. The justices of the Supreme Court need grist for their mill. Let’s not shy away from providing it.
My theory, as discussed in an earlier comment shown below, starts with the premise that 1) the Supreme Court may be unwilling to lay down a hard and fast rule that dual citizenship at birth is sufficient to negative what might otherwise be constitutionally-valid natural born citizen status, and 2) the court will be equally disinclined to conclude that any act taken by such a person’s parents or guardians, or by such a person themselves, prior to such a person reaching adulthood, can be such as to strip such a person of the qualifications necessary to ascend to or occupy the office of POTUS.
Based on that premise, I suggest that the court may be willing to entertain public policy arguments to the effect that, once an person with dual citizenship at birth becomes an adult, there may be circumstances under which such a person can take deliberate action which will have the effect of stripping them of their previous status as a natural born citizen, without working an actual denouncement of U.S. citizenship. In other words, such a person may remain, for all other intents and purposes, a U.S. citizen. Only now he or she will be POTUS-ineligible.
That’s it–no ham-handed condemnation of the person in question, no singling out anybody because of how they look or what their name is, just an appropriate measure of prudence in trying to identify those among us who are trying to have it both ways as adults of full age, and the hard-mindedness and intestinal fortitude to hold such individuals at least minimally accountable for their actions, for the sake of preserving Constitutional order.
What circumstances might I be talking about? I can’t say for sure, obviously, but I would presume the Supreme Court would be keenly interested in any acts taken by an individual with dual citizenship which, on their face at least, would appear to demonstrate, not only less than total fealty to the United States (which seems common for many individuals who never held dual citizenship), but also an intention to avail himself or herself of certain benefits, privileges, or protections associated with their foreign citizenship that are unavailable to other U.S. citizens. I would think that this would suffice to demonstrate that such an individual failed to emerge from childhood with a level of respect for our way of life in the United States commensurate with the privilege of ascending to or retaining the highest office in our land.
At the risk of sounding like a person who believes traditional, time-honored religious teachings should have some bearing on modern society, I would suggest that the following biblical quote from 1 Corinthians 13:11 (taken from the American King James Version) is probably germane to this discussion: “When I was a child, I spoke as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.”
by Publius on Dec 3, 2008 at 8:06 am
In Reply to Publius:
Sorry-I meant to say: “…it may be that those five justices will rule that the plain language of the Constitution forbids the conclusion that dual citizenship at birth by way of the foreign nationality of one parent negatives natural born citizen status otherwise conferred…”
by Publius on Dec 3, 2008 at 8:18 am
In Reply to Hugh:
You wrote: “Show us by what constitutional authority the SCOTUS can “assign” the Congress to a author a Constitutional Amendment! If the SCOTUS rules against Obama he cannot not become President. Any attempt to “assign” would be certain judicial activism on the part of the SCOTUS.”
Not necessarily. But you found the part I’m the least sure about. Although, I think I remember that the Constitution assigned to Congress (to the legislature) the authority or even obligation to pass citizenship and naturalization legislation. Since the SCOTUS is the judicative, they could do the same in this case by demanding a new Amendment, if the case can not be fully resolved. But this is purely hypothetical, and I was only looking for a possible win-win scenario. I don’t think it’ll ever get that far.
You wrote: “Obama, a new founding father? That is absurd!”
Of course that’s absurd. He hasn’t achieved anything yet to earn the title of a “new founding father”. I was just saying that an Obama-taylored new grandfather clause would automatically make him a “new founding father”.
You wrote: “His campaign says his ‘certification of live birth’ as shown on the Internet is valid proof when ‘certified vault copy of his birth certificate’”
But that’s neither lying nor treason nor anything. Only if his real BC says he was born in Kenya, then he has committed election fraud. Do you have any proof that this is the case? No, you haven’t.
You wrote: “Moreover, the “certification of live birth” is a forgery.”
If a few experts stand up with their good names and say it’s a forgery, then yes, I’d be willing to believe that. But that guy with his infotainment loser-generated content YouTube video and the Darth Vader voice saying it’s all a forgery, all a lie? You seriously don’t think that’s sufficient or in any way verifiable!?!
You wrote: “Also, his Selective Service information on the Internet shows clear evidence of tampering.”
Yes. As with any other candidate. Welcome to politics.
Your wrote: “Obama is either behind these issues or he has not provided the clear evidence to prove otherwise.”
The first part is an argument from silence without any evidence to back it up “†the second part is clearly correct. Therefore there is a definitely chance that he hasn’t been honest, that he’s been lying and committed fraud. But we’ll only know if he produces the relevant documents. And afaik, nothing can force him to do that at the moment.
by Joss on Dec 3, 2008 at 8:19 am
In Reply to JeffM:
Wow, JeFFM
This is the best question of all. BO claimed dual citizenship at birth, as per the British act of 1948, and has NEVER denounced his British citizenship anywhere. He, by law could still be considered a Dual Citizen. The original language of “Natural Born” comes from John Jay letter to George Washington, which he pleads to Washington before the Continental Congress to prevent the commander in Chief of the US armed forces to have foriegn loyalties by placing a Natural Born clause. BO has ‘foriegn entanglements’ from birth, and may still have them, and therefore is NOT Natural Born.
by Pete on Dec 3, 2008 at 8:52 am
In Reply to Publius:
Quote: “Why are you so intent on establishing that it only matters what Obama’s status was at birth?”
I’m just following Donofrio’s lead here. “Natural born citizen” can only refer to the status at the time of his birth, not any later status, e.g. at the time of his nomination.
Quote: “it may be that those five justices will simply rule that the plain language of the Constitution does not support the conclusion that dual citizenship at birth by way of the foreign nationality of one parent does not negative natural born citizen status”
Of course. There’s a big chance that this is what they will rule. I’m just thinking of an alternative interpretation, as any attorney should do, if he wants to be fully prepared.
Quote: “but in my way of thinking, you are unwise to place all of your legal eggs in one basket.”
Yes, that’s very risky. But at the moment I can’t find another solution of how to counter Donofrio’s case in a more elegant or slimmer way. So at the moment I think that the defendant only has this one basket against Donofrio. Maybe another possibility will pop up in the next few days, let’s wait and see.
Quote: “So what good does it do to demand either the moon, or nothing at all, when you don’t necessarily need “the moon” to obtain your objectives?”
Fair enough. I’m however always also looking for the Occam’s razor solution, and that’s the sole reason behind deducing a definition of “natural born citizen” from the 14th Amendment, which doesn’t collide with the Presidential qualifications clause. In court this might not be a convenient strategy, so you’d have to add many more arguments (like I did with the John Jay letter). But if your very fundament is not sound in itself, you’ll have a hard time winning a case. Any additional arguments could then be easily picked apart.
Quote: “The justices of the Supreme Court need grist for their mill. Let’s not shy away from providing it.”
Yes. You need to behave as they expect you to.
Quote: “My theory, as discussed in an earlier comment shown below, starts with the premise that 1) the Supreme Court may be unwilling to lay down a hard and fast rule that dual citizenship at birth is sufficient to negative what might otherwise be constitutionally-valid natural born citizen status, and 2) the court will be equally disinclined to conclude that any act taken by such a person’s parents or guardians, or by such a person themselves, prior to such a person reaching adulthood, can be such as to strip such a person of the qualifications necessary to ascend to or occupy the office of POTUS.”
Yes. And it may be a good theory. If they didn’t want to follow a clear-cut super-slim defense argument, then the defendant would need another approach. But wouldn’t your argument be slammed by Donofrio? He’s arguing that “natural born citizen”, which is a prerequisite for becoming POTUS (no way around that), only refers to the status at birth (as the “born” already implies in the term). I personally agree with him on that, completely. So anything that comes later in a candidate’s vita would be irrelevant. There’s a good chance that the SCOTUS would rather follow Donofrio’s argument here.
Quote: “there may be circumstances under which such a person can take deliberate action which will have the effect of stripping them of their previous status as a natural born citizen”
This approach would possibly save Obama’s presidency, possibly not, but in any case it would infringe upon the inherent meaning in “natural born citizen”, namely that the term describes a status present at birth, and at birth only.
Quote: “just an appropriate measure of prudence in trying to identify those among us who are trying to have it both ways as adults of full age, and the hard-mindedness and intestinal fortitude to hold such individuals at least minimally accountable for their actions, for the sake of preserving Constitutional order.”
I understand. But one would have to establish strict rules, and there are so many possibilities in a man’s life, so many different paths to go, that I find it hard to believe that it’s possible to create a Constitutional framework to evaluate Presidential candidates in this manner. It would remain a free-floating, time- and resource-consuming process, prone to bias against candidates etc.
Quote: “but also an intention to avail himself or herself of certain benefits, privileges, or protections associated with their foreign citizenship that are unavailable to other U.S. citizens.
But what would these benefits be? Who would decide which to include in an argument and which not? Some people would argue that using one’s foreign citizenship to receive a matriculation for foreign students would be something obtained by fraud, at least for someone who wants to be a patriot, who wants to become President. Others would argue that it’s not something obtained by fraud, but something that he was entitled to BECAUSE he had that dual citizenship.
Quote: “I would suggest that the following biblical quote from 1 Corinthians 13:11 (taken from the American King James Version) is probably germane to this discussion: “When I was a child, I spoke as a child, I understood as a child, I thought as a child: but when I became a man, I put away childish things.”"
Okay, I then argue that breaking the Constitution would not be a fatal or evil move, if it results in good leadership”â€with a historical source on “illegitimate rule” (= “tyranny”). I counter with Cicero, who paraphrased a sentence from Euripides, agreeing with Julius Caesar, who had quoted it before, in order to defend his allegedly illegitimate rule:
“If you break the law, then for the price of a tyranny most fair. Otherwise be pious and obey the laws [and believe in God].” (Suetonius, “Divus Iulius” 30; Cicero, “De Officiis” 3.82; Euripides, “Phoinissiai”, 542 sq.)
by Joss on Dec 3, 2008 at 9:26 am
In Reply to Pete:
No. His British citizenship automatically turned into a Kenyan citizenship, when Kenya became independent. This Kenyan citizenship then automatically expired at the age of 21.
by Joss on Dec 3, 2008 at 9:28 am
In Reply to Joss:
Great post. I appreciate having your thoughts on this.
You said: “”Natural born citizen” can only refer to the status at the time of his birth, not any later status, e.g. at the time of his nomination.”
I say: I agree that one cannot acquire the status of “natural born citizen” after the fact of birth. Such status can only be conferred on an individual based on the circumstances prevailing at the moment of birth. But as you can see, my argument hinges on the premise that one who holds dual citizenship at birth bears the special risk of losing one’s status as a natural born citizen by virtue of certain (admittedly, as yet unspecified) disqualifiying acts taken as an adult. Again according to my theory, once lost, “natural born citizen” status cannot be regained.
Just like any other candidate, an individual with dual citizenship must have been a U.S. citizen since birth (i.e., no “discontinuities” in citizenship such as would necessitate re-naturalization for U.S. citizenship to be regained). However, dual citizens who one day may seek to become president must keep in mind that if they wish to retain dual citizenship into adulthood, they will need to forego “dipping their toes” into any “pool” of advantages or privileges that may be available to them based on any foreign citizenship they retain by default. So long as they are diligent about this, they should have no trouble when the time comes to decide whether or not to run for president. If they are not, well then…they may have to lie in the bed they themselves have made. Not our problem.
So to be a valid presidential candidate or president, a dual citizen will need to:
1) demonstrate that he or she was born in the United States to mother or father who was a U.S. citizen at the time; and
2) at least declare (to the best of his/her knowledge, and subject to such new information as may later arise or be discovered) that he or she has undertaken no act or acts as an adult sufficient to demonstrate divided fidelity as between the United States and another country in which citizenship is or was then held.
If it were up to me, I would throw in a third “prong” and require the individual to affirmatively declare any and all foreign citizenships held, and either show how and when such citizenships have previously been legally renounced, or if one or more of them are still held, formally renounce the same at some point prior to ascending to the office of POTUS (not necessarily prior to being elected).
by Publius on Dec 3, 2008 at 11:53 am
Great discussion! Thanks for your interest and effort. Given the credible position that ‘natural born’ is determined at birth and not by law or deed, won’t it be necessary for the Justices to understand the documented facts of Senator Obama’s birth? Or can they merely refute Donofrio’s claim that dual citizenship bars natural born citizenship, regardless of the unrevealed facts of the Senator’s birth?
by Bill G on Dec 3, 2008 at 1:01 pm
Joss, please see my comments following yours.
In Reply to Hugh:
You wrote: “Show us by what constitutional authority the SCOTUS can “assign” the Congress to a author a Constitutional Amendment! If the SCOTUS rules against Obama he cannot not become President. Any attempt to “assign” would be certain judicial activism on the part of the SCOTUS.”Â
Not necessarily. But you found the part I’m the least sure about. Although, I think I remember that the Constitution assigned to Congress (to the legislature) the authority or even obligation to pass citizenship and naturalization legislation. Since the SCOTUS is the judicative, they could do the same in this case by demanding a new Amendment, if the case can not be fully resolved. But this is purely hypothetical, and I was only looking for a possible win-win scenario. I don’t think it’ll ever get that far.
————————————————————-
Joss:
I do not see how the Supreme Court could ever demand that Congress solve this issue now. The Constitution says whatever is says now, supported by court decision precedents, statutes, etc. I emphasize “now” as critically very important.
The SCOTUS will not allow the rules to be changed in the middle of an election. Remember the State of Florida Supreme Court changing the rules about the Florida 2000 vote count concerning Gore vs Bush. The SCOTUS said no to Gore for good reason.
People are already calling Obama the “President-elect” and Obama has even created the “Office of President-elect” when in fact Obama cannot even become President-elect until the Electoral College meets and votes.
Constitutional amendments go through a legal process passed by each of the States. I have not currently reviewed that process.
The SCOTUS, and all members of Congress, individually and corporately, are compelled to uphold the Constitution.
So, there cannot be any valid Constitution change as to the natural born citizen clause currently. The SCOTUS needs to decide what those words mean and confirm it.
Furthermore, I do not trust Congress to fix it. Because most assuredly and sadly there will be a public outcry to eliminate the natural born citizen clause. And Congress would quickly give approval to “what the American people want.”
This issue is so important that is should not be left to public opinion, or what Congress desires, or wants, or what Congress thinks the public wants. This is such an important issue that, if the natural born requirement is changed, it should be resolved only through Constitutional Amendment. This is appropriate since each of the States would be required to deliberate over and decide the issue by vote. It is a very serious matter. The Framers thought enough about it and considered it so significant that they included it in the Constitution as a Presidential requirement.
Therefore, what Obama has done or appears to be doing, with all his denials and refusals to provide others the documents that properly pass legal muster in effect weakens the Constitution, dishonoring it’s Framers, giving fodder to those opponents of original intent.
Based on Obama’s on actions and what little I know, (and I don’t know the evidence perfectly) I believe Obama to be a deceiver and a usurper, opening America up to a Constitution crisis. Character and integrity are most important.
by Hugh on Dec 3, 2008 at 1:12 pm
###All the parents of JINDAL, NADER, LIEBERMAN gave birth to them when they were not even naturalized citizens (takes more than 7-10 years process).### IF THAT is true, then NONE of them are natural born, as we did not anchor babies at the time of their births, unless they were born after 1965. Foreigners giving birth here SHOULD mean the kids are foreign too.
by Lincoln Lowery on Dec 3, 2008 at 1:26 pm
In Reply to Bill G:
That’s a good question. I think they already understood the implications. They probably read Donofrio’s application and just thought “What the”¦?!” They must know that this is dead-serious, and I can’t think of a reason why they would reject it.
Quote: “Or can they merely refute Donofrio’s claim that dual citizenship bars natural born citizenship, regardless of the unrevealed facts of the Senator’s birth?”
Definitely not. Maybe the defendants or the judges will find a way to defeat the whole thing, but they’ll need some REALLY good arguments, because Donofrio does have a case here. If they treat it with the respect it deserves, the Constitution and the country can only win, no matter how they’ll eventually rule.
But I think that the term “natural born citizen” must (ideally) be explained from the Constitution, i.e. in all probability the 14th Amendment. Saying (like some do) that the term is “self-evident” or that it needs no explanation because it’s a “natural state of existence”, wouldn’t make for a good argument in court. That’s why I tried my little theory, with as little extra-constitutional baggage as possible, although I can’t claim that it’s in any way correct or superior to others.
by Joss on Dec 3, 2008 at 1:28 pm
In Reply to Bill G:
There are circumstances, I believe, that would justify a situation in which SCOTUS will decide it needs to find facts on its own. This may be such a situation, because unless I am mistaken, no court in New Jersey ever authorized any discovery order to be served on any party (such as the state of Hawaii, or the countries of Panama or Nicaragua) that would be in a position to provide official information regarding birth circumstances of any candidate.
Mr. Donofrio’s case cannot be conclusively decided on the merits in any court unless and until a definition is determined for the constitutional term “natural born citizen”, SCOTUS may elect to supply such a definition now, while the case is before it, and while there is still time between now and December 15th. While SCOTUS could render a largely procedural decision that returns the case to New Jersey for further adjudication, I think this is unlikely. To do so is to take the distinct risk that the constitutinal question at issue will become moot before SCOUTS will have a chance to review any subsequent decisions. Or if mootness is not at issue, SCOTUS may find itself in a position of having to rendering a decision that potentially disqualifies Obama as an actual president-elect (i.e., after the electoral college has held its vote, and/or after the electoral college votes have been counted in the Senate), or, worse yet, that will result in the removal of Obama from office as a sitting POTUS.
Remember also that this case is on appeal from the highest court of a U.S. state, as opposed to the Court of Appeals of the Third Federal Circuit, or a Federal District Court of the District of New Jersey. If I am wrong on this, I’d love to hear why, but my sense is that SCOTUS is not in a position to dictate terms in terms of directly controlling subsequent activity in this case such as further fact finding or the timing of related decisions. Because SCOTUS will need to “play ball” with the courts of New Jersey, it may be inclined to take decisive action sooner, rather than later. This is likely to require some de novo fact-finding, at least, if for no other reason than to ensure that SCOTUS does not find itself in the position of having rendered a decision based on facts that later turn out to be “inoperative”. For example, SCOTUS is not likely to accept anything short of conclusive proof that Obama was physically born in Hawaii before it will go to the trouble of basing a decision on such a fact in a case of first impression.
by Publius on Dec 3, 2008 at 1:32 pm
Beyond all the legal details is one simple fact. What about the right of the voters to have known all the relevant facts prior to the election? If any of these assumptions and issues about Obama’s citizens turn out to be true (Born in Kenya, Dual-Citizenship, Indonesian Passport, Kenyan Citizenship, British Citizenship, Foreign Student Application etc) Don’t the citizens have a right to know these facts prior to the election? Even if they do not disqualify Obama – The people should be properly informed. From my point of view – if any of these issues are true- it invalidates the election itself.
by Jasper on Dec 3, 2008 at 1:41 pm
So yet another article to shed some light:
http://www.therant.us/guest/gioia/09222007.htm
While this is a discussion of the 14th amendment and what the “subject to the jurisdiction thereof” language means, it also contains reference to “natural born citizen.”
The article contains information to discredit the Wong Kim Ark case which some have used as evidence that being born in the US is all that is necessary to have 14th amendment citizenship.
The article concludes that the 14th only grants citizenship to those born in the US provided at the time that they were not subjects of any foreign power. The article also contains information that the writers of the 14th amendment intended it to not negate the “natural born citizen” concept since it to them also required being born in the US, not being a subject of any foreign power.
The more I read, the more firmly believe that a “natural born citizen” must be born in the US and be born without being claimed as a citizen by any foreign power. I think McCain and Obama do not meet these test, one failing the first test, and the other failing the second test. The simply each are citizens by statute (naturalized).
I certainly hope the Supreme Court will fully address this issue. We already seem to be on a collision course with civil disorder over the next several decades, and we do not need the additional rallying point of an unconstitutional President as things go from bad to worse economically.
by Sid Davis on Dec 3, 2008 at 1:49 pm
In Reply to Lincoln Lowery:
QUOTE: “All the parents of JINDAL, NADER, LIEBERMAN gave birth to them when they were not even naturalized citizens (takes more than 7-10 years process).”
I think Donofrio stated in one of the Plains Radio interviews that Lieberman is the son of naturalized citizens. I don’t know about Jindal, but Nader is definitely a “natural born citizen”, son of two naturalized parents.
QUOTE: “Foreigners giving birth here SHOULD mean the kids are foreign too.”
But it doesn’t. US have ius soli. As a child of two foreigners, but born on US soil, you’re automatically a citizen, but not a “born citizen” under the 14th Amendment, but 8 US Code §1401a “†I think.
But one question: Why SHOULD it mean that foreigners’ children are foreign, too?
by Joss on Dec 3, 2008 at 2:01 pm
In Reply to Hugh:
I’m not buying into the usurper thing”â€not without any evidence”â€, but I completely agree with you on the rest. The SCOTUS has to decide what the term means. Anything else (e.g. yet another Amendment) would not be feasible.
by Joss on Dec 3, 2008 at 2:11 pm
I guess it comes down to what the meaning of the word “is” is. I’m sorry, but liberals have no regard for the law.
by Wally on Dec 3, 2008 at 2:51 pm
In Reply to Joss:
Usurper may be too strong a word at the moment. My best Websters says: To seize by force or without right; it implies forcible seizure, as of power without right.
Arrogate is a synoymyn: To arrogate is to presume unduly or with presumption.
Evidence? Consider again the “Office of President-elect”. There is no such office, and even if there was he has yet to assume it. Yet, Obama has his own podium now. Couple this with his refusals. This is clearly problematic! He is already forcing us to accept his stance without proof.
I will modify my comment to “stealth-usurper”. The problem is that we have not see the fully-evident fruit. I think we are there already at some level.
by Hugh on Dec 3, 2008 at 3:29 pm
In Reply to Joss:
When I say “He (Obama) is already forcing us to accept his stance without proof” I mean giving proof in such a way the American can say yes and amen.
I know the Obama people want him, but he has to go through the door correctly. He cannot do it any other way and be eligible. We do not need to re-size the door to enable him to fit.
May I offer to you John 10:1-14. This fits since some are calling Obama “messiah”.
by Hugh on Dec 3, 2008 at 3:51 pm
In Reply to Hugh:
My Oh! My.
This NBC business was taken too far.
Especially since our 21st president (Arthur Chester) had an American citizen mother and a Canadian father (naturalized after his birth).
http://en.wikipedia.org/wiki/Chester_A._Arthur
When Pres. Arthur ran for office, so many of his critics tried to allege he was foreign (or had been born in Canada or that he was not NBC).
But guess what, President Arthur served the nation.
Now this gives us a hint what SCOTUS will do on Friday.
If Obama was born in Hawaii (which has been confirmed), then guess what, he is NBC (like President Arthur).
Simple as that.
by Mr. Paul on Dec 3, 2008 at 4:11 pm
http://en.wikipedia.org/wiki/Chester_A._Arthur
20th VP of USA, 21st President of USA
Chester Alan Arthur
http://www.answers.com/topic/chester-a-arthur
And Arthur was nominated by the REPUBLICAN Party.
by Mr. Paul on Dec 3, 2008 at 4:16 pm
The son of a Baptist preacher who had emigrated from northern Ireland, Arthur was born in Fairfield, Vermont, in 1829.
http://www.whitehouse.gov/history/presidents/ca21.html
President Arthur as born in the U.S. The Supreme court, if it hears the case, will find that Obama was either a) not born in the U.S. and/or b) lost whatever citizenship he may have had when he became an Indonesian citizen (which is probably what his sealed college records show him as).
by rxsid on Dec 3, 2008 at 4:28 pm
Some ‘forensic’ comparisons:
1963 Hawaiian Long Form COLB: http://a5.vox.com/6a00c2252293c4604a0100a80270e5000e-pi
1962 Hawaiian Long Form COLB: http://passportsusa.com/wp-content/gallery/passportusa/edith_front.jpg
Obviously, the Long Form COLB’s have a whole lot more detailed information (including the birth Hospital) that the short form Obama posted (questionable authenticity) shows. Why hasn’t he posted his Long form COLB?
He might be a “Naturalized” Citizen, but there is nothing (to date) in the public sector to suggest he is a ‘Natural Born” Citizen, which is what the Constitution clearly requires for one to become POTUS.
Obama owes it to our country, and to the Constitution to go public with a copy of his 1961 Long Form original birth certificate (COLB).
by rxsid on Dec 3, 2008 at 4:36 pm
In Reply to Mr. Paul: Did Canadian law at the time of Arthur’s birth make him subject to Canadian law and a Canadian citizen at his birth by virtue of his father’s Canadian citizenship?
I think that if Obama had been born in Hawaii to a father that had citizenship in a country that did not claim jurisdiction over children of their citizens born outside of the fathers home country, then Obama might have a better argument.
And even more importantly, if someone violates the law and does not get confronted or caught, does that then become a precedence to exempt all subsequent persons who violate that same law? It is possible that Arthur just was lucky that nobody challenged him, but that hardly changes the definition of natural born citizen.
by Sid Davis on Dec 3, 2008 at 4:46 pm
In Reply to Sid Davis:
Canada was in the middle of UK and French Imperialism.
Canadian subjects were considered either UK or French Citizens then.
So if we stay rigid with the FATHER-clause and decide that Obama is considered UK/Kenyan at birth, so too was Arthur considered a UK/Canadian at birth.
President Arthur has just unleashed some genie.
by Mr Paul on Dec 3, 2008 at 5:00 pm
In Reply to Hugh:
John 10:1″“4 “†be careful with that quote, because it says that those who came before Him, were thieves and robbers, ergo Bush, Cheney & Co.
by Joss on Dec 3, 2008 at 5:01 pm
In Reply to Joss:
Have you seen the conrfirmation of Pres. Arthur (born in USA but to Canadian Immigrants with Irish Heritage).
Canada and Ireland considered the Queen of England (UK) as their Head of State at that time.
Meaning any English, Irish, Canadian immigrant who came to america had been born into their jurisdiction.
So if Pres. Arthur (whose father was born into UK Jurisdiction) was considered NBC and served as president, I dont see how different this is from BHO.
The only thing is if BHO was born in Hawaii. so far there is nothing to claim he wasnt (Hawaii State has confirmed his COLB details as valid).
Looks like SCOTUS will make some of us here sad this Fri.
by Mr. Paul on Dec 3, 2008 at 5:05 pm
Hawaiian law, at the time of Obama’s birth, allowed for FOREIGN born (i.e. outside of Hawaii) baby’s to be registered in Hawaii via a ‘Certificate of Live Birth’:
“[§338-17.8] Certificates for children born out of State…”
http://www.capitol.hawaii.gov/hrscurrent/Vol06_Ch0321-0344/HRS0338/HRS_0338-0017_0008.htm
In addition…
The Hawaiian govt’ officials NEVER stated that Obama was born in Hawaii. They only stated that they have seen his birth certificate on file. But a B.C. from where?? (see #1 above).
On October 31, 2008, Dr Chiyome Fukino, Department of Health, Hawaii, issued a press release in which she stated, in part:
“Therefore, I as Director of Health for the State of Hawai”Ëœi, along with the Registrar of Vital Statistics who has statutory authority to oversee and maintain these type of vital records, have personally seen and verified that the Hawai”Ëœi State Department of Health has Sen. Obama’s original birth certificate on record in accordance with state policies and procedures.”
http://hawaii.gov/health/about/pr/2008/08-93.pdf
For the Hawaiian ‘Policies and Procedures’ she referred to…see item #1 above which, again, affords foreign born babies to obtain a Hawaiian COLB (within 1 year).
by rxsid on Dec 3, 2008 at 5:14 pm
Was there ever a legal case validating that President Arthur qualified as natural born? The mere fact that he served does not mean that this was Constitutional. If this was never adjudicated, it may have no merit to a current judgement. It isn’t really a legal precedent, but just an interesting fact. SCOTUS is sworn to uphold and defend the Constitution, not look for excuses to avoid their duty.
by Bill G on Dec 3, 2008 at 5:17 pm
In Reply to Mr. Paul: Again, if the Supreme Court was not asked to look at the issue for Arthur, that changes little. Arthur just could have slipped through the crack because he did not have an antagonist such as Leo Donofrio.
And again, does one person violating a law and not being confronted or charged make all persons who subsequently violate the same law exempt from it?
by Sid Davis on Dec 3, 2008 at 5:20 pm
In Reply to Bill G:
In Reply to Bill G:
Case or no Case, it confirms that indeed America has at one time (its 20th VP and 21st President) been born into a foreign jurisdiction.
And America lived through it with no Legal dramas.
Same case today. This Arthur thing closed my doubts.
I know some fo you will ask me to re-focus on COLB and if he was born here. But at this stage, I have no reason to doubt the Hawaii SoS and governors.
by Mr Paul on Dec 3, 2008 at 5:23 pm
I would agree with Sid and Bill in that if indeed president Arthur was determined to be a British subject based on his father having been a British subject…even though he (Arthur) was born in the U.S., doesn’t mean it set precidence and therefore we should go ahead and ignore the Constitutional requirement for Natural Born Citizen…again.
There is, indeed, no reason to doubt the Hawaiian officials at this point. Why? They simply stated that they have seen his b.c. on file. Again, they never stated he was born in Hawaii, just that they have seen his b.c. Well, b.c. from where? They didn’t say. Remember, Hawaiian law allowed for foreign baby’s to obtain a Hawaiian COLB.
Therefore, the question remains. Where was he born? Why doesn’t he release his long form COLB or his passport(s) for that matter, that probably show he had Indonesian citizenship. Which if found to be true, would make him a Naturalized Citizen if anything.
by rxsid on Dec 3, 2008 at 5:46 pm
In Reply to Mr. Paul:
The difference however would be that Arthur’s parents were most probably naturalized, i.e. “natural citizens” of the US, or in a more general term, “native citizens”. (Although not “native born” or “natural born”.)
So we do have a difference to Obama Sr, who remained a non-US citizen.
But there were apparently some rumors that Arthur was born in Canada, and that the family moved to the US shortly thereafter. And this brings me to a theory”â€just a theory, and based on circumstantial evidence ONLY”â€, which might make Obama eligible, or at least cast some doubt on the plaintiff’s position.
The rumor was that Arthur was born in Canada. Since there is no proof, we have to assume that he was born on US soil, like Obama. But this rumor actually tells us an important thing, namely that the parents’ immigration to the US from Canada MUST have almost coincided with Arthur’s birth, otherwise there would not have been any basis for this rumor. So, if Arthur’s birth directly followed their immigration, it’s feasible to assume that the parents had not YET been naturalized. Therefore Arthur was born on US soil, but to two resident aliens, two immigrants awaiting their naturalization.
his is VERY weak, I know, and it’s just a thought.
by Joss on Dec 3, 2008 at 5:50 pm
Indeed, this issue of President Arthur is interesting and one that I must admit knew nothing about. In the short time I’ve spent researching his life (Arthur’s), I too have found nothing but rumors regarding his status of ‘Natural born’ citizen. I’ve also found nothing to suggest his parents were not naturalized (and therefore no longer British subjects). That would be a different scenario than Obama’s.
Some info I found:
“Political rivals long circulated the rumor that he had been born across the International Boundary in Canada in hopes of creating doubts as to his eligibility for the presidency (under Article II of the U.S. Constitution the president must be a natural-born citizen), although the rumor is generally regarded as untrue.”
http://www.nationmaster.com/encyclopedia/President-Arthur
“Life Before the Presidency”
http://millercenter.org/academic/americanpresident/arthur/essays/biography/2
Can someone post a link(s) to where we can see weather or not his (Arthur’s) parents were naturalized or not?
However, the issue of Arthur’s constitutionality of being president was never adjudicated in the courts (so far as I can tell), so no legal precident there. Which, again, leads me to say two wrongs don’t make a right. Just because it (may have been) done before doesn’t mean it’s ok to do again. Hopefully, the SCOTUS will look into it and demand the information. If he has it, fine. If not, deffinately not fine.
by rxsid on Dec 3, 2008 at 6:30 pm
however, there are no federally financed programs for students of African ancestry that he would have sought to take advantage, african exchange students have to have $$ in the bank and cannot get school loans…..Barack Obama and Michelle just recently finished paying off their school loans……….just like any other natural born american
by hafeezah on Dec 3, 2008 at 6:38 pm
In Reply to rxsid:
Right, even if Arthur was not a “natural born citizen”, his case would still not be a legal precedent.
by Joss on Dec 3, 2008 at 7:43 pm
In Reply to Joss:
You got me there! I had not thought of that connection concerning the quote. As you are aware, I was actually comparing the necessity of going through the right door there and Obama going in some other way.
I will take that under advisement. Less friendly people would certainly jump all over!
I have just been reading about Chester A. Arthur!
by Hugh on Dec 3, 2008 at 7:50 pm
hafeezah, huh? While it is, no doubt, easier to obtain financial aid for U.S. citizens to attend U.S. colleges, it most certainly is possible…even for ‘international’ students from an African country to obtain aid via the:
“2008-09 International Student Financial Aid Application”
However, Obama’s college records, you know…those super top secret records that he doesn’t want the American people to see, probably show him as applying for admission (& yes, possibly financial aid of some kind) as an Indonesian citizen and not as a Kenyan citizen.
by rxsid on Dec 3, 2008 at 8:11 pm
Reading this newspiece in Hawaii’s official State paper from the Hawaii officials confirms to me that its the Hawaii State that made alterations (redactions) to the copies they gave to BHO to prevent against possible scammers or info-hackers.
http://www.honoluluadvertiser.com/article/20081101/NEWS05/811010345/1001/localnewsfront
Obama’s certificate of birth OK, state says
Health director issues voucher in response to ‘ridiculous’ barrage
By Dan Nakaso
State Health Department employees continue to be barraged by requests from people demanding to see Barack Obama’s birth certificate, including some who have called the department’s registrar of vital statistics at home “†in the middle of the night.
“This has gotten ridiculous,” state health director Dr. Chiyome Fukino said yesterday. “There are plenty of other, important things to focus on, like the economy, taxes, energy.”
So, in what likely will be a vain attempt to halt the inquiries, Fukino yesterday issued a statement saying that she and the registrar of vital statistics personally inspected Obama’s birth certificate and found it to be valid.
Will this be enough to quiet the doubters?
“I hope so,” Fukino said. “We need to get some work done.”
Fukino issued her statement to try to stomp out persistent rumors that Obama was not born in Honolulu Ҡand is therefore not a U.S. citizen and thus ineligible to run for president.
Fukino, however, repeated the Health Department’s position that state law prohibits her or any other officials from actually releasing the birth certificate, which Obama’s campaign says shows he was born in Honolulu on Aug. 4, 1961.
“There have been numerous requests for Sen. Barack Hussein Obama’s official birth certificate,” Fukino said in the statement. “State law (Hawai’i Revised Statutes ¤338-18) prohibits the release of a certified birth certificate to persons who do not have a tangible interest in the vital record. … No state official, including Gov. Linda Lingle, has ever instructed that this vital record be handled in a manner different from any other vital record in the possession of the State of Hawai’i.”
The issue has generated attention from around the world Ҡand court challenges across the country.
Obama critics in Ohio, Seattle and Philadelphia have tried to get their state officials to remove Obama’s name from their election ballots until his birthplace could be confirmed. Judges, so far, have dismissed all of the suits.
A New York Internet author named Andy Martin has a Circuit Court hearing date set for Friday in Honolulu “†three days after Tuesday’s presidential election “†on his lawsuit to get a certified copy of Obama’s birth certificate. Hawai’i's Supreme Court denied Martin’s request on Oct. 22 to expedite the hearing.
In Hawai’i, birth, death, marriage and certain divorce documents can only be released to people with a “tangible interest,” such as the people themselves, their parents, spouses, grandparents or other relatives.
As a result, Fukino said she does not believe Health Department officials could release Obama’s birth certificate to the public even with his permission, although she would need to get a legal ruling to be certain.
Bloggers and Obama critics allege that Obama actually was born in Kenya, but have provided no documentation. Obama supporters and satirists, such as Jon Stewart of “The Daily Show” on Comedy Central, counter that he actually was born on Superman’s home planet of Krypton.
Obama’s campaign has posted a copy of the Honolulu birth certificate on its Web site at http://www.fightthesmears.com/articles/5/birthcertificate. The nonpartisan Web site http://www.Factcheck.org says the document appears to be authentic.
But the Web site documentation has only generated more fuel for skeptics.
They point to the lack of an official state seal on the document, although Health Department officials say seals often are placed on the backs of birth certificates.
Bloggers and other skeptics also wonder why a large black rectangle appears next to the words “CERTIFICATE NO.”
Health Department spokeswoman Janice Okubo said the blackened portion is a department file number that was redacted to prevent hackers from breaking into the Health Department’s system.
Reach Dan Nakaso at dnakaso@honoluluadvertiser.com.
by Joe Blog on Dec 3, 2008 at 8:17 pm
Money and power… it only brings lies. Politicians are the biggest whores in the world. I am tired of being lied to. This is not an issue for supporters vs non supporters for Obama. There are too many diversions. The situation comes down to the supreme court reviewing the facts and making a ruling. Like it or not, we as a nation will have to accept the ruling and live with it. Personally, I think the issue should be more about why the mainstream media has ignored this, but yet, we know all about what Brittney Spears wore for her birthday bash. Personally, I have a wait and see attitude but a general mistrust with people misusing their authority to break the law. Overall, I feel, that we may never know what actually is or is not true. We can not invalidate someone’s concern when we ourselves are without all the facts. Our consitution is the greatest in the world. Therefore, in all fairness, those with a concern should be allowed to exercise their legal rights regardless of how others may feel. Let us all find peace in the outcome.
by ddriza on Dec 3, 2008 at 9:17 pm
Found another quote from Bingham. This one is from the year 1862 (Congressional Globe pg. 407 37th Congress):
“Does the gentleman undertake to say that here, in face of the provision in the Constitution, that persons born within the limits of the Republic, of parents who are not subjects of any other sovereignty, are native born citizens, whether black or white? There is not a text-book referred to in any court which does not recognize the principle that I assert.”
The provision he is referring to is Article IV, Section II, citizens of the states are citizens of the united states. What is interesting is no one denied it.
by JimAZtec on Dec 3, 2008 at 9:53 pm
http://www.fec.gov/law/litigation/berg_ac_fec_opp_emerg_mot.pdf
US Govt – Federal Election Commission requests SCOTUS to dismiss Philip Berg’s case.
The stage for the “hand down” is being set up.
Sorry Guys. Not looking good for Friday.
by Joe Blog on Dec 3, 2008 at 9:55 pm
In Reply to ddriza:
Hear, hear! This country has shown historical greatness by electing the first black president, overcoming the burden of slavery and segregation, and if the SCOTUS rules Obama eligible for sound reasons, that’s absolutely fine. And if for other sound reasons he’s ruled ineligible, the country will have shown the same amount of greatness in other ways, by preserving and honoring the Constitution, and not falling for a mere “political reality”. It would be a bittersweet victory, but I’d rather have a passing tragedy of millions than once again “cabal, intrigue, and corruption” (Alexander Hamilton). So I hope that the SCOTUS will accept the case.
by Joss on Dec 3, 2008 at 10:03 pm
In Reply to Joe Blog:
Let’s wait and see. Berg’s case is a different cup of tea.
by Joss on Dec 3, 2008 at 10:07 pm
I’ve seen early 18th century Certificates of Birth granted by various town clerks that required the parents to certify their citizenship. Presumably this would determine whether their children where natural born citizens of the state.
by Harris on Dec 3, 2008 at 11:42 pm
In Reply to Sid Davis:
You are right to doubt the quality of the example of Chester A. Arthur as binding legal precedent in this case. At best, his example can be used as part of a public policy argument provided to SCOTUS for their consideration as they decide how to rule. And it’s not clear to me that Barack Obama will fare well by comparison to Chester A. Arthur.
As we know, Mr. Donofrio’s proposed rule is that nobody who is born with dual citizenship can ever be a constitutionally-valid natural born citizen. As shown in my posts below, I am proposing a more refined rule that recognizes those who are born with dual citizenship as natural born citizens, but that also strips such status from the same people should they take advantage of the advantages, privileges, or protection afforded by their foreign citizenship in any real way once they are adults.
Viewed in this way, and assuming he in fact held dual citizenship in the U.S. and Great Britain at birth (would like to see the facts/law on this), Chester A. Arthur’s example may be the one that proves my rule. For example, we may learn, upon further research of his adult life, that Chester A. Arthur was never known by anyone to take even a first baby step in the direction of taking advantage of his foreign citizenship. Rather, based on the little I know of his life so far, it appears as if Chester A. Arthur was a model citizen and patriot for whom the notion of citizenship in any country other than the United States was just that: an abstract notion with no basis in his reality. In other words, likely as not, this was a man with great integrity and appreciation for the country of his birth and childhood, and who as an adult was not particularly interested in trying any other country’s citizenship on for size.
To my mind, the important question now is not whether the supposed fact of Chester A. Arthur’s dual citizenship at birth and presumed status as a natural born citizen paves the way for Barack Obama to assume the office of POTUS to which he has been elected. Rather, we should be seeking to determine whether Barack Obama’s conduct as an adult reflects a similar lack of interest as shown by Chester A. Arthur in the privileges, advantages, and protections potentially available to him as a citizen of a foreign power.
by Publius on Dec 4, 2008 at 5:19 am
In Reply to Publius:
As a further matter of interest, I saw presented on another site the information that in fact Chester Arthur’s parents came from Ireland and were in all probability were naturalized by the time of his birth nine years later. So there is some factual question here, not that it should matter.
All that matters is whether or not the Justices read the Constitution, understand what was intended WHEN IT WAS WRITTEN, and correctly apply that to Obama and McCain. Of course they must first decide it this issue is important enough for them to take the time to decide the case or cases that they are being asked to accept for review. Seems to me that this is a matter of great importance, but we all know that Souter and Ginsberg have already shown how unimportant the issue is.
From what I understand 4 Justices actually value the Constitution, and the others are more in the make it up as you go category, so any decision I would expect to be close.
by Sid Davis on Dec 4, 2008 at 5:55 am
In Reply to Publius:
Good questions. Especially on the adult issue.
Here is what we know:
(a) Much earlier before Chester Arthur became president, and from an early age to his mid-life ages, he used to be a visitor almost every other month (and long holidays) to his grandfathers home town in Canada and once in a while made the trip across the pond. He kept in touch with his relatives in Canada and Ireland and when some of them came over as immigrants, he was a point of call and reflection adn advice. Despite this all, Chester (recognized by Canada-under UK jurisidiction – as a dual citizen of USA-primary and Canada-secondary), never forfeited his USA citizenship.
(b) Obama met his ABSENTEE father (more like a sperm donor) only twice in his life. Raised by a single mother in a college dorm and then by his grandparents, relocated with his mother to Indonesia and mentored by a step father, then relocated back to USA to be raised solely by his grandparents (white americans by birth and heritage). From his mature age, its on record that Obama never renounced his USA citizenship and kept it. Its on record that Kenya never recognized him as a citizen since 1963 (kenya laws forbid dual citizenship) which implies that his possible-UK citizenship expired in 1963 when Colonial Britain left Kenya. Obama’s first trip to UK and then Kenya was when he was a college graduate and in the middle of his relocation to Chicago. Its also on record (church records at Trinity) that Obama spent 20-years in Chicago and considered that his home and kept his roots.
Unlike Arthur, Obama’s father was never in his life and not influential.
Unlike Arthur, Obama’s father divorced his mother and moved on to re-marry. Ditto Obama’s mother.
Like Arthur, Obama considered USA as his home and has spent most of his entire adult life in the USA.
Like Arthur, Obama has over 16 years of public service (director for community services for 6 years, state senator for 10 years, us senate for 4 years).
Like Arthur, Obama spent more than 16 (of his 20 years of schooling) in the USA and graduated from Ivy League schools.
Like Arthur, Obama got elected to the USA presidency DESPITE persistent challenges and rumors of his “foreigness”.
Like Obama, Arthur was born to an immigrant father (tracing his grandfathers citizenship to British-Canada).
And like Arthur, the current fucus on a “BC” will soon die away once the Electoral College meets on Dec-15.
by Mr. Paul on Dec 4, 2008 at 8:18 am
In Reply to Publius:
Yes, Arthur’s case would be inadmissable as legal precedent. But nevertheless it’s very important. It doesn’t really matter if President Arthur had been a “natural born citizen” or not, both of which is feasible. But his case (like Obama’s) tells us one thing: that the system is not perfect and that therefore every election and every candidate needs to be closely guarded and verified. So it’s the d@mn duty of the SCOTUS to allow the case, schedule a hearing and show the country that there are actually still people around, who are concerned with the Constitution’s perpetuation.
But Arthur’s case also shows that a President with the odium of illegitimacy need not be the dictator that many are fearing this time around. I’m pretty sure that if they had found proof of Arthur’s purported ineligible, they would’ve taken away his presidency. That could happen to Obama, of course.
by Joss on Dec 4, 2008 at 8:43 am
Obama Will Be The Third U.S. President Born With Dual Nationality
(a) The first was James Buchanan. His father (James Buchanan) was a citizen of Ireland who immigrated to the United States and was naturalized. Ireland at the time was part of the British Empire. Under the force of nemo potest exuere patriam. Buchanan remained a British subject his entire life under British law and bestowed this status to his son at his son’s birth. This is not dissimilar to Barack Obama’s status as a British subject at his own birth. Buchanan would have been a British subject his entire life under British law.
http://www.phmc.state.pa.us/ppet/buchanan/page1.asp?secid=31
(b) The second was Chester Alan Arthur. Arthur, like Buchanan, was the son of an Irish immigrant (William Arthur). Like James Buchanan’s father, Arthur’s was also naturalized. AS was the case with Buchanan, Arthur was also a British subject under British law. Unlike Buchanan, Arthur’s British nationality was rescinded with the passage of the Naturalization Act, 33 &34 Vict. c. 14 in 1870 (at age 41).
Arthur is an interesting case because when claims to his dual nationality as a smear did not work out, a new smear that he was born in Canada as opposed to Vermont was contrived. This makes Obama the second U.S. president to have unfounded smears of birth in a foreign nation presented as a reason for his ineligibility to be president.
Interesting how things work out, isn’t it?
Oddly enough, it was Democrats and disaffected Republicans who smeared Arthur (a Republican) in the late 19th century.
Politics and political smears have come full circle.
by Mr. Paul on Dec 4, 2008 at 9:02 am
http://www.examiner.com/x-1163-Atlanta-Public-Policy-Examiner~topic35809-Chester-Arthur
Showing entries for Category: Chester-Arthur
First generation presidents not always on history’s side
1 comment November 10, 11:00 PM
by Perry B. Goodfriend, Atlanta Public Policy Examiner
It is no secret that President-elect Obama had a Kenyan father. (In case you missed it, there was lots of coverage of Kenya’s reaction to the candidate’s victory on November 4, including some celebration by his grandmother.) But he is not the first president of our country to have at least one foreign born parent.
Corbis Mr. Obama will be the seventh man sworn in as President of the United States who has a parent born outside our borders. The other six are:
Thomas Jefferson (English mother)
Andrew Jackson (Scots-Irish parents emigrated from Northern Ireland);
James Buchanan (Irish father)
Chester Arthur (Irish father)
Woodrow Wilson (Scottish mother);
and Herbert Hoover (English-Irish mother).
Of those, only Andrew Jackson’s parents were both not born American.
by Mr Paul on Dec 4, 2008 at 9:19 am
So if I understand correctly, it this caveat in U.S. constitutional law is to be believed, there are actually three tiers of citizenship, not two?
Naturalized citizens, those born outside the United States.
Natural born citizens, those born in the U.S. whose parents are citizens of the U.S.
And citizens with at least one non-citizen parent, who are then neither natural born or naturalized (as classically defined)?
So all future presidents would be forced to prove both his or her parents where citizens. Seems like a reversal of practice.
by TJ on Dec 4, 2008 at 10:35 am
In Reply to Mr. Paul:
The two examples are important. The question that arises from them, is the following:
IS BRITISH CITIZENSHIP EQUAL TO SUBJECTION UNDER AND ALLEGIANCE TO THE BRITISH CROWN?
To elaborte further: With the process of naturalization, any foreign citizenship is discarded, which is different in the case of Obama’s father, who was never naturalized.
The question however is, if the subjection under the British crown is automatically discarded in tandem with the citizenship. This is a question I had posted earlier (either here or at another blog).
Is the status of “natural born subject” under the British Crown something in perpetuity, no matter what happens with the subject’s citizenship? I faintly remember reading sources, which actually said that a British citizen’s allegiance to the monarch is similar to the concept of divine allegiance, something that is perpetual, and in the monarchic allegiance it is also transferred onto the children along the patrilineal succession.
This would be a question to someone who knows more about British law than myself.
So we’re facing three possible scenarios concerning subjects of the British crown and US naturalization:
(a) monarchic subjection is perpetual (i.e. until a subject’s death), even if citizenship is changed; it is not equal to citizenship; therefore Arthur and Buchanan were under dual jurisdiction; this either means that they were illegitimate Presidents or that they serve as precedent for Obama, which in the latter case would mean that Obama can inaugurate in Jan 2009.
(b) monarchic subjection is perpetual (i.e. until a subject’s death), even if citizenship is changed; but due to the naturalization process, the subject’s child can not fall under the father’s jurisdiction anymore; while the father remains in allegiance to the crown, the patrilineal succession is terminated; i.e.: no precedent for Obama; Obama might not be allowed to inaugurate.
(c) monarchic subjection is not perpetual, but ends completely with naturalization of a subject together with the foreign citizenship; no precedent for Obama; Obama might not be allowed to inaugurate.
Can anyone answer this? (I can’t.)
by Joss on Dec 4, 2008 at 10:39 am
In Reply to TJ:
Great summarization. Thats what the “BC movement” want us to to believe.
As it stand in every legal document (Constituion, Amendments and State Dept Manuals), citizenship is defined as two categories:
(a) Born of the soil (jus soilis) or Born of Heritage (jus sanguis). All considered “natural born” as in naturally born, self evident, witnessed.
(c) Not any of the above and hence NATURALIZED.
But upon discovereing the following:
- We had 7 presidents with at least one immigrant parent
- Of these 7, 3 had an immigrant father
- Of these7, 3 had an immigrant mother
- Of these 7, 1 was botn to immigrant father and mother
Its become clear this “BC and NBC” movement is confused.
by Mr Paul on Dec 4, 2008 at 10:41 am
In Reply to Joss:
Good call. Coz you can also say that:
his mothers divorce from his father (within a year) and his divorce from his step-father (within 3 years) innoculate him as he was a CHILD.
it all comes down to your earlier suggestion. what has been obama’s motivation since he gained 21 years.
what we know is that he never renounced US citizneship, never took on foreign ones and has lived for 22 years in Chicago.
by Mr Paul on Dec 4, 2008 at 10:47 am
In Reply to Mr Paul:
In Donofrio’s and many other people’s interpretation, this discussion can only be about a candidate’s status at birth, which is kinda logical, considering that the term is “natural BORN citizen”.
So it would be interesting to find out what legally happened to the fathers of all those Presidents, i.e. their father’s monarchic allegiance and subjection upon US naturalization. Did their monarchic subjection end together with their British citizenship? Did it continue? And if it continued, was future patrilineality terminated? Any experts on British “common law” here?
by Joss on Dec 4, 2008 at 10:57 am
In Reply to Mr. Paul:
Very interesting information. Thanks for taking the time.
I’m interested to know the extent of your faith in a system in which dual citizenship at birth has no effect on one’s eligibility for the office of POTUS.
I presume you would agree that one who held U.S. citizenship and, say, U.K. citizenship since birth, maintains his or her contitutionally-valid natural born citizen status through childhood and into adulthood, later fully and completely renounces his or her U.S. citizenship (retaining his or her British citizenship), remains a resident of the U.S. (i.e., never moves to the U.K.) in order to meet the age and residency requirements, is nevertheless ineligible for the office of POTUS. That is, you can’t establish presidential eligibility based solely on the fact that you were a U.S. citizen from birth for, say, 25 years. You must actually be a U.S. citizen now.
Although it is a somewhat closer question, I presume that you will agree that if the same person discussed above thereafter renounces U.K. citizenship in favor of re-naturalization as a U.S. citizen, never having moved out of the United States, is still, and always will be ineligible for the office of POTUS. In other words, even though the person in question was born a U.S. citizen, and is a U.S. citizen now, he or she can no longer lay claim to being a constitutionally-valid natural born citizen. You must have held U.S. citizenship continuously since birth, with no non-healable breaks in your citizenship record.
Now assume that the person in question never did renounce his or her U.S. citizenship, but instead of living in the U.S. his or her whole life, was spirited away to the U.K. by his father over the objections of his U.S. citizen mother, spends his or her entire childhood there, becones an adult there, and during adulthood, is elected to parliament, eventually being named a Knight of the Realm by Queen Elizabeth II. He or she then returns to the United States for the required period of residency, and runs for president when finally eligible based on the well-known age and residency requirements, and wins by a wide margin. According to your theory, there is nothing standing between this person and the office of POTUS.
Though this latter result may have been odious in the extreme to the framers of the U.S. Constitution, and not at all what the signers and the ratifiers would ever have wanted to see happen, I nevertheless do understand that the various amendments to the U.S. Constitution have worked many changes to the meaning of the original text. For example, it may well be that at least one of these amendments, in order to be given an appropriate meaning in its own right, must be considered to have worked a change to the original meaning of the term “natural born citizen” such that that term now means something other than what it once meant.
But if we are to believe that the current meaning of the term “natural born citizen” would permit a British Knight to waltz across the pond, charm the pants off the U.S. citizenry, and snatch up our Presidency, I’m going to have to get that in writing from the pen of the Chief Justice of the Supreme Court. Oh, and for good measure, I’d like to see it accompanied by a carefully worded and reasonably lengthy opinion, replete with a thorough and satisfying analysis based on a full set of facts. It also wouldn’t hurt to see those facts willingly coughed up by all interested parties for all to see, so that no reasonable question is left unasked or unanswered. But hey, I’m just a stick in the mud, I suppose.
by Publius on Dec 4, 2008 at 11:03 am
In Reply to Joss:
I don’t know for sure, but my personal OPINION is that none of these former Presidents’ cases serves as a precedent for Obama.
They can only serve as a precedent, if US naturalization does not also terminate monarchical allegiance. Because if it didn’t, the allegiance, if interpreted as “divine” (i.e. “super-natural”) would logically continue patrilineally.
This interpretation and/or concept of British “common law” must by definition end upon US naturalization. Otherwise a large number of descendants of US-naturalized former British subjects would today still be subjects to the British crown, incognito (so to speak). This would mean that the US nation and many of its citizens were de facto not independent of British rule. I think that would be a totally nonsensical idea.
If this monarchic subjection is not “divine” at all, then it would logically end upon US naturalization.
So I think these Presidents cannot serve as precedent for Obama, simply because their fathers had been naturalized.
by Joss on Dec 4, 2008 at 11:13 am
In Reply to Joss:
We are arguing over nothing.
Tell me how come Pres. Buchanan (father was British and NEVEr NAUTRALIZED) was able to be POTUS?
And what about Pres. Jackson (both parents were Immigrants from UK) and mother naturalized but father died before doing so?
Nobody is saying Legal precedence here.
This info was just to sort the chaff from the wheat.
By that i mean, make people realzie that Obama’s case is not the first, and wont be the last.
after all by 2025, 60% of american will be immigrant-1st-gen
by Mr Paul on Dec 4, 2008 at 11:30 am
In Reply to Mr Paul:
The link on Buchanan posted below does not say that his father was naturalized, only that he was an immigrant. Jackson’s father died before the birth, so the issue of transferring British jurisdiction onto the child never posed itself, because “natural born citizen” refers to the moment of birth, not to any other moment (including conception).
So we actually may be debating over something here. To my mind, none of these cases has any relevant connection to Obama’s situation, unless we can clearly show that a parent of a US President was NOT naturalized. (Then the SCOTUS could rule in favor of Obama.)
by Joss on Dec 4, 2008 at 12:13 pm
In Reply to Mr Paul:
The seven-presidents biography has been slow in coming and is not necessarily the easiest thing to digest at this late hour.
A “dog that didn’t bark” theory works for regulatory and statutory law, but does not suffice for purposes of an explication of constitutional law, particularly in a case of first impression.
I can’t imagine that this issue will be snuffed out with anything short of a full and complete decision on the merits that leaves no doubt as to the current meaning of the term “natural born citizen”. I don’t care how many presidents have passed in and out of the white house, or whose credentials may have seemed questionable in the past.
The time is now to explain to the American people the true nature of the country we are living in as of this particular moment. Once we know our present condition, we can either accept if it is to our collective liking, or take positive action to change it if it is not.
But if nobody in authority is willing to explain to us where we are today, there will be no reliable record of our current condition. In order to know how far you have gone, or in what direction you have traveled, you must know where you were, and when you were there. Otherwise, how are we as fellow Americans any different than the proverbial patch of mushrooms?
It has been nearly 220 years since we’ve been told in plain language, and from a source that is irrefutable, who is eligible to hold the office of POTUS, and who is not. The framers, signers, and ratifiers of the Constitution were clearly animated by a strong desire to cut off the possibility of foreign powers insinuating themselves into our national affairs and politics by way of the person of the President. Their means for doing so was condensed into the concise but seemingly impactful phrase “natural born citizen”.
Is it so that the original meaning of the phrase “natural born” was, simply, “native born”? If not, has the meaning of the phrase “natural born” changed over time, such that it now is synonymous with “native born”?
If “natural born citizen” now means, simply, “native born citizen”, can an individual born in Panama, on land that was only on temporary lease to the United States, and under circumstances that moved the U.S. Congress to pass a law making that individual a citizen only retroactively, lay claim to constitutionally-valid natural born citizen status? If not, I would think that there are quite a few Electoral College electors from states recently won by John McCain who will be interested to know this salient fact before they make the mistake of voting for an ineligible candidate.
by Publius on Dec 4, 2008 at 12:22 pm
In Reply to Joss:
I have been reading about the fathers of President Buchanan, Jackson and Arthur having naturalization conflicts in connection to their son’s Presidencies.
If dual citizenship was allowed against the written U.S. Constitution and the Supreme Court might use that as a possible prescident then it is mandatory that Obama yield up a copy of his certified copy of his birth certificate.
If he is born in Hawaii and this loophole is upheld he would be eligible.
If he is born in Kenya, I think he fails any possible precedent loophole.
Also, errors in the past does not mean we need to repeat them. The Framers’ intent is still the Framers’ intent. I am making the assumption that the Framers did not want dual citizenships.
What do you think?
by Hugh on Dec 4, 2008 at 12:27 pm
Re: Above Chaves Quote: Was Obama’s father a member of our society at birth? I beleive this is the gist behind the Fourteenth Amendment – the jurisdiction must be a political jurisdiction, i.e., member of the body politic.
by Harry James on Dec 4, 2008 at 12:40 pm
In Reply to Hugh:
Your answer is my answer:
“errors in the past does not mean we need to repeat them.”
And I absolutely second Publius’ remark:
“A ‘dog that didn’t bark’ theory works for regulatory and statutory law, but does not suffice for purposes of an explication of constitutional law”
As I said below somewhere: Even if one or more former Presidents had possibly been ineligible, it’s not a precedent. It can only serve as a reminder that the Constitution needs to be served and protected.
by Joss on Dec 4, 2008 at 12:55 pm
In Reply to Hugh:
You said:
“If dual citizenship was allowed against the written U.S. Constitution and the Supreme Court might use that as a possible prescident then it is mandatory that Obama yield up a copy of his certified copy of his birth certificate.”
I say:
I have made this point as well, and consider it a very important one to drive home.
Let’s assume for the moment that the Supreme Court ultimately decides to render a decision on the merits that, after over 200 years, finally provides an authoritative definition for the term “natural born citizen”. Can anybody think of a realistic scenario under which the Supreme Court will be satisfied with anything other than the most reliable documentation available to demonstrate the precise circumstances of Barack Obama’s birth?
Why should the Supreme Court be satisfied with derivative documentation, the reliability of which has already been fully discounted by Hawaiian officials charged with distinguishing native (blood) Hawaiians from other Hawaiian citizens for purposes of distributing special benefits?
Is president-elect-elect Barack Obama’s privacy really that critical to our survival as a nation that the Supreme Court should defer to his personal wishes in this regard?
by Publius on Dec 4, 2008 at 12:58 pm
Regarding Presidents James Buchanan and Chester Arthur (allegedly) having dual citizenship at birth:
Can someone link to this as fact? I’ve done a little looking around but couldn’t find anything but recent opinion.
Also, if their parents were Naturalized before they were born, would their parents still be British subjects and therefore confer such to their children (the future Presidents in question)?
Either way, can someone link to documentation stating their parents’ status with regards to Naturalization? Again, here, I can only find recent opinion and speculation.
Lastly, I would still think that since none of those issues were ever tried in a court of law (afaik), there is no legal precident to go back and say look…it happened before and the courts ‘cleared’ it…essentially. So again, just because it (may) have happened in the past, doesn’t mean it should be done again.
Would love to see some actual historical records/facts regarding that issue of Presidents Buchanan and Arthur supposedly having dual citizenship at birth.
Thanks!
by rxsid on Dec 4, 2008 at 1:04 pm
In Reply to Mr Paul:
This third class as created in this interpretation is quite ambiguous. For instance, how would orphans whose parentage as citizens could not be identified be classified? Would they be conferred rights as full natural born citizens if adopted by citizens or would they be automatically excluded from being president? How would that work given the nature of the anonymity of adoptions, even if you knew that one parent was not a citizen? If you confer rights based on the adoptive parents that would create yet another class of people who be treated differently for citizenship purposes which could get you into issues of due process.
In Reply to TJ:
by TJ on Dec 4, 2008 at 1:11 pm
In Reply to Mr Paul:
Agreed. This third tier as defined here also departs from what most Americans believe, especially immigrants Americans. Basically this is a reinterpretation of who can be president to crowd out children of immigrants while rolling up people with suspicious parentage along the way.
Here are couple more questions, would you have to provide birth certificates of your parents in order to prove beyond a shadow of a doubt they they are citizens? How would that work? Would a simple declaration on the birth certificate of the candidate that both parents were born in the United States be enough? What if the parents were naturalized (in which case their place of birth would outside the U.S. on the candidates birth certificate)? Would the candidate then have to provide naturalization documentation for each parent to prove their citizenship? How far would this actually go?
Upholding this would in effect place the family history of every presidential candidate under intense scrutiny. A very slippery slope.
by TJ on Dec 4, 2008 at 1:34 pm
“Mr. Obama’s Eligibility to be Aired Monday at the National Press Club”
http://www.marketwatch.com/news/story/Mr-Obamas-Eligibility-Aired-Monday/story.aspx?guid={35E191D7-D7BD-4722-BAF1-E6C0CBC18EA3}
“Prior to the start of the conference, at 10 am, the Supreme Court of the United States is expected to announce whether it will consider applications from these attorneys who have asked the Court to delay the proceedings of the Electoral College pending a determination of the underlying constitutional question – the meaning of the “natural born citizen” clause of Article II of the Constitution and its application to Mr. Obama.”
by rxsid on Dec 4, 2008 at 1:51 pm
“We have just observed that they have a right to enter into the society of which their fathers were members.”
Yup. Brings a whole new meaning to “who is your daddy?”
I think it was Monroe who said “we were made citizens through our fathers.”
by JimAZtec on Dec 4, 2008 at 2:49 pm
In Reply to JimAZtec:
So under that interpretation we would have to add paternity testing presidential eligibility requirements for president as well as checking the citizenship status of presidential candidate’s parents. Illegitimate children would be automatically disqualified from the presidency I suppose. Sounds very far fetched. The farther this goes the more slippery it becomes.
by TJ on Dec 4, 2008 at 3:08 pm
In Reply to TJ:
Exactly. And thats why SCOTUS will punt and dismiss these cases.
The dice is already rolled. Why give way to re-interpretations fuelled by mis-directed political anger.
by Mr. Paul on Dec 4, 2008 at 3:12 pm
In Reply to rxsid:
Let them set themselves up.
Once the SCOTUS decision punts and dismisses their cases, they will be lucky to even get a blip of mention in MSM evening news except as “MOONBATS”.
Something tells me that this Press Conference already assumes that SCOTUS will punt and they want to prepare a defense for that decision via “forcing some news”.
Lets wait and see how many MSM members show up for this.
Just coz you sound off at Nat Press Club doesnt make it full.
by Mr. Paul on Dec 4, 2008 at 3:16 pm
This is for Publius and for Joss:
I am certainly glad to be in agreement with you guys! I speak as an accountant having done some auditing. When a company’s financials are really fouled and fraud is suspected greater testing and adjustments are necessary to conform the financials to generally accepted accounting principles. So, the auditing has to be much more extensive so the public (small or great) can have confidence.
Such is the case with Obama. Authority flows down from the head. He wants to be President. He is a Constitutional Law professor. Yet, he acts like he is running for dog catcher! This is madness to me!
Publius: SCOTUS should require the most stringent examination of his case. We need to see every document and the documents should fit together. Furthermore, we should review these documents in light of his associations which are deplorable. All this should fit together.
Other candidates might not need the same amount of vetting due to their information that they release willingly, their circumstances, the upright associations, their responses, attitudes!
Since the press failed to report the facts, SCOTUS must demand all the facts now. Obama cannot make lame excuses (racist, “you don’t do vet other candidates to this extent). Well, Obama is not our usual candidate, and he has very unusual baggage. He is hiding in the extreme.
Joss: I first saw Publius’ A “dog that didn’t bark” theory works for regulatory and statutory law, but does not suffice for purposes of an explication of constitutional law, (particularly in a case of first impression.) … in your reply.
In this case, the Constitution is “The authority that flows from the head”. Legally the Constitution is of first importance. Subsequent case law, opinion, statutes, and personal desires cannot control it.
So, the greater the authority and responsibility, the greater the examination is required. All this so we can have greater confidence!
Since Chief Justice John Roberts will swear in the President-elect, Obama’s case directly touches the SCOTUS and their oaths, like none other. So, the SCOTUS must respond clearly. I think Robert will have an unusual pull on the others to be in agreement. I do not think they can afford to be wrong on this issue, and it must a decisive. They know they are the guardians of the Constitution.
by Hugh on Dec 4, 2008 at 3:42 pm
In Reply to TJ: No need for paternity testing, just common sense … something the govt. is incapable of due to Wong Kim Ark. The Presidential qualification should be no different than any other job qualification. You can lie on your job application and might get away with it … but if you get caught….
by JimAZtec on Dec 4, 2008 at 4:10 pm
In Reply to JimAZtec:
I guess I am confused about this idea of common sense.
1. Given the accusations over his birth certificate, I would think there needs to be a discussion about what constitutes a valid citizenship document. It seems to me that though Obama did not provide a full birth certificate, he did provide a notarized, sealed document from the state of Hawaii stating he was born there. Also, the question should be is the type of document he provided satisfactory for the State Dept. for the purposes of getting a U.S. passport? If it is, then that should be enough proof for anyone… even though it might not be a full copy.
2. Common sense says that if you start making more than two tiers of citizenship for the purposes of presidential eligibility then you are creating any multiple classes of people who will have an extra burden of proof based on family circumstance. That means that every candidate who does not have the picture-perfect family will be opened up to undue scrutiny beyond their immediate personal life. What if the candidate’s parents will not cooperate with such scrutiny, should that result in disqualification? Should candidates be forced to take their parents to court to get the need documentation? Seems overly messy. Will adopted children be forced to track down their birth parents? Should children who know their parents be treated differently from adoptive children? Will then illegitimate kids be treated differently because they don’t know who their father is?
3. Common sense says that if there is a birth announcement in the local paper from 1961 saying he was born in Hawaii, he was. Regardless of whether you have seen his birth certificate or not. What purpose would there have been to lie about it so long ago?
4. Placing the burden of parentage on the idea of natural citizenship defies current understanding of the law. As of now, in U.S. law there are only two tiers of citizenship, those who are naturalized and those who are not. (There is a process for naturalizing citizens, otherwise how would you tell. What happens if people start lying on their children’s birth certificates now? Will parents have to bring their birth certificates to the hospital when their child is born. Common sense.) This interpretation would create a third tier of those who are neither.
5. Common sense for any SCOTUS watcher says they will interpret the precedence of law as it stands now, not two hundred years ago. The U.S. government in conferring citizenship has used a two-tier not system, naturalized and natural born. Naturalized citizens have meant those not born in the United States primarily to non-citizen parents. Babies left on the door step, not even knowing whether they are born here, are conferred the rights of natural citizens. So a conservative court is unlikely to create a third tier of citizenship just for the sake of interpreting presidential eligibility as Mr. Paul has oft stated.
As someone who covets common sense, I ask you how would you treat an orphan whose parentage is unknown? Would you say he or she has no right to run for the presidency and support these types of law suits? What does common sense say? There are so many more ways as Mr Paul says to see how this undermines common practice and leads to a situation where all kinds of people who are natural born citizens in every way would not be able to run for the presidency or subject to lawsuits. Common sense says this goes against what the founders had in mind.
by Anonymous on Dec 4, 2008 at 5:51 pm
In Reply to Anonymous:
Birth certificate is irrelevant to the discussion here.
“Placing the burden of parentage on the idea of natural citizenship defies current understanding of the law.”
That is Natural Law, a law that has as old as man himself. Natural citizenship does not defy American law, but does defy current fictions of law.
“As someone who covets common sense, I ask you how would you treat an orphan whose parentage is unknown?”
Same way as they had always been treated: Adoption.
by JimAZtec on Dec 4, 2008 at 6:42 pm
In Reply to Mr. Paul:
Was just posting as FYI, not as some sort of fact about what SCOTUS (might or might not) do, or anything else. Just FYI
by Anonymous on Dec 4, 2008 at 6:46 pm
Here is Leo Donofrio’s research on President Arthur et all’s eligibility concerning the Presidency.
http://naturalborncitizen.wordpress.com/
Donofrio says it will be ready later tonight December 4, or maybe December 5, as I understand it.
by Hugh on Dec 4, 2008 at 6:58 pm
In Reply to Hugh:
This will be interesting. As said before, I think the fact that the parents’ immigration and Arthur’s birth almost coincided could mean that the parents weren’t yet naturalized. But I’m sure Donofrio will have a lot more to tell.
by Joss on Dec 4, 2008 at 8:44 pm
Like I said over at Washington Times, Madison’s explanation
of the constitutional term “natural born citizen” must be the correct definition. I say this because it is the only definition that would accomplish the sought goal of requiring the President to be natural born: attachment to this country. Any other definition just returns us back to ANYONE can be president if they were lucky to been born on one inch of claimed US territory. If this was correct then mind as well allow citizens of the world to occupy the WH!!!!!
by Desperado on Dec 5, 2008 at 2:11 am
In Reply to Mr. Paul:
Donofrio and Gary do have a difference on what they think is most critical, but there was no big blowup on last night’s–December 4th Joe Thunder show.
by Hugh on Dec 5, 2008 at 7:57 am
This is a great article. I have studied it in depth as well as confirmed the information contained herein. There is only one way in which “Natural-Born” can be defined, and that is “Being born to 2 US Citizens”. If all it takes to be considered “Natural-Born” is to be born on US Soil, then our Nation is no longer safe.
by Nobama on Dec 5, 2008 at 8:03 am
In Reply to Desperado:
My thoughts are beginning to turn in this direction as well, Desperado.
I’ve been attempting to develop, and simultaneously (but so far, only tentatively) advocate for an exception to this rule for individuals who are nominally dual citizens by virtue of circumstances of their birth but who never avail themselves of the benefits, advantages, or protection of their foreign citizenship as an adult.
IMHO, the admittedly broad definition for the term “natural born citizen” I’m proposing has the benefit of maximizing the available pool of talent from which to draw (hopefully) the best candidates possible for the office of POTUS, consistent with the clear desire expressed by the framers, signers, and ratifiers of the Constitution for presidents and presidential candidates who have the true accountability and demonstrable integrity that flows from undiluted fidelity to the country of their birth. Clearly, this specific outcome would benefit our country in the long term.
However, I am beginning to despair of the extreme lack of tolerance, bordering on mutinous hostility, expressed by many for constitutional rules that do not admit of easy conclusions for specific cases. For instance, in the present example, Americans seeking to determine whether they, or, say, their children, are or should eventually be constitutionally eligible to run for president simply do not have the time or patience to cogitate on the fine points of constitutional interpretation. In other words, it may be impossible to satisfy a majority of U.S. citizens with a SCOTUS-approved definition for “natural born citizen” that is not crystal clear, and backed up by rock solid analysis, even if a majority of citizens do not concur with the conclusion reached, and a fair-sized chunk of the populace (undoubtedly including thousands of rock-ribbed patriots), end up being labeled, for lack of a better term, unfit or unsuitable for the office of POTUS.
I am on the verge of concluding that a definition of “natural born citizen” that includes individuals who are born on U.S. soil to known parents are themselves native-born or naturalized U.S. citizens at the moment of birth of the child in question, but excludes all others, regardless of their particular extenuating circumstances is the only one that will fit this last bill. And although I am aware that many (if not most) modern citizens will find the notion at least somewhat antiquated, if not also downright chauvinistic, I would suggest that it would also be consistent with the original meaning of “natural born citizen” for SCOTUS to find that that the term also covers individuals whose mothers were not U.S. citizens at the time of birth. This would then increase the pool of eligible citizens at least somewhat without deviating from the original criteria of the framers. If we are to be honest, though, and however unfortunate and disappointing this result may be for Mr. Obama and the many millions who voted for him, I am having real trouble seeing where or how SCOTUS can (absent adopting my suggestions for an exception to the general rule) arrive at a formula that will enable us to justify recognizing a child born to a non-naturalized (i.e., alien) father as a constitutionally-qualified natural born citizen. Again, and to be clear, this would appear to be so, regardless of the citizenship status of the mother (U.S. citizen or not), and regardless of the place of birth of the child (on U.S. soil or not).
To have faith in modern polling practices, or to allow ourselves to be influenced f we spend any time at all sampling the wide array of current media options, popular sentiment appears to be running in favor of so-called egalitarian outcomes on questions like these. But if we are to be strictly honest with ourselves, the meaning of any given weighty-sounding word or phrase appearing in the Constitutional is not and never was supposed to bend or shift with the times. Like it or not, we all need to come to grips with the fact that the definition of “natural born citizen” was frozen in time at some point in our history, at least as far back as the moment the 14th amendment was adopted, and possibly as early as the day the original Constitution and ten-amendment Bill of Rights was finally ratified. And clearly at that time (unless I am gravely mistaken), the only individuals who could lay claim to constitutionally-valid ‘natural’ citizenship (i.e., citizenship that is undiluted, pure, facially unchallengeable, legally indisputable, etc.) were those who were born on U.S. soil, to a native-born or naturalized citizen father.
I would dearly love to have at my disposal a service that could go back in time to, say, the late 1860′s, or to the early 1790′s, to conduct polls of the general citizenry to see whether what I am saying now would have resonated with them. Of course, this is impossible. But I have to think SCOTUS has the resources (and at least for now, has the time), to explore primary and derivative sources to piece together some sense of where public sentiment was at that time on this specific topic. So I say–turn them loose, and let’s see what they come up with.
by Publius on Dec 5, 2008 at 8:10 am
In Reply to Mr. Paul: Hawaii did not claim the details were valid. They are precluded BY LAW from releasing any information other than they have the birth certificate. We don’t know what kind of certificate it is — one for a child born in Hawaii or one for a child born elsewhere and registered in Hawaii.
by tanarg on Dec 5, 2008 at 9:07 am
In Reply to Publius:
No need for both parents to be citizens under laws of nature, just the father. Under US naturalization law the children and their mother collectively became naturalized as a result of the father being naturalized.
Virginia made an exception for mothers to bestow citizenship on the child only in the event the father had died before birth.
by JimAZtec on Dec 5, 2008 at 12:39 pm
In Reply to Publius:
Thanks for explaining why Goldstein did not show Donofrio’s case as a petition but an application for stay. I am not so legally savy.
This seems to be splitting hairs!
As to conspiracies (mentioned in other posts) we are not trying primarily to find or prove conspiracy but we are trying to establish the true facts so we can know where we actually are as a nation, as you have so eloquently expressed in a prior post. When we know all the true facts then we will be able to assess whether or not there has been a conspiracy.
I do not consider Obama’s mother getting an Hawaiian COLB as conspiratorial.
All these lawsuits (Donofrio, Berg, Wrotnowski, etc.) are not asking the SCOTUS to help determine conspiracy, but determine the truth.
Thanks!
by Hugh on Dec 5, 2008 at 12:43 pm
In Reply to Nobama:
I completely agree with you.
Barack Obama received his title of ‘citizen of the United States’ under the 14th Amendment.
So did Arnold Schwarzenegger
So does an Anchor Baby
ALL of them can be Senators or Representatives.
NONE of them can be President.
They are all ‘citizens of the United States’ as defined by the 14th Amendment and, unless they were born at the time of the Constitution’s adoption, none of them can be President.
by Melissa on Dec 5, 2008 at 1:48 pm
Since when is it the case that “through laws of nature the child inherits the condition of their father.” P.A Madison: Are you living in America in the 21st century? Totally sexist. For one thing, it’s scientifically inaccurate – anyone heard of mitochondrial DNA? But moreover, it’s a standard that has not been actively applied to any other presidential candidate in our history. Or at the very least, this question has not been investigated so thoroughly until, dare I say it, we have a mixed-race president who has a rich history of internationalism… and yet, was born on American soil to an American mother according to his “certificate of live birth”.
More importantly, where were all of you strict constructionists during the past 8 years while GWB has been raping the constitution by destroying our right to privacy and our system of checks and balances?
by gnat on Dec 5, 2008 at 3:11 pm
In Reply to All:
Why do people water down the intent of the constitution? Very simple! To satisfy a certain sect of our society. The largest problem here is the rule of Law and the disregard people have for it. Everyone thinks they can just make it up as they go along and many have tried and Failed. The cities of America have spoken, rural America was ignored and now it is up to the Electorial college to decide our fate. yes people, you didnt decide it, not at all! You made a statement, but your vote no more counted than the man in the moon- Where you live is what counts towards the influnce and hopefully “faithless” electors wont change their minds.
Oh your mom wasn’t a citizen? Your dad wasnt a citizen? Bummer- You are naturalized and thanks to Jefferson it is very difficult to argue! But it can be ignored! Which is about to happen in the US supreme Court! Wouldn’t it be funny If they turned around and said he isnt a citizen! Just one more proof positive that it is easier to lie to the Masses than to One person. Who would believe that this is even a question? Well for one thing if he isnt a citizen it is Going to be hell for him to get a Security clearance for the defense secret service, which even the president has to comply with. People that dont have both parents as US citizen’s dont get High level Security clearance. I am appalled that I get drug over the coals every 4 years for my credit rating to renew my TS Clearance, but Obama will get access to the same info I do and half his family is all over the globe as African country citizens??? I am so confused- what part of being an American Did I miss. if this Pig flies- I say Arnold for President!!!! Well he’s married to an american- why not stretch it a little further. Does anyone know that Colin Powell is Jamaican- Yup Born and raised in Kingston Jamaica!
Oh thats right you dont care because Jefferson and his ideals are outdated.
Cant beat the law so you change it! When you change it then we loose just one more piece of America that made us what we are and for those to come it will never be the same! May God save us from this stupidity- Someone please wake me up from this nightmare…
by Mr James on Dec 5, 2008 at 4:36 pm
In Reply to gnat:
Isn’t Madison using the language and the arguments of the time of the framers? If you wish to be non-sexist and add the mother, it doesn’t negate the problem.
The issue hasn’t had to be aired, excepting perhaps the case regarding President Arthur. See: http://naturalborncitizen.wordpress.com/
You might dare to bring out the race card. The fact is though that the majority of the electorate voted for an African-American and nothing can negate that fact either. It just happens to be that he might not be eligible. An apple is an apple, no matter how much it seemed like an orange during a temporary blindness.
As for me, a life-time Democrat, I’ve been ranting away for the past 8 years about GWB. But simply because I’m happy he’s leaving does not mean I would be happy for him to be replaced by someone who would make a mockery out of what prevents us from anarchy. Without the Rule of Law and those diligently guarding it, that document has no more value than any piece of trash you see in the street.
by JoeE on Dec 5, 2008 at 4:52 pm
***** Wall Street Journal Update: Our readers are correct. The Supreme Court did not grant certiorari in the case. *****
http://blogs.wsj.com/law/2008/12/05/obama-citizenship-case-gets-high-courts-attention/
December 5, 2008, 4:18 pm
Obama Citizenship Case Gets High Court’s Attention
Posted by Dionne Searcey
Is Barack Obama legally qualified to serve as president? A group of plaintiffs, who filed more than a dozen lawsuits challenging Obama’s citizenship at birth, say “no.” The U.S. Supreme Court is scheduled to meet today to decide whether to hear a case that could determine the outcome of whether Mr. Obama will ever become president.
According to this story in The Washington Times, Justice Clarence Thomas picked up the petition to hear a lawsuit filed by New Jersey attorney Leo Donofrio after it was denied by Justice David H. Souter. Justice Thomas referred it to the full court, which decided to distribute the case for the judges’ conference.
Many of the lawsuits concerning Obama’s citizenship contend he was born on foreign soil. We discussed here how one New Yorker took out full-page ads in Obama’s hometown newspaper, the Chicago Tribune, earlier this week to raise questions about whether Obama’s birth certificate is a fake.
But Donofrio’s case takes a different tack. He concedes that Obama was born in Hawaii, as Obama claims. But Donofrio contends Obama is not a “natural born citizen,” as required by Article II, Section I of the U.S. Constitution, according to the story, because he was not exclusively a U.S. citizen at the time of his birth. Obama’s father was a citizen of Kenya, formerly British East Africa, so Obama was a British citizen as well.
He explains his legal theory on the Citizen Wells Web site: “My law suit challenges his status as a “Ëœnatural born citizen’ based upon the fact that his Father was a British citizen/subject. Mr. Obama admits, at his own web site, that he was a British citizen/subject at birth. He was also a U.S. citizen “Ëœat birth.’ He does not have dual nationality now, but the Constitution is concerned with the candidate’s status “Ëœat birth,’ hence the word “Ëœborn’ in the requirement.
Some legal analysts say the suits have little chance of success because the Supreme Court rarely grants the kind of court orders or stays sought by Donofrio, according to The Washington Times story. At least four of the court’s nine judges must approve before the case is heard.
***** Update: Our readers are correct. The Supreme Court did not grant certiorari in the case. *****
by Mr Paul on Dec 5, 2008 at 6:21 pm
In Reply to Mr Paul: No surprise here. Only way to get this before the SCOTUS is through someone with standing, like a Secty. of State who refuses to certify on the grounds he isn’t qualified.
by JimAZtec on Dec 5, 2008 at 6:35 pm
In Reply to Mr Paul:
We only know that two cases were granted. We don’t know how many were dismissed. It’s probably dismissed but that’s not conclusive. No reason to jump the gun. Wait until Monday. The announcements are usually at 10 am I believe.
by JoeE on Dec 5, 2008 at 6:36 pm
In Reply to JoeE:
Joe, I genuinely appreciate your objectivity and honesty. Your declaration to the Democratic party, and yet your tenacious clinging to the Constitution, is both refreshing and highly sought after.
I am an Independent who typically leans Republican. I do, however, have the obligation to pursue the truth which ever way it leads. Again, in these days of partisan and thoughtless allegiance, your objectivity is refreshing.
If I wore a hat I’d take it off to you. For now, however, we’ll see what the
Take care,
Nelson Roth
Dayton, TN
by Nelson Roth on Dec 5, 2008 at 7:06 pm
In Reply to Nelson Roth:
Thank you very much for your kind remarks. I not only appreciate them, I concur with your sentiments expressed by them. I suspect we would take our hats off to each other!
Kindest regards
by JoeE on Dec 5, 2008 at 7:44 pm
FAQ on Obama’s Birth
http://sites.google.com/site/obamabirth
Visit for a heads-up on the issues.
by faq on Dec 5, 2008 at 11:51 pm
An update of my understanding after much research:
All I need to do was a little research on the internet to figure out that the type of citizenship required for the President is more restrictive than any other type of citizenship in order to make sure he does not have foreign allegiances or is subject to foreign intrigue. Senators and Representatives have a citizenship requirement that is a compromise between exclusion of naturalized citizens and a “hasty admission of them”Â, so Senators and Representatives must have been citizens for a certain number of years before they qualify.
There is no compromise for the President or Vice-President; they both must have become citizens at their birth which certainly eliminates naturalized citizens. Is it not true that each and every naturalized citizen gets his citizenship by operation of a Statute passed by Congress, and cannot get his citizenship otherwise. If he got his citizenship otherwise he would not be naturalized but a citizen from birth. But birth where and to whom?
We know that the 14th amendment granting citizenship was not in effect until after the Civil War, and has two requirements. First, one must be born in the US. Secondly, one must be born subject to the jurisdiction of the US. These are separate requirements, and not redundant.
Born in the US seems to be a simple requirement.
“Born subject to the jurisdiction” of the US is more complex. Here is what the Framers of the 14th amendment said it meant:
Senator Trumbull, the co-author, additionally presents a problem for the court majority by declaring: “The provision is, that “Ëœall persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ What do we mean by “Ëœcomplete jurisdiction thereof?’ Not owing allegiance to anybody else. That is what it means.” Sen. Howard followed that up by stating that: “The word “Ëœjurisdiction,’ as here employed, ought to be construed so as to imply a full and complete jurisdiction on the part of the United States, whether exercised by Congress, by the executive, or by the judicial department; that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.”Â
And,
Well the first major hurdle Senator Howard presented to the court majority in this case is that he specifically declared the clause to be “virtue of natural law and national law” which only recognized citizenship by birth to those who were not subject to some other foreign power. The Senator also stated when he introduced the amendment: “The clause [the citizenship clause section 1] specifically excludes all persons born in the United States who are foreigners, aliens, and persons who belong to the families of ambassadors or foreign ministers accredited to the Government of the United States, but will include every other class of persons.”Â
And,
The writer, John A. Bingham, of the 14th amendment’s first section, considered the proposed national law on citizenship as “simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen..
It seems clear from these quotes by the principal framers of the 14th amendment that if one is born with foreign citizenship, he does not qualify for citizenship under the 14th amendment.
So if you are born outside the US you do not get citizenship from the 14th amendment, and if you are born with foreign citizenship you do not get citizenship from the 14th amendment. You are not a natural citizen if you do not qualify for citizenship under the 14th amendment.
So we could stop here and see that McCain did not get citizenship from the 14th amendment because he was born in Panama. We could stop here and see that Obama did not get citizenship from the 14th amendment because he was born with foreign citizenship (not fully and completely under the jurisdiction of the US).
Natural citizenship is a result of both being born in the US and being born without any foreign citizenship.
The highest test of allegiance is what was intended for the President and Vice-President; higher than being a citizen for a minimum number of years; a citizen from birth, born with no allegiances to a foreign power. So natural born really combines two tests, place of birth and parentage at birth, and requires purity of the President and Vice-President.
Quotes are derived from this article, which I recommend everyone interested in this issue read:
http://www.therant.us/guest/gioia/09222007.htm
by Sid Davis on Dec 6, 2008 at 1:09 am
Based on the rationale for the “natural born citizen” provision-”â€ensuring against foreign allegiance, etc.-”â€here’s what would have made sense to the framers at the time:
(1) Natural born citizen = a citizen literally “born American” (as opposed to merely born IN America). This means citizenship determined by descent-”â€i.e., by operation of nature (or “natural law”Â). At that time, this most likely meant descent from the father. I don’t think we have had a president whose parents were not both Americans at the time of his birth. Obama’s named father clearly was not an American.
(2) Citizenship at birth = those who, regardless of the citizenship of their parents, are Americans at birth because a law/the Sovereign deems them so-”â€i.e., by operation of law. When citizenship is attained by birth (by nature), no law, at all, was required to make them citizens. When citizenship is attained at birth, a law was required. The sovereign somehow had to recognize those children of aliens as citizens. These Americans AT birth would not have the same status as Americans BY birth, in this one respect: eligibility to be President. (But their next generation could be eligible by birth.)
(3) Naturalized citizens = those who were not Americans BY birth or AT birth, but obtain citizenship later by fulfilling a legal requirement and doing a substantive legal act to obtain citizenship. This would be citizenship by operation of law and volition.
In short:
Ҡa natural born citizen would be one who, by operation of nature (descent) was born American, regardless of birthplace;
“†a citizen would be one who, by operation of positive law, was deemed an American at birth, regardless of parents’ citizenship; and
Ҡa naturalized citizen was one who, by operation of positive law and volition, becomes an American some time subsequent to birth.
Since much of the caselaw on citizenship addresses only citizenship, and therefore could be limited to citizenship by operation of positive law (i.e., AT birth as opposed to BY birth), much of that precedent may not be helpful in determining eligibility to serve as President.
OTOH, if natural born citizenship status is as simple as having two parents who were Americans by the time of one’s birth, or”â€depending on the law at the time-”â€a father who was American by the time of one’s birth, that’s a straightforward standard that would greatly limit the possible factual permutations that could be presented.
by fightinJAG on Dec 6, 2008 at 7:11 am
In Reply to Sid Davis: There was a case about 3 years ago that involved a woman who was going to be deported. She was married to an American in Kansas. She was also pregnant. She appealed her deportation in federal court but lost and is now living in Mexico. However, Judge Wright told the Justice Department that her unborn child was, in his opinion, a citizen.
This was an extraordinary statement by Wright and it appears to me to be contradictory to the Constitutution that you must be “born”.
I just thought I would throw this out for consideration.
by Gina on Dec 6, 2008 at 7:27 am
In Reply to Joss: You asked about the effect of being born to a British subject.
In browsing through a book called Unnaturally French: Foreign Citizens in the Old Regime and After, which discusses French citizenship in the late 18th century (when our Constitution was signed), there is a notion that the sovereign recognized those being born in the kingdom (of France) as citizens of France.
However, on page 130, the book discusses that at this time (during which the framers would have been aware of the law) the English also recognized children born in their empire as British subjects and, moreover, “in England, allegiance was ‘natural’ and ‘perpetual,’ received at birth and impossible to shed . . ..”
How the French resolved this if a child of French citizens were born in England, or a child of a French and an English parent were born in France, I don’t know.
On this side of the Atlantic, the framers certainly would not have approved of an English man’s son, who received English citizenship at birth (with its “natural,” “perpetual,” and “impossible to shed” allegiance to the Crown), becoming the President and Commander in Chief of the U.S.
That said, whether the language they used in the Constitution left room for future generations to determine the effect of some or all dual citizenships on the special and limited point of eligibility to serve as President and Commander in Chief is unknown or at least not highlighted in SCOTUS jurisprudence.
by fightinJAG on Dec 6, 2008 at 7:30 am
In Reply to Publius:
If “natural born citizen” status is, in fact (i.e., as settled by the SCOTUS), determined by the citizenship of one’s father, it is clear that Obama’s father (assuming he continues to claim his father was Barack Obama I) was not an American citizen. Case closed.
If “natural born citizen” status could also be attained by descent from his mother’s citizenship, it is (so far) clear that his mother was an American. Case closed.
This is one of the beauties of recognizing the simplicity of the “natural born” concept as being determined by descent alone. Sure, there could still be factual issues as to one’s parents’ citizenships, but the inquiry would be relatively straightforward and the controversy easy to prove or disprove.
by fightinJAG on Dec 6, 2008 at 7:39 am
In Reply to Mr. Paul:
If, in fact, “natural born citizen” status is attained by birth to an American father, both Buchanan and Arthur were “natural born citizens” because their fathers (so far as known now) were (naturalized) Americans at the time their future-president sons were born.
In effect, this sensible and historically accurate reading of “natural born citizen” requires a president to be at least a second-generation American.
by fightinJAG on Dec 6, 2008 at 9:12 am
In Reply to Sid Davis:
It appears to me that the practical effect the framers may have intended was to limit the presidency to those who were at least second-generation Americans.
Basing eligibility on attaining citizenship by birth (i.e., by operation of “nature” alone), as opposed to at birth based on birthplace (i.e., by operation of law / the sovereign’s recognition of the children of aliens as citizens), ensured so far as possible that the individual was at least “once removed” from ties to the old country.
And, of course, there is practical wisdom in that. As we see even today, hundreds of years later, the second-generation Americans usually do not have anywhere near the ties to the old country that first-generation Americans often do.
Therefore, to say natural born status is determined by both descent and birthplace, seems to me to wrongly conflate citizenship attained by nature (descent) with citizenship attained by law (the legal import of one’s birthplace) .
Place of birth determines citizenship only because positive law says it does. The sovereign, whether a king or a state, could have made a different decision. This demonstrates this is citizenship attained by operation of law.
Once “law,” yes, it will be enforced and elaborated upon by the courts and even come to be viewed as a “right.” That, however, does not change the fact that, in the first instance, the sovereign had the authority to deny citizenship to the children of aliens born in its jurisdiction.
Moreover, there is only one aspect in which the effect of natural born citizenship (by descent) status diverges from citizenship attained at birth, but without descent (by law): that is the very unusual, specific and important requirement regarding eligibility to serve as President and Commander in Chief.
IOW, there are no differences between citizenship attained by descent at birth and citizenship attained by law at birth EXCEPT (assuming the correctness of our working definition) that the former individual is eligible to be president and the latter is not.
Again, this construction would make perfect sense as it would limit the presidency to those who are at least second-generation Americans. That doesn’t seem too much ask, either from the framers’ point of view or ours today. Which, of course, matters not a whit anyway. No matter the burden the standard may impose, generally or in a particular case, the Constitution still must be vouchsafed.
by fightinJAG on Dec 6, 2008 at 9:39 am
In Reply to Joss:
You said:
Hear, hear! This country has shown historical greatness by electing the first black president, overcoming the burden of slavery and segregation, and if the SCOTUS rules Obama eligible for sound reasons, that’s absolutely fine. And if for other sound reasons he’s ruled ineligible, the country will have shown the same amount of greatness in other ways, by preserving and honoring the Constitution, and not falling for a mere “political reality”Â. It would be a bittersweet victory, but I’d rather have a passing tragedy of millions than once again “cabal, intrigue, and corruption” (Alexander Hamilton). So I hope that the SCOTUS will accept the case.
///end quote ///
Amen to every word you said, except that it “would be a bittersweet victory.” From my point of view, regardless of outcome, the fact that our system worked to address this issue would be very great indeed. And, if by some chance, Obama were found ineligible, I have every confidence that our procedures to transfer power peacefully would work and we would get through.
That said, it’s not at all clear that any replacement for Obama, should he be found ineligible, would constitute a “victory” for the nation of any sort. Still, that is irrelevant to the task of vouchsafeing the constitutional requirements for the presidency, for now and the future.
by fightinJAG on Dec 6, 2008 at 10:01 am
Please read in this article what the Framers of the 14th amendment said about “subject to the jurisdiction” meant.
http://www.therant.us/guest/gioia/09222007.htm
The language “subject to the jurisdiction” means “not subject to the jurisdiction of a foreign power”. Obama was born subject to foreign jurisdiction. The Framers said this was completely “subject to the jurisdiction” of the US, so being born with dual citizenship makes you not completely “subject to the jurisdiction thereof” thus you fail the “AND subject to the jurisdiction thereof” clause.
Obama, at his birth was not subject to the jurisdiction of the US so he did not meet both test (born or naturalized AND subject to the jurisdiction thereof). But he was born a citizen. This citizenship was as a result of Congressional Statutes effective at the time of his birth which takes away the possibility of having natural citizenship. He did not get his citizenship by operation of the 14th amendment.
McCain was not born in the US or naturalized in the US. I don’t know the laws of Panama, but if they said someone born in Panama to two US citizens is also a citizen of Panama, then he failed the “subject to the jurisdiction of the US” test. If Panama did not claim him he passed the “subject to the jurisdiction of the US” test. So being born out of the US prevented him from having natural citizenship. He also got his citizenship from operation of Congressional statutes in effect at the time of his birth.
Neither McCain nor Obama needed to be naturalized because they were born with US citizenship, not gotten from the 14th amendment, but from Congressional Statutes. If you need to be naturalized, it is because you were not born with citizenship, so neither McCain nor Obama needed to be naturalized.
It is clear you can get citizenship from operation of Congressional Statutes, or being naturalized, or by operation of the 14th amendment applied at birth.
If your citizenship came from Congressional Statutes then it was not natural citizenship. If your citizenship came from naturalization it is because you did not have it a birth. So the “natural” part of “natural born” is not a characteristic of someone getting his citizenship from Congressional Statutes, and the “born” part of “natural born” is not a characteristic of someone getting his citizenship from naturalization.
So at a minimum to be a “natural born” citizen, you would need to have gotten your citizen by operation of the 14th amendment, meeting the “born in the US” part and meeting the “subject to the jurisdiction thereof” part.
If the laws of Great Britain at the time of Obama’s birth in 1961 had not made him subject to their jurisdiction, then Obama would have met the “subject to the jurisdiction thereof” test of the 14th amendment and would have gotten citizenship from the 14th amendment (I think). However would that have made him a “natural born citizen”?
This is where this article by P.A. Madison is valuable. One would then need to transport himself back in time before the 14th amendment to see what purpose the Framers of Article II, Section 1 had. They wanted to keep the President from having any allegiances to foreign powers. In those times, they viewed the citizenship of one’s father as controlling, so I suspect that there is an even more stringent test than the 14th amendment to be applied to Article II, Section 1 and that test is being born in the US to citizen parents, or at least to a citizen father.
by Sid Davis on Dec 6, 2008 at 11:34 am
This is a very well thought out argument except for a couple of points. The argument says you must be a citizen by nature and not by law, hence, none of the founders were eligible for the presidency. One can say that laws were passed specifically giving exception to those living in the United States at it’s inception. But that is citizenship by law, not nature and it quite naturally contradicts the authors whole argument.
Secondly, there is no such thing as a citizen by nature. Citizenship is not a biological function whereas birth is a natural biological function. It takes a law to say you are a citizen of the country of your biological father. If it were natural, why not the mother? It is simply obfuscation to say that citizenship has anything to do with nature. Citizenship is purely a structure created by law.
by HG on Dec 6, 2008 at 11:58 am
This post has turned out to be an excellent backgrounder for preparing my amicus. You are thoroughly good, P. Madison.
by J.D. on Dec 6, 2008 at 12:44 pm
Too much confusions and obsfucations of the Constitution.
When I remove the “blatant political leanings” of some of the posts here, beneath their various logical-theories lie unforunded legal-precedents or logic.
SCOTUS is the only recognized and supreme custodian of the constitution and its word is FINAL.
The mere fact the SCOTUS denied to HEAR/REVIEW Leo’s anc Cort’s cases is enough to assume they had no constiutional impact nor legal standing.
Sad, but true.
by Mr. Paul on Dec 6, 2008 at 5:22 pm
In Reply to Mr. Paul:
When did you hear this “fact” that “the SCOTUS denied to HEAR/REVIEW Leo’s anc Cort’s cases”?
“blatant political leanings” of some of the posts here????
by Anonymous on Dec 6, 2008 at 5:31 pm
In Reply to Mr James: Maybe God is saving us from stupidity. If we truely trust that God is really in control and trust in God as our source, we will come out ok. A house divided does not work very well. God Loves not matter what your citizenship. We must pray for who ever is holding the office of the President. If we don’t then we have failed. Like Israel we wanted to be able to choose. The majority has spoken so lets not be discouraged. I ask God to touch and guide the heart of our next President. May God bless you.
by Marion on Dec 6, 2008 at 9:14 pm
In Reply to Marion:
Please look at Deuteronomy 17:14-20
In Deuteronomy 17:15 the LORD says through Moses: “you shall surely set a king over you whom the LORD chooses, one from among your own countrymen you shall set as king over yourselves; you may not put a foreigner over yourselves who is not your countryman.” NAS
So, the LORD was very specific as to leadership requirements concerning Israel. He said this because of the problem of divided loyalties to protect Israel from foreign encroachment. A foreigner would not understand God’s laws, commandments, and statutes.
In similar fashion the Framers of the Constitution gave us three requirements to hold the Office of President, among them the natural born citizen clause. A Vice President must meet those same requirements.
by Hugh on Dec 6, 2008 at 10:00 pm
In Reply to Marion:
No, Marion. If trust in your god doesn’t forestall an illegitimate ruler, it’s your trust that’s been wrong, not your god. Since you mention “Israel”, you seem to be an Old-Testamentarian addict, and I would like to direct you to the pugnator of Exodus 15:3. There”â€and in many other places as well”â€the Jewish god has been a combatant, and I see no reason, why disciples like you should refrain from taking up arms against “tyrants”, i.e. illegitimate rulers.
by Joss on Dec 6, 2008 at 10:03 pm
In Reply to Hugh:
You know, that’s why I adore the Romans. They had a long and powerful Republic. And later they had Celts, Germans, Goths, Thracians, Africans and Arabs as their emperors. And if necessary, they burned their old books of law and simply wrote new ones. That’s why they were so successful and influential, for over 1000 years. They saw the necessity to renew their society. They surely kept all the old stuff, but constantly redefined it. And they also acquired new ideas constantly. That’s the main reason for their success. And that’s also why Israel lost against them”¦ that’s why every nationalist culture keen on preserving its ancient past at any cost will eventually fail.
Barack Obama’s election is inevitable, because the US seems to still have an urge to survive. Still. I totally agree that his Presidency would be unconstitutional, but in terms of global power and influence”â€and (as a consequence) of domestic well-being”â€breaking the Constitution and thereby redefining and modernizing it with a fait accompli, supported by the SCOTUS, will be the Union’s last best hope.
This has been my basic argument for years: Do the United States want to be an empire? Or only a large nation that will eventually disappear like the ancient Greeks? Maybe the English language will survive, like the Greek language survived as the Eastern lingua franca of the Roman Empire. But today, the Greek language is only spoken in Greece, while Latin, the language of the common people, has flourished around the world, as Spanish, Italian, and as an integral part of all modern Western languages.
Obama is a pivotal point in history. He CAN BE a new founding father of a new global US era. So we see before us two roads, one leading into this new era, the other into inevitable oblivion, inhabited by an anachronistic nation reduced to nothing but a faint memory of past glory.
by Joss on Dec 6, 2008 at 10:44 pm
In Reply to Joss:
To boil this down to one question for the future of the US:
HELLAS or ROMA?
by Joss on Dec 6, 2008 at 10:51 pm
In Reply to Joss:
Are you aware that one of the causes of the War of 1812 was the British not honoring American citizenship certificates, thereby seizing 6,000 American citizens for their navy? The Americans took it as challenge to natural born citizens, it appears! We fought because we had to, not as the violent aggressor.
This war and its causes gives us great insight into the collective mind of the Framers as to what they would allow and disallow after obtaining freedom as natural born citizens. They were willing to fight! No doubt Americans counted it an honor to be a natural born citizen.
So, we have the Framers protecting us from a foreign born president (no allegiances to foreign soil). Also, foreigners could not lay illegitimate claim to our President or any American citizen without retaliation. It was not a matter of being cruel or mean, but of protecting and defending our boundaries and property rights.
Lkewise the LORD, in Old Testament and New, will fight evil!
by Hugh on Dec 6, 2008 at 11:00 pm
No idea how the framers viewed natural born citizen, but the assembly of Maryland felt a natural born subject was children born to fathers whose allegiance belonged to the state of Maryland.
by Justa on Dec 7, 2008 at 1:43 am
In Reply to Sid Davis:
McCain did not fail the “subject to the jurisdiction of the US” mantra. His father was a subject of the US and the US had full established jurisdiction over him no matter where (any US consul would intervene on his behalf).
McCain is a natural born citizen because the US had full established jurisdiction over his father and mother. McCain needs no law defining who he is, he is defined by his father, a US citizen.
by Craig on Dec 7, 2008 at 2:39 am
I have enjoyed your posts very much up to this point, but your argument here seems questionable to me. It”s either Obama or Oblivion, are you saying? It’s possibly neither, with or without Obama. We could be seen as just an ex-British colony that got too big for its dungarees in the measly 200 years we’ve been around.
By the way, English is not ours to export except second hand, as it obviously came from the English. And the Roman Empire divided and fell because it also got too big and culturally too diluted. So where does ‘big’ end and an ‘empire’ begin. Also, the reason that Latin (and Greek too by the way) spread the way it did, is because of its culturation via the Church of Rome. So where Rome went and the Church didn’t, you will not find Latin’s influence, or not greatly so.
But how you tie any of this to Obama escapes me. It’s as if you have simply bought the ‘change’ thing, and you’re intellectualizing it to death. Hope is suppose to be a virtue, but it can also be a real bitch.
Who knows, it would be great if you’re right. But even though great men have been known to be deceitful, it isn’t the sum total of what they are about. And truly we do not know anything else about this possible usurper. I don’t like giving second hand comments, but a friend who is a Psychologist, says he’s a classic schizoid. The point is, it is just as likely as anything else at this point.
I’m not trying to make some substantive comparison here, but it’s worth remembering that Churchill in the mid-1930s thought Hitler was the greatest thing since the invention of crumpets. And he had equal admiration for Stalin at one point. We live in much more deceitful times, and we are just as easily beguiled.
by JoeE on Dec 7, 2008 at 3:34 am
In Reply to Joss:
My post below was suppose to be a reply to you
by JoeE on Dec 7, 2008 at 3:37 am
In Reply to JoeE: We have to hope for the best. There are about 30 more cases on the way. Many more kept quite because of death threats. I would not be suprised to learn all together 80- 100 cases filed or in the process. I can only speak for me, but there will be some praying here.
by KC on Dec 7, 2008 at 4:40 am
Bottom line……….If you voted for Obama because he is black….you are a racicst…..if you didn`t vote for Obama because he is black….you are a racicst…….judge by character not color…..If his father who was not only a citizen of another country and pledged his allegence to that other country…. is the reason for the refusal of the birth certificate submission???(NOT the certificate of live birth!)Did his mother also renounce her citizenship being at the time she was not a big fan of the Constitution????We as a country owe it to the people who have fought and died to protect the Constitution to confirm this fact. Are we in such a hurry to “make history” instead of thinking this through? Isn`t that how the banking systems got our hard earned $$$ without restrictions and the auto industy wants the same? Some one stop the insanity!!!!! God help us and God Bless the USA!!!
by B.Ross on Dec 7, 2008 at 5:47 am
I’ve discussed this article a lot in other forums, and continually come up against several entrenched, but purely popular notions as to the meaning of “natural born.”
Here’s a way to state the fundamental argument that may be less confusing to people conflating “natural born” status with “citizenship at birth” status:
There are two types of citizenship status:
(1) Natural born citizenship. This status is attained upon birth by operation of nature (that is, by descent). No law has ever been required to deem the child of two Americans an American citizen, regardless of place of birth.
(That said, it is still arguably an open question whether descent was required from one’s father, or from one’s father or mother, or from both parents.)
(2) Naturalized citizenship. There are two types (subsets) of naturalized citizenship:
(a) Automatic naturalization at birth. This status is attained upon birth by operation of law. The children of aliens born within a country / kingdom were deemed citizens of that place solely because the sovereign chose to accord them citizenship. Sovereigns could have made a different choice, therefore proving that this status comes only through law, not through nature.
(b) Voluntary naturalization some time after birth. This status is attained later in life by operation of law and volition. As such, it also is not a status that occurs by nature.
While “natural” citizenship status and “automatic naturalization” status are both attained upon birth, they are not the same and should not be confused.
That said, there is only one difference between the “natural” status and the “automatic naturalization” status: that is, that only the former makes one eligible to serve as President.
The framers’ goal was to limit the presidency, and particularly the office of Commander in Chief, essentially to those who were at least second-generation Americans. A child who is automatically naturalized at birth—i.e., who is an American because American law says he is, not because his parents were Americans—is a first-generation American. That was too close to the old country for the framers.
by fightinJAG on Dec 7, 2008 at 7:46 am
In Reply to Mr. Paul:
Have you also read the reply?
http://hnn.us/readcomment.php?id=129849&bheaders=1#129849
by Joss on Dec 7, 2008 at 12:14 pm
In Reply to TJ:
Orphans and citizenship by adoption is interesting since BO was adopted and achieved Indonesian citizenship.
How does that compare with “jurisdiction” questions, especially since he traveled to Pakistan under an Indonesian passport as an adult while Americans were barred from traveling there?
by Dennis222 on Dec 7, 2008 at 7:37 pm
In Reply to Mr Paul:
For someone who supposedly knows the law and writes regularly on the Supreme Court, it’s amazing that he makes the ludicrous mistake in para 3:2 in the article you refer to. The rest is a generalization of the practice of the court. This isn’t a “good” summary of the cases at all!
How about waiting approximately 8 hours?
by JoeE on Dec 8, 2008 at 1:05 am
This is my first time posting here and it appears some of the Moonbats (also known as “libtards”) are hard at work trying to derail a brilliant and intellectually challenging thread–intellectually challenging FOR THEM, I
mean!–with their radical “noise”.
Publius gave a wonderful explanation of the differences between “natural born” and “naturalized”. Joss also cites an excellent piece by Hank Rand.
Some of the posts I’ve read on other blogs are from former Obama supporters who have “seen the light” thru their postings and discussions at varieous sites. Of course, these posters have to be taken at their word that they are in fact upholders of the Constitution no matter how such support affects the outcome of the Election next week.
No one except perhaps the Gov. of Hawaii and Obama know the contents of the vault document supposedly there. The election of the most powerful man in the world cannot, in my opinion, rest on “the possibility of that document being released”. And that is another reason why the Donofrio Case is so important. Not only did it come up thru the state court system–it DEFINES Obama’s ineligibility POINT BLANK without all the Moonbat obfuscation about the b/c.
Even if Donofrio wins his case at SCOTUS, I think a lot of American citizens would like to see Obama’s Kenyan grandmother deposed as well as the Ambassador to the U.S. from Kenya and any others (a half-sister?) who know for a fact that Obama was born in Kenya. With Donofrio’s win and the election overturned, a lot of Americans are going to want Obama tried for treason or at the very least, for fraud. There won’t be a rock under which he can crawl under to hide here in the U.S. should he be declared “a fraud and a charlatan” by SCOTUS. He will be forced to leave the country…perhaps back to his native Kenya?
by levotb on Dec 8, 2008 at 2:10 am
One must remember That John McCain is a natural born citizen simply because:
a) His mother and father were both Natural born citizens
the US
b) His father was a commissioned officer in the US Navy
sworn to protect the constitution from all enemies
foreign and domestic and was absolutely subject to the
jurisdiction there of.
c) further, his “Natural Father’s presence outside the US
was pursuant a direct order from the US Commander in
Chief
d) The Naval hospital in which he was born flew a
Quartered Flag (gold braid surrounding all four sides)
which in fact made it Sovereign Property of the US.
by silencedoogood on Dec 8, 2008 at 4:02 am
One must remember That John McCain is a natural born citizen simply because:
a) His mother and father were both Natural born citizens
the US
b) His father was a commissioned officer in the US Navy
sworn to protect the constitution from all enemies
foreign and domestic and was absolutely subject to the
jurisdiction there of.
c) further, his “Natural Father’s presence outside the US
was pursuant a direct order from the US Commander in
Chief
d) The Naval hospital in which he was born flew a
Quartered Flag (gold braid surrounding all four sides)
which in fact made it Sovereign Property of the US.
by silencedoogood on Dec 8, 2008 at 4:04 am
For all of you in Rio Linda Please spend at least 30 minutes browsing http://www.constitution.org/ it should help alleviate some of the tantrums over the Founding Fathers Intent by getting your information straight from the horse’s mouth
by Silence Doogood on Dec 8, 2008 at 4:31 am
On every question of construction [of the Constitution] let us carry ourselves back to the time when the Constitution was adopted, recollect the spirit manifested in the debates, and instead of trying what meaning may be squeezed out of the text, or intended against it, conform to the probable one in which it was passed.
ҠThomas Jefferson (1743-1826), letter to Judge William Johnson, (from Monticello, June 12, 1823)
If, in the opinion of the people, the distribution or modification of the constitutional powers be in any particular wrong, let it be corrected by an amendment in the way which the Constitution designates. But let there be no change by usurpation; for though this, in one instance, may be the instrument of good, it is the customary weapon by which free governments are destroyed.
ҠGeorge Washington, Farewell Address, 1796
Do not separate text from historical background. If you do, you will have perverted and subverted the Constitution, which can only end in a distorted, bastardized form of illegitimate government.
ҠJames Madison
by Silence Doogood on Dec 8, 2008 at 5:13 am
In Reply to fightinJAG and Sid Davis:
I agree that there is value in considering constitutionally-valid natural born citizen status to be somewhat synonymous with second generation American status.
I would also argue, however, that such a proposition does not necessarily answer the question of whether the meaning of the term “natural born citizen” as used in the original U.S. Constitution, or as considered in the wake of the adoption of the 14th amendment, ever included anyone who wasn’t born on U.S. soil. I would argue the term “natural born citizen” does not now, and never did, include any such person.
The question, it seems to me, boils down to this: who among U.S. citizens existing today can lay claim to that species of U.S. citizenship since birth, the validity of which cannot denied by operation of **any** positive law the United States (including any provisions of the Constitution, as-written or as-amended)? It is only by the use this question as a starting point, followed by a process of logical deduction, that we can determine, once and for all, that subset of current U.S. citizens, each of the constituents of which possesses constitutionally-valid natural born citizen status.
If I am correct in thinking that the U.S. has always had the power to deny citizenship to individuals born other than on U.S. soil, then the citizenship ‘fate’ of anyone born outside of the fifty United States (and, for the sake of argument at least, also outside the non-state territories falling under the control of the U.S. government) would depend on the state of U.S. law at the time of their birth. Currently (that is, as currently amended), and according to my understanding of it (if I am wrong, I would appreciate being corrected on this point), the United States Constitution only specifically guarantees citizenship to individuals who are or were born within the United States, **and** who at the time of their birth, are or were subject to the jurisdiction of the United States.
Consider a first scenario. The U.S. Constitution remains exactly as it is today, and is unamended for all times relevant to this scenario. A U.S. statute is passed tomorrow that categorically denies citizenship to anyone who does not meet the criteria of the 14th amendment. Person A is born in 2010 in a foreign country (say, Panama) to two parents, each of whom has been a U.S. citizen since birth. Person A runs for U.S. president in 2048 and is denied access to the ballot in say, New Jersey. Person A, being a non-citizen from the get-go according to U.S. statutory law, would presumably have no legal recourse in terms of an applicable provision of the U.S. Constitution to force a different result.
Consider a second scenario separate from the first scenario. In this scenario, the U.S. Constitution is amended next year to erase all of the arguably applicable provisions of the 14th amendment. The next day, a U.S. statute is passed that denies U.S. citizenship to anyone born on U.S. soil whose father is not also U.S. citizen at the time of the birth. Person B is born in 2010 in a U.S. state (say, Hawaii) to a married couple including a mother who has been a U.S. citizen since birth and a non-naturalized alien father. Person B runs for U.S. president in 2048 and is denied access to the ballot in say, New Jersey. Person B, being a non-citizen from the get-go according to U.S. statutory law, would presumably have no legal recourse in terms of an applicable provision of the U.S. Constitution to force a different result.
Finally, consider a third scenario that is separate from the first and second scenarios. According to this scenario, the U.S. Constitution is amended next year to erase all of the arguably applicable provisions of the 14th amendment, but otherwise remains the same as it appears today. The next day, a U.S. statute is passed that denies U.S. citizenship to anyone born on U.S. soil whose father is not a native-born U.S. citizen. Person C is born in 2010 in a U.S. state to a married couple including a mother who has been a U.S. citizen since birth and a father who was a foreign citizen at birth, but through a process of naturalization, became a U.S. citizen before the birth of person C. Person C runs for U.S. president in 2048 and is denied access to the ballot in say, New Jersey. IMHO, person C would not need to point to any particular provision of the U.S. Constitution or of U.S. statutory law to prove his or her citizenship. Rather, Person C would have recourse to natural law to force the Secretary of State of New Jersey to recognize him or her as a natural born U.S. citizen, fully eligible to run for the office of POTUS.
Please note that I am certainly not making any argument that the passage of the 14th amendment means that anyone who is born within the United States and subject to the jurisdication of the United States is necessarily a “natural born citizen”. I will leave it to others to make such an assertion and prove it in due course.
Rather, I am simply arguing that from the time of the ratification of the original U.S. constitution onward, it has only been some subset of those who were born on U.S. soil who have ever had constitutionally-valid natural born citizenship status.
by Publius on Dec 8, 2008 at 7:30 am
THE FRINGE’s (thats what this whole movement has become) have LOST BIG!!!
Supreme Court DISMISSEs the case (without opinion).
http://www.supremecourtus.gov/orders/courtorders/120808zor.pdf
What is NOt shocking to some of us is USA Supreme Court DENIES and DISMISSES the case.
Not even an opnion is given (signifying no merit, no standing and frivolous).
Ok!!! now lets hear the new SPINs and Counter-SPINs!!!
by Mr. Paul on Dec 8, 2008 at 8:16 am
In Reply to Mr Paul:
FYI: You predicted it, you got it.
Application for Emergency Stay denied in Donfrio v. Wells.
http://www.supremecourtus.gov/orders/courtorders/120808zor.pdf
Publius
by Publius on Dec 8, 2008 at 8:18 am
To pick up where I left off, since SCOTUS is (at least for the time being) uninterested in chiming in:
It might help to consider a fourth scenario, different from each of the first, second, and third I’ve mentioned.
According to this scenario, an amendment to the U.S. Constitution is adopted next year that: 1) erases all of the arguably applicable provisions of the 14th amendment, and 2) adds a new provision specifically preventing anyone who cannot show that his or her father was a native-born U.S. citizen at the time of his or her birth from ascending to the office of POTUS. Person C is born in 2010 in a U.S. state to a married couple including a mother who has been a U.S. citizen since birth and a foreign-born father who immigrated to the U.S. as an adult and became a U.S. citizen by a process of naturalization before the birth of person C. Person C runs for U.S. president in 2048 and is denied access to the ballot in say, New Jersey. Even though person C is clearly a natural born citizen, and would have no trouble demonstrating the same to a court of competent jurisdication, he or she would not be eligible for the office of POTUS due to the new constitutional provision.
The point is, we should not be attempting to go through an elaborate set of hoops to arrive at a definition of “natural born citizen” that either covers or does not cover any particular individual or category of individuals. Rather, we should recognize the immutable clarity of the term as used in the original Constitution and deal with the result this gives. If the result is generally acceptable to the country, so be it. If not, I would expect that many would begin advocating for the adoption of a corresponding amendment.
But to avoid answering any and all questions like these in the first place is certainly no way to run an airline. Neither should otherwise respectable legal minds be heard to argue that the Constitution is a living, breathing document that can legitimately be said to mean whatever a majority of Supreme Court justices wish it to mean at a given moment in time. IMHO, far from punting, the Supreme Court has taken a knee–and on the judicial equivalent of second or third down!
by Publius on Dec 8, 2008 at 9:22 am
In Reply to Dennis222:
Yes this is my point too. But it is about U.S. law and due process. You would have to consider how you wanted to treat orphans under a three-tiered citizenship system. As for Indonesia, the State Dept. clearly states that a U.S. citizen does not give up their citizenship just because a foreign state confers citizenship by marriage or birth upon them. Imagine if parents were the ones who decided arbitrarily what citizenship you held and changed it on a whim. You could effectively be left with no citizenship anywhere. That is chaos and parental tyranny.
As for providing a birth certificate. None of the certificate deniers have said affirmatively whether or not the document provided by the Obama campaign would be good enough to obtain a U.S. passport. (I am guessing it is because he already has one). If it is enough to prove non-naturalized citizenship, then the burden proof would be on a petitioner or prove this is some how false information or somehow an inadequate proof of citizenship. State officials say they have seen his birth certificate also before you argue that doesn’t affirm what he has presented as true. If the information presented and widely know was different from what the officials saw then they would be taking part in an act of fraud. So since they did not deny he was born anywhere BUT Hawaii we can assume that is what they meant. So if you say it is people saying something over in Kenya, just imagine someone’s word up against a certified state document. So basically the document provided is likely enough the prove non-naturalized citizenship in every other case so why would a court make the state do something extra special in this case. You as the petitioner would likely have to show that somehow that document provided by the state of Hawaii is inadequate to prove citizenship which you can’t really do if the U.S. State Dept. is accepting such proof. So you would then be forced to sue the State Dept. on the grounds that they accept inadequate proof of citizenship since it doesn’t say on the state certified document which hospital a person was born at or whatever….Now it is 2020 and Obama has his own library…oy.
by TJ on Dec 8, 2008 at 10:37 am
In Reply to Mr Paul:
I wouldn’t crow too loudly if I were you. Why didn’t they dismiss: Wrotnowksi v. Connecticut Secretary of State? This may be the dregs of hope, but it WAS on Scalia’s desk, it Was, according to Donofrio, better written, and it IS still alive.
by JoeE on Dec 8, 2008 at 11:50 am
In Reply to levotb: You seem to be convinced that Obama is not an American Citizen and in fact was born in Kenya. Even Mr. Donofrio’s concedes that Obama was born in Hawaii. His main objection is that Obama’s parents where not both Natutal Born Citizens. The consistution states that only one needs to be “Natural Born”. So if the facts are that Obama was born in Hawaii and his mother was Natural Born, then he is indeed a Natural Born Citizen. Those are facts and are documented. If you have facts to counter this argument then bring them forward. Mearly repeating what you hear with noting to validate it does not make your case. You must provide proof. The best way to answer this question is to present hard evidence. Without evidence there is no case to be made. It would be like a lawyer defending his client with nothing more then his own thoughts of what the truth is. I am sure that we all have larger problems in our own personal lives to deal with then to worry about Mr. Obamas citizenship. If something does surface then we always have impeachment to consider.
by mike on Dec 8, 2008 at 11:54 am
Ummmm – Wrotonowski’s case has been referred to the Court by Scalia, and there will be a conference on December 12th.
by JoeE on Dec 8, 2008 at 12:09 pm
As I read these blogs I have one question, what is it that you all want? It is clear that Obama is not your candidate and I am sure that you do not consider him your President. Is this simply a last ditch attempt to overturn the election? For the last two and a half years while Obama has been running for and finally elected President, no one has ever found any evidence to back your assumptions. If the evidence was there don’t you think it would have been presented by now? Why was a non citizen allowed to be elected President, because he is indeed a citizen? None of your comments offer any real proof and absent of proof you have no case. Stop wasting your time, go out find the proof and then present your case.
by mike on Dec 8, 2008 at 12:09 pm
To all:
Why would Scalia refer to the Court a case that in its main particulars are identical to Donofrio’s (but apparently better written and without some lower court garbage) when Donofrio’s has been dismissed? In fact, a letter written to the court by Donofrio detailed an attempt by the lower court judge to ‘taint’ the case in some way.
The convention is that a Justice will not send a case to conference if he or she does not believe that at least 4 Justices will want to review it. This is more positive than it was before. Work out the logic!!!!
I certainly would not put on black arm-bands or open up bottles of bubbly yet (well, maybe the latter – just because).
by JoeE on Dec 8, 2008 at 12:26 pm
The Supreme Court today decided not to hear the case brought by Mr. Donofrio. I would say this issue for now is dead.
by Mikr on Dec 8, 2008 at 12:31 pm
In Reply to Mikr: The issue is far from dead. His qualification and allegiances will forever remain in doubt. The next shabby candidate will have his attachment to the country even more scrutinized earlier.
by Taylor on Dec 8, 2008 at 12:52 pm
In Reply to mike:
Our basic concerns is the upholding of the Constitution. Berg, Donofrio, and Wrotnowski are Democrats. The Donofrio case argues against the natural born citizenship of Obama, McCain, and another man. So, this is not a partisan witch hunt. It is not about being a sore loser!
Obama considers the Constitution to be a “flawed document” as he has spoken about.
I have heard Berg say if Obama can prove that he is a natural born citizen then the issue will go away.
If Obama can prove that he was not a British citizen at birth through his father then Donofrio would surrender his case. Obama himself admits he is a British citizen at birth.
Obama is hiding!
by Hugh on Dec 8, 2008 at 12:55 pm
Who says this issue is dead? It was said the issue of Clinton and a certain interm was dead until a certain blue dress appeared.
Actually the issue now gets really interesting. Obama will be president and will have reporters constantly asking him questions, questions like:
“Mr. President, is there anything that might change your mind in releasing your full BC? Some argue there are questions to which hospital you were born. Only your original BC can answer this question. Surely you can find no harm in releasing your full BC?”
OB most likely will refuse of course, and his refusal to direct requests will slowly make reporters suspicious … leading to more investigation and questions to OB.
This issue is dead? Yeah right!
by JimAZtec on Dec 8, 2008 at 1:27 pm
No one has proved that the man cannot prove he is a citizen. Some simply state he has not provided a long form of his birth certificate as if you are a government official and can impose such a requirement. The government does with few exception accept such documentation. I understand you don’t like the state of Hawaii’s rule son proper identification but hey this what you get in a country where federalism mostly still prevails. The document posted on the internet has all the elements required by the State Dept. for proof of citizenship. I think it is ridiculous for you to expect to individually inspect someone’s birth certificate.
Also this issue has officially gone away. They didn’t even comment on the these cases. What does that tell you? Tells me. No. Merit.
by TJ on Dec 8, 2008 at 1:38 pm
In Reply to Hugh:
Obama has brought forward proof and yet no one believes him. No one believes his birth certificate is real. If no one believes him, then what proof can he offer to end this controversy? Even the fact that I say he has brought fourth proof I’m sure will be questioned. We tend to believe only what we want to believe and nothing will change that. The truth is that some simply do not like this guy and their opinion cannot be swayed. Again my question is, what do you need from Obama to convince you of his truthfulness?
by Mike on Dec 8, 2008 at 1:50 pm
There are ligament questions about McCain’s citizenship as well. Yet had he been elected no one would be having this discussion. The fact is that Barack Obama brings out the fear in people. The fear of the unknown. He is the first Black President an unknown, he has a strange sounding foreign name an unknown, he has been linked to terrorist (by his opponents) and his patriotism has been questioned. These are the only reasons we are having this discussion. Fear is the reason you question his citizenship. Citizenship is not the issue, the real issue is simply fear.
by mike on Dec 8, 2008 at 2:02 pm
This argument is absurd:
1. By the author’s logic, my daughter, who was born to me (a natural-born US citizen) in the US and raised in the US is NOT a natural-born citizen because my husband is a British citizen by birth. If not the US, then what country IS she a natural-born citizen of? The UK – a place where she has never set foot? Ridiculous.
2. Under the “laws of nature” argument which you so eloquently describe, the citizenship line runs through the father. Great for the 1800s I suppose, but not for 2008. Until very recently, there was no way to definitely prove paternity. However, one could prove that a child was born to a mother. Next you’ll be telling us that Henry VIII was justified in beheading/divorcing his wives for not producing sons even though we now know that the male contributes the chromosome that determines gender. Get with the times.
You may not like Obama, and that’s certainly your prerogative. But he won fair and square. It’s time to take off the tin foil hats and get over it.
by pecks on Dec 8, 2008 at 2:06 pm
In Reply to TJ:
The issue hasn’t gone away at all! Donofrio’s case has been dismissed. Wrotnowski’s case is scheduled for conference on the 12th. Wrotnowski’s brief was written primarily by Donofrio. Donofrio states it is better written than his own.
Why would Scalia send Wrotnowski’s to conference on the day Donofrio’s is dismissed when they were fundamentally identical? They don’t have time to waste time. They’re human. They need MORE time, and Wrotnowski’s was neater. They also need more time to get some more soldiers over from Iraq (just joking (I hope)).
Expect orders on the 12th. Expect the MSM to be in disarray. Expect Cheney to raise his hand to take the oath in January (just joking! (I think)).
by JoeE on Dec 8, 2008 at 2:33 pm
In Reply to pecks:
There’s nothing absurd about the argument.
I am a natural born citizen born to a mother who was not. I married a British woman and my children are not. That is ,unlike my mother and my children, I was born in the U.S., to two citizens who did not have allegiance to any other country AT THE TIME OF MY BIRTH. Your children like my children are citizens, but they are not natural born citizens. Neither is an American citizen who, for instance, has a father who was a KGB agent, but defected to the U.S., married here and gave birth here to her. I give that example to highlight the significance of the safeguard.
The author is discussing the framers intentions in the terms that the framers used. Today’s justices would take fully into account the woman’s position in the issue. The addition of the woman however doesn’t change the matter of law.
I am a Democrat. I do not wear tinfoil hats, but I respect the Rule of Law and those who do likewise, knowing that it is what separates us from anarchy. It would be wonderful if others, whatever their allegiances, would take their heads, with or without tinfoil hats, out of the sand.
by JoeE on Dec 8, 2008 at 2:51 pm
In Reply to pecks:
Nothing absurd about it. Your daughter was born a British citizen because that is British law. Did your daughter inherit your last name? If not, how can she inherit your citizenship? Both Howard and Trumbull said being born with a partial allegiance to to another country is unacceptable.
It has always been the law of this country that minors born outside of the allegiance of this country can elect to choose between nations upon age.
Paternity testing is totally irrelevant under laws of nature. If the father is unknown then chances are there is a law that says the mother’s condition will be that of the child. If not, then it is for the child to choose upon maturity.
My English Grandmother was born in NY in 1902, but did not become a citizen until 1910. I’ll let you figure out why.
by JimAZtec on Dec 8, 2008 at 2:54 pm
In Reply to mike:
Completely false. Donofrio’s case was in court before the election. He names McCain, as well as Obama.
It also just happens that most of these people bringing cases are not Republicans, and Berg is a lifetime member of the NAACP.
Bring another unknown black guy with a strange name, but one who is eligible, and this discussion will not exist.
by JoeE on Dec 8, 2008 at 3:02 pm
In Reply to JoeE:
It is. At the end of the day the Court relies of precedence and seven presidents were in the same boat as Obama with one non-citizen parent. All those presidents were sworn in by the U.S. Supreme Court. So given that more 15 percent of former serving presidents have this exact situation is unlikely that the Court will hear this case. The Court would then have to some how explain how past presidents could serve under this circumstance and Obama cannot. Do you have an a reasoning for the Court to use to invalidate an Obama presidency while validating the past ones of Buchanan and Arthur and others? The Supreme Court unless under extraordinary circumstance is unlikely to invalidate Obama based on past precedence–both in officiating other presidents with similar heritage issues and because current interpretations of U.S. law only have two tiers of citizenship. Natural Born and Naturalized. So if I understand you correctly you expect the Court to overturn the validation of past presidencies base don obscure reading of the Constitution AND overturn current understanding of U.S. citizenship rules. I wish I knew you well enough to bet some good money if you are so certain.
by TJ on Dec 8, 2008 at 3:03 pm
In Reply to pecks:
You appear to recognize that the term “natural born citizen” as used by the framers of the Constitution basically boils down to a paternity requirement. Not only must a POTUS candidate will reveal the identity of his or her father, he or she must also demonstrate that his or her father was a U.S. citizen at the moment of his or her birth. The only way this requirement does not apply now is if one or more subsequent amendments to the U.S. Constitution not specifically directed to the presidential eligibility clause, nevertheless altered the original meaning of “natural born citizen”. The only amendment which some have argued worked such a change is the 14th amendment. But there are many and much better arguments to show that the 14th amendment can be given its full and complete effect without working any change whatsoever to the term “natural born citizen” associated with the presidential eligibility clause. The net result is that while one may hold 14th amendment citizenship while also being a natural born citizen, it is also absolutely possible to hold 14th amendment citizenship **without** being a natural born citizen.
That’s it. No aspersions cast on the individual who is a native-born citizen who does not also qualify as a “natural born citizen”. It’s just that the office of POTUS is not an option for them. FWIW, and this I’m sure is no real consolation to your daughter, but it’s not an option for millions of natural born citizens for a whole host of reasons not having anything to do with paternity. The best part about having a clear statement from the Supreme Court would be that we have absolute clarity about who can and can’t run for POTUS so that those who are not eligible can avoid wasting their valuable time and money in consideration of a run, and those who are eligible are not left in a situation of wondering, once they have run and won the popular vote, whether they should expect to see any sort of hitch in the process by which they actually assume the office of POTUS some two-and-a-half months later.
“The argument” is by no means absurd because it is not in step with the times. Instead, I would say the argument that the meaning of the Constitution needs to bend with the times is the truly absurd argument.
by Publius on Dec 8, 2008 at 3:04 pm
In Reply to Mike:
I would want to see Obama’s a copy of his long-form vault birth certificate. This would include his name, mother’s name, father’s name, place of birth, time of birth, only child or not only child, the deliverly doctor’s name and his signature, and date.
The document must include a proper seal, date that is timely relative to other documents within the same jurisdiction. The document paper must be authentic to the period.
I would want independent verification of the document do to all the clamor over these matters. This would actually protect all parties involved, including Obama.
I would want to see all that. What is posted on the Internet is a certificate of live birth (COLB). This is not the same since Hawaii has given foreign-born people CLOB’s when the people were not actually born in Hawaii.
So, I am not looking for a substitute, I am looking for the real thing! Others in the government must yield up a real “certified vault copy”, yet Obama refuses to do so.
(In the same sense, its like providing authentic identification to board an airplane. If you don’t provide authentic identification you will not get on the airplane.)
I would want evidence that he is not an Indonesian citizen, or British-Kenyan citizen at birth. I would want to see his passports. He has admitted that he is a British citizen.
We are not being mean or racist towards Obama in requesting proper identification. We need to know who Obama really is and where he is from.
For at least these reasons the lawsuits exist.
by Hugh on Dec 8, 2008 at 3:05 pm
In Reply to TJ:
As it happens, of the fathers of the seven presidents to which you refer, only that of Chester A. Arthur (who ascended to the presidency in great haste following the assassination of President Garfield and was never elected president in his own right) was not a citizen of the United States at the moment of birth of his son, the future president. Credit Leo Donofrio for unbelievably fast, but also timely and (as yet) unrefuted research on this point.
See:
http://naturalborncitizen.wordpress.com/2008/12/05/president-chester-arthur-et-al-why-they-aren%e2%80%99t-precedent-for-obama%e2%80%99s-eligibility/
You should also be aware that only now (i.e., within the past few days) has anyone actually put two and two together to determine that President Arthur was apparently a dual citizen at birth (naturalization records now reveal that his father did not become a citizen for more than ten years after CAA was born). The net result was that Chester A. Arthur, though clearly a native-born citizen of the U.S., was nevertheless **not** a “natural born citizen”. You may again thank Leo Donofrio for birddogging this critical fact, as well as a host of other fascinating facts to show without ambiguity that President Arthur was, in fact, well aware of his ineligibility. In fact, President Arthur appears to have lied, obfuscated, and/or mislead multiple times in what turned out to be a successful effort (until now) to avoid scrutiny on this point.
See:
http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/
by Publius on Dec 8, 2008 at 3:27 pm
In Reply to TJ:
It certainly is not, and what would you bet on?
You stated that “this issue has officially gone away”.
I stated, that “it has not”. Obviously it hasn’t. Donofrio’s case has been dismissed, but Wrotnowski’s has been sent to conference on the 12th!! The same issue!
Now, the question is: Why would Scalia, after the court dismissed Donofrio’s case, put Wrotnowski’s into play ON THE SAME DAY?
Donofrio, who wrote Wrotnowski’s, stated that the case was IDENTICAL, and that Wrotnowski’s was better written than his own, and without some incumbrances that inflicted Donofrio’s. Work it out!
As far as the ‘illigitimate’ Presidents go, I don’t accept your arguments at all, except for Arthur, and none of them are precedents. Arthur might have gone through the cracks, but that is all. A crime is not a precedent.
by JoeE on Dec 8, 2008 at 4:19 pm
In response to Publius –
The Constitution, including the 14th Amendment, in no way defines “natural born citizen.” The discussion herein of the various 19th court decisions regarding citizenship via the male line does not suggest in any way that the Constitution be amended to “change with the times.”
by roddy on Dec 8, 2008 at 5:20 pm
In Reply to roddy:
Just because the 14th Amendment only says “born citizen” doesn’t mean it isn’t the same as “natural born citizen”. People tend to forget the clause “subject to the jurisdiction” of the US. One of the 14th Amendment’s framers explicitly commented that this meant a citizen under the SOLE jurisdiction of the US, with no dual allegiance. And you can only be under the sole jurisdiction of the US at birth, if both your parents are US citizens, OR if one of them is a US citizen and the other a citizen of a country, the laws of which do not extend that country’s citizenship onto the child. Therefore a “born citizen” according to the 14th Amendment is (in most cases) a citizen born on US soil to two US citizen parents. And that is in fact a “natural born citizen”.
This is also why I don’t think that the 14th Amendment can overrule the Presidential Qualifications clause, as I had tried to construct it many days ago as a possible defense strategy. The only way for it to overrule would be by disregarding the Framer’s comment and other interpretations in the same vein.
by Joss on Dec 8, 2008 at 7:36 pm
The following quote is from a State of Hawaii Fact Sheet entitled: “The Petition Process to Place the Names of Candidates for President and Vice President on the State of Hawaii 2008 General Election Ballot:”Â
“To run for United States President or United States Vice President, all candidates must be:
A natural citizen of the United States (means natural-born citizen);”¦”
In order for the presidential and vice presidential candidates of a qualified political party to appear on the Hawaii ballot, the party must have filed, 60 days prior to the general election, a sworn application with the chief election officer in the Office of Elections. The application shall include:
“A statement that each candidate is legally qualified to serve under the provisions of the United States Constitution;”¦”Â
If Obama is not a natural born citizen, then the Democratic Party filed a false application with the State of Hawaii under penalty of perjury. Thus, their party’s 4 electors would be ineligible to vote.
It would be interesting to see a copy of the application filed by the Democratic Party for Obama.
by Slade on Dec 8, 2008 at 10:31 pm
Additionally, how did persons become both citizens and “subject to the jurisdiction” of the United States through naturalization? By renouncing all prior allegiances to other nations and by declaring their allegiance to this one in advance of course. Why would “subject to the jurisdiction thereof” be any different with persons born under the Fourteenth Amendment since this jurisdiction applies equally to all who are either born or naturalized?
[snip]
Oh man, I don’t think ANYONE has ever caught that before.
So, BO owed allegiance to the UK by the sole law of the UK and not the U.S. because the U.S. had no jurisdiction over him like they would had if he had been naturalized.
Some of the heaviest lifting I have ever seen on this subject.
by Agent X on Dec 9, 2008 at 1:50 am
In Reply to Agent X:
Interesting. This simplistic view had never entered my mind before. It certainly affirms Trumbull’s interpretation of meaning not owing allegiance to anybody else which is the idea behind naturalization.
But what about the mother? I know naturalization of minor children always followed the naturalization of their father, and mothers became naturalized along with their spouse.
But British law was in operation on Obama Sr. which created an immediate citizenship and allegiance claim on Jr. So he could not be a citizen under our naturalization laws.
I am going to have to think this over.
by Larry on Dec 9, 2008 at 3:56 am
In Reply to roddy:
You asked for a definition of “natural born citizen”. Please consider the following. I’d be interested to hear what you think of it.
One universal point most all early publicists agreed on was natural-born citizen must mean one who is a citizen by no act of law. If a person owes their citizenship to some act of law (naturalization for example) they cannot be considered a natural-born citizen. This leads us to defining natural-born citizen under the laws of nature, or jus naturale, the laws the founders recognized and embraced.
Under the laws of nature, every child born requires no act of law to establish the fact the child inherits through nature his/her father’s citizenship as well as his name (or even his property) through birth. As shown in the following passage from Emerich de Vattel’s 1758 work, this law of nature is also recognized by the law of nations:
“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 a 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.”
de Vattel, Emerich, The Law of Nations of the Principles of Natural Law (1758), Book I (Of Nations Considered in Themselves), Chapter 10 (Of Our Native Country, and Several Things That Relate to It), Section 212 (Citizens and natives).
by Publius on Dec 9, 2008 at 5:48 am
In Reply to Agent X:
Wrong. I actually did catch that before.
I just thought it was so obvious that it didn’t need any mention. Well, come to think of it, I did actually mention it as an inverted argument, saying that 14A-naturalized citizens are “natural citizens” at the end of the process, and so must be the 14A-born-citizens”â€because they have the same rights except for Presidency: what’s valid for 14A naturalized citizens is also valid for 14A born citizens”â€, so “born citizens” under 14A are “natural” by implication, they are “born” and they are “citizens”, therefore “natural born citizens”. Of course I tried to argue that “subject to the jurisdiction thereof” does not explicitly say “subject only to the jurisdiction thereof”, but I could only do so by disregarding most comments to and interpretations of 14A, and I doubt that this could be a sustainable strategy in court.
In any case, it shows that it always boils down to what “subjection to the jurisdiction thereof” means. Is it sole allegiance? Or does it in principle not rule out dual allegiance?
If it means sole allegiance, it would then show that Obama is not even a “born citizen” under the Constitution (14A), but by statute, by some later law. Then he could never be regarded as “natural born”.
by Joss on Dec 9, 2008 at 6:48 am
In Reply to Joss:
And I also have to add that it might not be completely ruled out that citizens naturalized under 14A in those times only had sole allegiance to the US. Sure, they discarded their British (or other) citizenship, but I’m not sure if it really meant that they were then only subject to the sole jurisdiction of the US. For a long time, the allegiance to the crown of a British “natural born subject” was perpetual, and no change of citizenship could render their allegiance to the crown invalid. This is may be the reason, why the Framers did not write “subject only to the jurisdiction thereof” in 14A. (Just a thought.)
by Joss on Dec 9, 2008 at 6:53 am
Obviously you people have no idea how the Court operates. They do it based on precedence. This is such an obscure reading of the Constitution and defies more than a century of standing interpretation of law on citizenship. Normally the court either stands on precedence in such cases in which case your side loses or punts it it back to Congress to clarify the meaning of the law in which your side loses. You would have a new clarifying law that states there are only two tiers for natural born and you only need only be born here not even to any citizens to be considered natural born within days. I love you guys but you should read up on the institutions you are relying for this.
by TJ on Dec 9, 2008 at 7:14 am
This has truely been an informative article and the comments are thoughtful. Permit me to add a few things here. It is my position that a Natural-Born Citizen has two citizen parents. Every president that has ever served, with the exception of one (he changed his birthdate to be after his father was naturalized. Even he knew he wasn’t natural-born), who was not eligible to the presidency under the grandfather clause, has had two citizen parents.
Thomas Jefferson wrote Virginia’s birthright law of 1777 requiring the father to be a citizen.
“We can say with confidence that a natural-born citizen of the United States means those persons born whose father the United States already has an established jurisdiction over, i.e., born to father’s who are themselves citizens of the United States. ”
~~~~~~~~~~~
The “natural born” Clause’s origins have been traced to a July 25, 1787 letter from John Jay to the presiding officer of the Constitutional Convention, George Washington. Jay wrote, “Permit me to hint, whether it would be wise and seasonable to provide a strong check to the admission of Foreigners into the administration of our national Government; and to declare expressly that the Commander in Chief of the American army shall not be given to nor devolve on, any but a natural born Citizen.”
To be considered Natural-Born, both parents must be citizens, otherwise, we’ll have anchor babies running for POTUS in the future.
by Nobama on Dec 9, 2008 at 7:32 am
TJ said:
“Obviously you people have no idea how the Court operates. They do it based on precedence. This is such an obscure reading of the Constitution and defies more than a century of standing interpretation of law on citizenship. Normally the court either stands on precedence in such cases in which case your side loses or punts it it back to Congress to clarify the meaning of the law in which your side loses. You would have a new clarifying law that states there are only two tiers for natural born and you only need only be born here not even to any citizens to be considered natural born within days. I love you guys but you should read up on the institutions you are relying for this.”
I say:
The Supreme Court operates under the precedent of Marbury v. Madison, in which it asserted (without subsequent refutation by the legislative or executive branches) that it is the role of the Supreme Court to declare what the language of the Constitution means.
There are exactly **zero** decisions by the Supreme Court in the history of this country that are on point. No definition of the term “natural born citizen” has ever been provided. The founders of the country, and the framers and ratifiers of the Constitution, were more or less all well-versed in the major (read influential) philosophical and political texts of the day. These included de Vattel’s 1758 masterpiece “Law of Nations or the Principles of Natural Law Applied to the Conduct and to the Affairs of Nations and of Sovereigns Congress or the Executive”, the full text of which is fully available to those who are interested and care to type out a few keystrokes.
According to de Vattel, “[t]he natives, or natural-born citizens, are those born in the country, of parents who are citizens.” This provides a positive definition of the exact term “natural born citizen” that leaves no wiggle room, rendering it perfect for use in a founding document like the U.S. Constitution.
No wonder there is no discussion of what the term means. Each and every one of the founders was well aware of de Vattel’s apparently authoritative definition, such that no such discussion was needed.
In the same passage, de Vattel also flatly states that if a person is born in a given country of a father who is a foreigner, “it will be only the place of his birth, and not his country.” This provides a precise example of a person who does not qualify as a natural born citizen that, in the case of Barack Obama, is not only directly on point, but unfortunately for him, damning.
Buck up folks. We’ve got only a few short weeks to take concerted action to ensure that the U.S. Constitution is not jammed into the shredder for good.
by Publius on Dec 9, 2008 at 7:51 am
In Reply to Publius:
In cases where there is an undefined term in the Constitution the Court generally (especially conservative ones) Congress define the term or they define the term based on established court cases. So since the term is undefined the most you could expect the Court to do is punt to Congress to define the term, while the least is for them to go by established court cases. Congress including Republicans will define it as the standing two-tier system most Americans understand in fear of alienating millions of voters–who would see this as a move to create a new tier of citizenship which could then be used as precedence for removing protections in other areas. That slippery slope of creating this type of basically citizenship black hole would in effect be legal chaos. Also, some of those people in Congress undoubtedly also fall into this dubious category you guys are trying to sell here, possibly ending their chance to be president. You have no chance.
by Tj on Dec 9, 2008 at 8:03 am
In Reply to Nobama:
You may be unaware of the following “news” released by Leo Donofrio within the past week:
“I’ve been forwarded the actual naturalization record for William Arthur on microfiche, obtained from the Library of Congress. He was naturalized in New York State and became a United States citizen in August 1843.
“Chester Arthur perpetrated a fraud as to his eligibility to be Vice President by spreading various lies about his parents’ heritage. President Arthur’s father, William Arthur, became a United States citizen in August 1843. But Chester Arthur was born in 1829. Therefore, he was a British Citizen by descent, and a dual citizen at birth, if not his whole life.”
See: http://naturalborncitizen.wordpress.com/2008/12/06/urgent-historical-breakthrough-proof-chester-arthur-concealed-he-was-a-british-subject-at-birth/
FWIW, if one wishes to point to the example of Chester A. Arthur as precedent for dual citizenship at birth, I would think it would be necessary to provide an innocent explanation of why the man did everything he could to prevent this fact from becoming publicly known.
As for a suitable derivation of “natural born citizen” that would explain the wholly unattributed use of such term by founder Jay in a personal letter to founder Washington, I would refer you to my recent posts re de Vattel’s 1758 masterpiece “The Law of Nations; or, Principles of the Law of Nature, Applied to the Conduct and Affairs of Nations and Sovereigns.”
Both Jay and Washington would have been well familiar with the details of de Vattel’s The Law of Nations. From what I have been able to gather so far, this was the most influential book of its genre until the late-1800′s, and was widely read in the American colonies. It appears that by 1872, it had been reprinted nineteen times **in America**.
by Publius on Dec 9, 2008 at 8:16 am
In Reply to Hugh: You are asking for things that no one else in the United States has to provide to get a passport affirming citizenship. The type of document provided by Obama is established as valid proof of citizenship. A certified copy from the state saying he was born in the state. You do not need to know the hospital, birth weight, and other things to prove citizenship. So in fact you asking for additional proof beyond what the State Dept. requires. You are also asking people to ignore the fact that even other presidents also had the same circumstance as Obama and were not asked to provide such information. Call it what you want but your extra scrutiny, steadfast belief that there is fraud being committed here, and your motives seem dubious.
by TJ on Dec 9, 2008 at 8:21 am
In Reply to TJ:
You mentioned other Presidents that were in the same circumstance as Obama. Who are the Presidents?
Due to conflicts concerning Obama’s birth, I do want to see the a certified copy of the original source document. A COLB is a derivatively prepared document. So, I do stand by the following:
What is posted on the Internet is a certificate of live birth (COLB). This is not the same since Hawaii has given foreign-born people CLOB’s when the people were not actually born in Hawaii.
If Obama’s original source document says he is born in Hawaii this part of the conflict will go away. This will not solve his dual-citizenship issues that Obama admits to on his website.
What you say is correct for states that do not allow COLBs for foreign-born people.
The people bringing the lawsuits are not being mean to Obama. They want the truth.
by Hugh on Dec 9, 2008 at 9:11 am
Joss wrote: “In any case, it shows that it always boils down to what “subjection to the jurisdiction thereof” means. Is it sole allegiance? Or does it in principle not rule out dual allegiance?”
Has to be sole allegiance since sole and absolute allegiance is required to be a citizen through naturalization. duh! Trumbull and Howard said it means not owing allegiance to nobody else. The proclamation of 1874 removes all doubt whether it was congress’ intent to recognize dual allegiances. And there is Bingham making it very clear to all except perhaps the deaf and blind.
by JimAZtec on Dec 9, 2008 at 10:18 am
In Reply to JimAZtec:
The author of the majority opinion in U.S. v. Wong Kim Ark was Justice Horace Gray. Justice Gray was appointed by President Chester A. Arthur. CAA has only just now been shown to have been a dual citizen at birth via his non-naturalized father, who was a British subject until 1843 (fourteen years after CAA was born). Inquiring minds (well, at least mine) now want to know:
Was Justice Gray aware of CAA’s dual citizenship at birth at the time the case of U.S. v. Wong Kim Ark was considered and decided?
Consider the following passage from the dissent to U.S. v. Wong Kim Ark, penned by Chief Justice Fuller and concurred with by Justice Harlan:
“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.”Â
Book I, c.19, § 212.”Â
Assume for the moment that Justice Gray was aware of CAA’s dual citizenship ‘secret’ when he wrote the deciding majority opinion in U.S. v. Wong Kim Ark. It must have been mortifying in the extreme for justice Gray to contemplate the possibility of the above-indicated passage from de Vattel’s 1758 work being cited with approval in a decisive majority opinion of the U.S. Supreme Court. Can it be that Gray did whatever he had to do, including taking the lead in writing the majority opinion, and bringing as many of his colleagues as possible to heel by a combination of browbeating them intellectually and plying them with the finest spirits, to ensure that the CAA-damning sentiments of de Vattel were forever banished to the dissenting opinion, if they were to appear at all?
Is it beyond the pale to ponder whether Justice Horace Gray threw a federal case in an attempt to lay the groundwork of support for a future Supreme Court decision holding that dual citizenship at birth is consistent with natural born citizen status?
by Publius on Dec 9, 2008 at 11:15 am
In Reply to Publius:
Actually, Horace Gray was initially considered by President Garfield, but he rejected Gray because Gray would not supply answers to his questions. Gray like all justices of the day owed their seat on the court to the railroad companies (or bankers) because they were the ones who had the President’s ear when it came to potential nominees.
by JimAZtec on Dec 9, 2008 at 11:29 am
In Reply to Hugh:
The law on keeping foreign births on file in Hawaii I do believe is from 1982 and would not apply to Obama. Hawaiian officials have stated he was born in Hawaii. Otherwise they would complicate in criminal fraud since it is illegal to present a forged document as identification. So are you calling state officials liars too, I know you have already dismissed media affirmations, saying the document has both a state seal and a notarization from a state official validating it. So why wouldn’t Hawaiian officials come out and say that the information Obama presented was false if they have seen the “vault copy” and it was different? Such a document would likely be admissible in a court of law or to the state Dept. and unless you would want to inspect yourself we would need to define a satisfactory was of independent determination. I think your request is beyond unreasonable.
In answer to your question: Andrew Jackson is the only president born of two immigrants, both Irish. Presidents with one immigrant parent are Thomas Jefferson, whose mother was born in England, James Buchanan and Chester Arthur, both of whom had Irish fathers, and Woodrow Wilson (1913-1921) and Herbert Hoover (1929-1933), whose mothers were born respectively in England and Canada. (By some accounts their immigrant parents became citizens, however I would like to point out that was primarily because of laws enacted by Congress such as the 1855 law giving women married to U.S. citizens automatic citizenship.)
So, you have failed to come to terms with the fact that Congress has the right to define natural born–as it did in 1790. So nothing is stopping Congress from coming in and retroactively defining the law again. Sorry they do that crap all the time. You would then have to prove that somehow it wasn’t their right to do it under the Constitution. All these arguments are primarily based on how Congress defined the term circa 1790/1795. Nothing will stop them from clarifying what they meant back then if they need to.
by TJ on Dec 9, 2008 at 11:33 am
In Reply to TJ:
You said:
“So, you have failed to come to terms with the fact that Congress has the right to define natural born”â€as it did in 1790. So nothing is stopping Congress from coming in and retroactively defining the law again. Sorry they do that crap all the time. You would then have to prove that somehow it wasn’t their right to do it under the Constitution. All these arguments are primarily based on how Congress defined the term circa 1790/1795. Nothing will stop them from clarifying what they meant back then if they need to.”
I say:
I don’t know where you get your information. This line of reasoning couldn’t sound more wrong to me.
The founders of our country relied on the so-called natural law to give authority to their Declaration of Independence (see below). The framers of the U.S. Constitution also built upon a foundation of natural law (see below). The founders and constitutional framers also took the known provisions of International Law into account when crafting their particular documents.
But from the time we declared independence, and throughout the period of the Articles of Confederation, the term “Natural Born Citizen” never appeared in any piece of legislation or federal law. The best available derivation for this constitutional term appears to indicate that it was coined by Emmerich de Vattel, or at least authoritatively defined by him in the eyes of the founders/framers. In his text The Law of Nations, the first English translation of which appeared in 1759, Vattel described as “natural born citizens” individuals who were born in a given country to parents who are citizens of that country. The context seems to show that Vattel was explicating natural law, at least insofar as the same may be said to apply to the question of citizenship in a given sovereign country.
While provisions of natural law or international law cannot necessarily ‘trump’ a constitutional provision to the contrary, when there is no such contrary constitutional provision, it is possible for a provision of natural law or international law to govern a given case or controversy. That is to say, the U.S. Constitution has its sphere, and natural law and international law have their spheres. I believe the term “natural born citizen”, as originally coined by Vattel, and as later used by the constitutional framers, has meaning only with reference to a provision of natural law. In other words, for purposes of breathing life into the presidential eligibility clause, and in an effort to ensure that the person of the U.S. president would always embody undivided fidelity to our country, the framers incorporated an aspect of natural law that they believed fit the bill.
You appear to be adamant that subsequent action by Congress short of the adoption of a Constitutional Amendment **can** change the meaning of “natural born citizen”, such that it no longer means what it once did. In response, I would say that the language of the Constitution constitutes the supreme law of the United States. If a provision of U.S. statutory law is found by the U.S. Supreme Court to be contrary to a provision of the U.S. Constitution, properly construed, the offending provision of U.S. statutory law is declared null and void, and of no force or effect. As I mentioned in an earlier post, in the 1804 decision of Marbury v. Madison, the U.S. Supreme Court declared that its word is final when it comes to the meaning of constitutional terms, the meaning of which is in dispute and in need of explication. Whatever one may think of the propriety of this holding from Marbury v. Madison, the rule set down in 1804 continues to be the rule now.
The Supreme Court has never been presented with a case or controversy in which a definition of the constitution term “natural born citizen” was needed in order to resolve a dispute. As a result, there is exactly **no** affirmative case law on point. While the dissent in Wong Kim Ark cited the passage of Vattel’s 1758 text containing the foregoing definition for “natural born citizen”, the question in that case was one of basic U.S. citizenship, not presidential eligibility. Nevertheless, given the fact that all of our founders and framers were familiar with Vattel, I would expect the U.S. Supreme Court to adopt Vattel’s 1758 definition, if required to do so in order to resolve a current dispute. And I would expect it to do so in a way that gives no more than a passing consideration of Congressional utterances other than those that resulted in the adoption of Constitutional Amendments (like the 14th amendment).
by Publius on Dec 9, 2008 at 1:37 pm
In Reply to Publius:
*shakes head*
Actually if you read the original Constitution correctly only two forms of citizenship are given distinction, natural born and citizens at the time of the writing of the constitution. In the 14th amendment also gives only two types of citizens for constitutional purposes are given, born or naturalized. And Congress defines who is considered naturalized. So since we affirmatively know the Constitution says you are a citizen if you are born here and Congress defines who is naturalized under article two, your point cannot stand up against a strict reading of the law. If I had a laser pin I would draw you a diagram. Your reading would create a third type of citizenship NOT FOUND ANYWHERE IN THE CONSTITUTION.
Sorry Mr. Paul but I just couldn’t let it go.
by TJ on Dec 9, 2008 at 2:26 pm
In Reply to Publius:
That is patently ridiculous. Of course we can redefine the meaning. In the first place it was never actually defined for the purposes of the Constitution. Thus Congress, only three years after it was written, attempted to define who was a natural citizen and who was not. Using someone’s definition from before there was even an idea of a U.S. Constitution is dubious. U.S. courts would base a decision on the law as written or ask Congress to define what is means. If there was a third tier as you claim why is not listed in the Constitution. The Supreme Court notes that it is “silent” on the issue . Since the presidential requirement says “natural born” and the 14th amendment say by birth, it is much easier to draw the conclusion that they are one in the same while they don’t have to be the framers or the amenders could have easily added clarifying language stating except XXXX. But they did not, which means to read in an exception would be arbitrary. You would be creating a third tier where none exists in the document otherwise, nor in any other part of U.S. law.
by TJ on Dec 9, 2008 at 3:22 pm
In Reply to TJ:
Please see my response below each of your paragraphs.
The law on keeping foreign births on file in Hawaii I do believe is from 1982 and would not apply to Obama. Hawaiian officials have stated he was born in Hawaii. Otherwise they would complicate in criminal fraud since it is illegal to present a forged document as identification. So are you calling state officials liars too, I know you have already dismissed media affirmations, saying the document has both a state seal and a notarization from a state official validating it. So why wouldn’t Hawaiian officials come out and say that the information Obama presented was false if they have seen the “vault copy” and it was different? Such a document would likely be admissible in a court of law or to the state Dept. and unless you would want to inspect yourself we would need to define a satisfactory was of independent determination. I think your request is beyond unreasonable.
———————————————————–
My reply:
As I understand it what has be posted on the Internet is a manipulated COLB that has no indentifying control number showing on it. The number has been “blackened out”. The Hawaiian officials would not have provided this particular certificate show in support of Obama. The displayed COLB is not accurate. The officials say that they have Obama’s “vault copy” under seal. They are telling the truth. I am not saying that the officials are lying. They are not saying what is on the “vault copy”. They officials, acting in the capacity as official cannot reveal what is on the “vault copy”. See the American Thinker.Com has this article:
http://www.americanthinker.com/2008/11/why_the_barack_obama_birth_cer.html
————————————————————
In answer to your question: Andrew Jackson is the only president born of two immigrants, both Irish. Presidents with one immigrant parent are Thomas Jefferson, whose mother was born in England, James Buchanan and Chester Arthur, both of whom had Irish fathers, and Woodrow Wilson (1913-1921) and Herbert Hoover (1929-1933), whose mothers were born respectively in England and Canada. (By some accounts their immigrant parents became citizens, however I would like to point out that was primarily because of laws enacted by Congress such as the 1855 law giving women married to U.S. citizens automatic citizenship.)
————————————————————-
My reply:
See Leo Donofrio’s work at http://www.naturalborncitizen.wordpress.com for his answers.
————————————————————-
So, you have failed to come to terms with the fact that Congress has the right to define natural born”â€as it did in 1790. So nothing is stopping Congress from coming in and retroactively defining the law again. Sorry they do that crap all the time. You would then have to prove that somehow it wasn’t their right to do it under the Constitution. All these arguments are primarily based on how Congress defined the term circa 1790/1795. Nothing will stop them from clarifying what they meant back then if they need to.
————————————————————-
My reply:
I am certainly not a lawyer. So I will rely on Publius’ response on 12/09/08 1:37 PM #952 to your direct quote on #947 in your response to my words on #942.
————————————————————-
by Hugh on Dec 9, 2008 at 4:26 pm
In Reply to TJ:
I am convinced that you misapprehend the scope of the power that SCOTUS believes it holds, and that it has exercized regularly from 1804 onward.
According to the applicable holding of the SCOTUS decision in Marbury v. Madison, it is the sole province of SCOTUS, and of no other body or branch of government, to declare what the meaning of “natural born citizen” is. Excluding for the moment any complications that are introduced by virtue of the adoption of the 14th Amendment, and again, going by the precedent of Marbury v. Madison, SCOTUS has a blank slate before it. What this means is, if SCOTUS chooses to do so, it is entitled to start its inquiry in the year 1789 (when the Constitution was initially enacted), and move backward in time as necessary and as appropriate to arrive at a definition for “natural born citizen” that it, in its supreme position, deems is appropriate based on all the relevant facts and circumstances.
By no means is this the behavior of an activist court, or of a court that does not take its duty seriously. Rather, it is what the Supreme Court more or less always does in circumstances like this (i.e., when presented with a true case of first impression regarding a constitutional term, the meaning of which is in dispute).
Listen to me now and believe me later. I realize that you are personally convinced that actions taken by Congress cannot legitimately be ignored by SCOTUS. But I am here to tell you that in circumstances like this, they most certainly **can**, and most likely **will** be ignored by SCOTUS outright, pursuant to SCOTUS precedent in Marbury v. Madison.
by Publius on Dec 9, 2008 at 4:33 pm
Maezeppa wrote: “‘Citizenship’ rules are not ‘natural law’ by anybody’s definition. Citizenship s part of the social contract, a function of government.”
Well what rule governed people in the absence of a social contract and organized government? Did not father’s always claim the children born to them to be their children and no one else’s? Which tribe did children belong to?
Maezeppa wrote: “There is NO ‘natural law’ that says children ‘inherit’ citizenship from their fathers (or mothers), or what ‘citizenship’ is.”
There is also NO law that says children inherit their fathers last name you know? Maybe because is considered, um, natural?
Maezeppa wrote: “That’s just BS made up by whackos trying to reverse-engineer a justification for not accepting Obama is President of the United States.”
Also, wasn’t it “whackos” who reversed-engineered national law on citizenship to begin with so guys like Wong Kim Ark and Barry could have what had been forbidden by law?
Maezeppa = whacko.
by JimAZtec on Dec 9, 2008 at 6:42 pm
In Reply to Mr Paul:
you asked: “Someon here expects a USA court of law to punish a child for the misactions/actions of its parents? Which laws in the land do that??? LOL!!!”
Well, one example that jumps to mind is every law that allows the abortion of a baby (viable or not) if the cause of its conception was rape or incest.
by Neville Newman on Dec 10, 2008 at 7:41 am
In Reply to Neville Newman:
The answer to the question of Obama’s ineligibilty is quite simple. See the historical documents that prove this at:
http://www.timesexaminer.com/content/view/896/45/
For supporting documentation see:
http://www.constitution.org/vattel/vattel_01.htm
http://leahy.senate.gov/press/200804/041008c.html
by Writer on Dec 11, 2008 at 10:06 pm
Since the 14th Amendment was ratified, it has changed the meaning of “natural born citizen.” As we know, the 14th Amendment is interpreted as providing that persons born in the US are citizens from birth, so long as they are subject to the jurisdiction of the US, and they are not required to go through the process of naturalization in order to reside here or exercise their rights as citizens. And “subject to its jurisdiction” means “not in the US on a diplomatic passport.” Because the 14th Amendment includes this fundamental proposition, the earlier jurisprudence on citizenship is largely irrelevant, no matter how your commenters may want to slice or dice it in order to “prove” that Senator Obama does not satisfy the constitutional qualification to be president. He has produced a birth certificate, and Hawaiian state officials have verified it is authentic. Game over. Because he was born here, and his father was subject to US law (e.g., not here on a diplomatic passport), it doesn’t matter whether both of his parents were citizens. The “naturalized from birth” is a nice talking point, but not one the courts are likely to adopt. Instead, “natural born citizenship” is citizenship from birth, either by place of birth under the 14th Amendment, or by the citizenship of one’s parents, as in the case of Sen. McCain (and all the business about the Canal Zone, McCain Jr’s Navy status, and the fringe on the flag is irrelevant.) Your commenters might also want to remember that the Constitution includes a proscription of ex post facto laws. We will know a lot more about how that will apply after the gay marriage lawsuits in California post Prop 8 are litigated, but I expect that will mean that once a status (whether citizenship or marriage) has been granted, it cannot be summarily revoked by a subsequent change in the law or the Constitution.
by Mike on Dec 12, 2008 at 4:55 am
In Reply to Mike:
Based on the fact that you are offering an argument at least nominally based on legal principals, I assume you are in favor of SCOTUS agreeing to consider the merits of Cort Wrotnowski’s Application for Emergency Stay, which is one of the matters before the court in its 10:00 a.m. conference today.
In one of my recent comments to an article by Cort’s attorney and collaborator Leo Donofrio, I predicted that the argument you are trying to advance would eventually surface. I have my doubts as to whether it has true merit because I view it as the back end of a two-step ruse initiated by SCOTUS Justice Horace Gray in his 6-2 majority decision in Wong Kim Ark.
Justice Gray was nominated by President Chester A. Arthur. CAA was born in Vermont in 1829. His father, William, was born in Ireland, and though he emigrated to North America at the age of 18, and spent some time early on in Canada (one of CAA’s older siblings was born there), he eventually settled in the United States. Problem is, he never got around to naturalizing until 1843 in Washington County, New York. Before that, he was a British subject. Though the official written history of CAA does not reflect it yet, this means that CAA was a British subject at birth.
(For what it’s worth, there are sure to be those who assert that CAA was not a U.S. citizen at birth because of this circumstance, regardless of the impact of the later-adopted 14th amendment. Others seeking to avoid the effects of current U.S. laws that became law by virtue of CAA’s signature may lodge legal arguments in court that allege that CAA was not a “natural born citizen” and was thus never a valid occupant of the office of POTUS.)
As you know, Wong Kim Ark was a decision in a dispute arising from the U.S. government refusing to allow an individual to return to the U.S. from China on the basis that he was not a U.S. citizen, and thus had no right of re-entry. The relevant holding of Justice Gray’s decision was that the condition of the U.S. Constitution as of the adoption of the 14th Amendment required that the federal government recognize as citizens, without any need for further proof or documentation, those who can show that they were born on U.S. soil.
The way I see it, for your argument to remain above water, SCOTUS can’t now disavow the arguably wayward logic of Justice Gray’s Wong Kim Ark decision, which in light of recent developments appears tailor-made to benefit an ex-U.S. president whose U.S.-soil birth might not have been enough to bestow U.S. citizenship at the time. Rather, SCOTUS must not only embrace and preserve the logic of Wong Kim Ark, but also build upon it, to support the outcome you favor.
As you have divined, in order to be of use to Mr. Obama now, and in order to support theories for retroactively validating the tarnished presidency of Chester A. Arthur, a SCOTUS decision in Cort Wrotnowski’s case today would need to flatly declare that at least one of the changes to the U.S. Constitution wrought by 14th Amendment was to water down the Article II, section 1 term “natural born citizen”. In other words, the Supreme Court must hold that the original meaning of the term “natural born citizen”, namely: “born on U.S. soil to parents who are themselves U.S. citizens free and clear”, has been changed so that the term now has a new meaning, to wit: “born on U.S. soil to foreign parents who are of sufficiently low rank as to allow the United States avoid the specific embarrassment of being forced to accept an actual foreign prince or princess as U.S. president.”
Of course, you will admit that this new definition, however favorable to Mr. Obama as he prepares to assume the office of POTUS, would not necessarily redound to the benefit of the RNC. No, and unfortunately, the RNC would be forced to conclude that its most recent candidate for POTUS is not now, and never in fact was or will be, a “natural born citizen” by virtue of being born abroad. On the bright side, Bobby Jindal, the son of two non-citizen immigrant parents, will be eligible to run in 2012, so all is not lost, correct?
by Publius on Dec 12, 2008 at 6:54 am
In Reply to Mike:
You said:
Your commenters might also want to remember that the Constitution includes a proscription of ex post facto laws. We will know a lot more about how that will apply after the gay marriage lawsuits in California post Prop 8 are litigated, but I expect that will mean that once a status (whether citizenship or marriage) has been granted, it cannot be summarily revoked by a subsequent change in the law or the Constitution.
I say:
To my mind, a SCOTUS decision resolving a current dispute as to who is and who is not eligible to ascend to the office of POTUS can be crafted which entirely avoids the messy subject of who is or who is not a U.S. citizen.
While it appears to be your opinion that the U.S. should embrace the logic and the holding of U.S. v. Wong Kim Ark and rule against Cort Wrotnowski on that basis, I believe it is well within the power of SCOTUS to ignore the entire Wong Kim Ark episode as irrelevant because relating to an entirely different issue. The question at issue (is one born in the U.S. to two non-citizens nevertheless a U.S. citizen?) in Wong Kim Ark clearly did not require SCOTUS to take a position one way or the other as to the meaning of the Article II, section 1 term “natural born citizen”. Therefore there is no legal basis to assert that the Supreme Court would have to overturn the related holding in Wong Kim Ark (changes wrought to the U.S. Constitution by the language of the 14th Amendment require the U.S. to recognize the citizenship of one born in the U.S. to two non-resident citizens) in order to conclude that the Article II, section 1 term “natural born citizen” excludes anyone not born to two U.S. citizens (Mr. Obama), as well as anyone not born on U.S. soil (Mr. McCain).
In other words, a decision along the lines of what Messrs. Donofrio and Wrotnowski are suggesting is fully consistent with a parallel conclusion that each of the major party candidates is now, and has always been, a U.S. citizen. Such a decision would therefore not implicate the Constitution’s ex post facto in the way you have suggested.
Do you have any other explanation as to why a SCOTUS decision in favor of Mr. Wrotnowski would necessary implicate the Constitution’s ex post facto prohibition?
by Publius on Dec 12, 2008 at 8:50 am
In Reply to Publius:
Sorry–Corrected Sentence:
Therefore there is no legal basis to assert that the Supreme Court would have to overturn the related holding in Wong Kim Ark (changes wrought to the U.S. Constitution by the language of the 14th Amendment require the U.S. to recognize the citizenship of one born in the U.S. to two non-citizen residents) in order to conclude that the Article II, section 1 term “natural born citizen” excludes anyone not born to two U.S. citizens (Mr. Obama), as well as anyone not born on U.S. soil (Mr. McCain).
by Publius on Dec 12, 2008 at 9:23 am
Chester Arthur’s presidency aside (and the issue of whether or not it is ‘tarnished’ has much more to do with his extreme partisanship and manipulation of what is now the civil service than whether or not he was a natural born citizen), the issue here is the meaning of the plain language of the 14th Amendment. As you might recall, a major headache for police in NYC and Washington, DC is that cars with diplomatic plates are free to park anywhere willy-nilly, and stiff the local government on the tens of thousands of parking tickets they garner over the years. This is because persons with diplomatic passports and diplomatic immunity are not “subject to the jurisdiction” of the US, and the only remedy for their legal transgressions (whether parking tickets or murder) is declaring them ‘persona non grata’ and exclusion from the country.
As mentioned in my earlier post, even though he was born outside the US, McCain is a US citizen because his parents were US citizens at the time of his birth. Obama is a US citizen because he was born in the US and was subject to the jurisdiction of the US because of his parents’ status. I acknowledge that this might be a different issue if his father had been here on a diplomatic passport rather than a student visa.
The 14th amendment was adopted to address the issue of the newly freed enslaved persons in the South to guaranty that they would have the rights of US citizens, and it unalterably changed the definition of a natural born citizen. You might not like Justice Grey’s interpretation, but 75% of his Court bought onto it, and they were in a much better position than you and I to understand the issues the amendment was drafted to address. It would be a major change in our law for the Court to reverse this decision after more than 100 years, and because of the ‘ex post facto’ clause, I do not think that reversal of the decision would change anything with respect to the citizenship of those of us who are already alive. I do not think there is any question that Gov. Jindal meets the ‘natural born’ qualification.
And isn’t it interesting that both major candidates in this year’s election raise the issue?
by Mike on Dec 12, 2008 at 10:55 am
As has already been observed, I believe that Mssrs. Wrotnowski and Dombrio both have a standing issue; that is what tripped up the Dombrio petition 9-0, and I do not expect any different outcome on the Wrotnowski petition.
I think these decisions could be seen an an indication that the Court does not wish to revisit this part of its jurisprudence.
Publius might believe that a decision on ‘natural born citizen’ can be crafted without affecting the Wong Kim Ark decision. But that decision rests on the premise that Wong was a US citizen by virtue of the circumstances of his birth. I think it would be exceedingly difficult for the Court to now take a position that the Wong decision does not affect the interpretation of “natural born citizen,” and the effect of the 14th Amendment on that expression. And the 9-0 decision on Dombrio’s petition suggests that none of the present justices want to craft that argument.
by Mike on Dec 12, 2008 at 11:29 am
In Reply to Mike:
Even if I disagree with it (I still do), I think I understand your position on the 14th Amendment phrase “subject to the jursdiction”. It is probably consistent with the tenor and logic of the Wong Kim Ark decision, at least with respect to whether a given child born on U.S. soil qualifies for citizenship or not. With what you’ve offered so far, though, I still have no reason to doubt my conclusion that if SCOTUS desires to do so, it can render a merits opinion concurring with Wrotnowski’s proposed “natural born citizen” definition without disturbing a hair on the head of the pro-citizenship holding in U.S. v. Wong Kim Ark.
I am reminded that in its decision in the Elg case, SCOTUS essentially endorsed the lower court conclusion that the individual in question, a U.S. born child whose parents were naturalized U.S. citizens, was a “natural born citizen” at birth and was entitled to the benefits of U.S. citizenship as an adult despite the decision by the parents during her childhood to return to their native country and renounce their U.S. citizenship. This is a good example of the exact term “natural born citizen” being used outside the context of a presidential eligibility dispute, but otherwise correctly in my view, since the term is being used to describe someone whose circumstances cause her to falls within Cort Wrotnowski’s proposed definition. As I am unaware of contrary examples (i.e., examples of SCOTUS decisions in which the court is expressing clear comfort with the use of the term to describe someone who falls outside Cort’s definition), I would be eager to hear from you as to whether you can cite any.
Regarding Mr. McCain, I apologize, but I am left rather empty by your repeated claims that the circumstances of his birth qualify him for the office of POTUS. He was not born on U.S. soil, which causes him to fall outside the category of born citizens specified in the 14th Amendment, as well as outside Cort’s proposed definition. If it is your contention that he came about his citizenship naturally, this tends to conflict with your contention that the 14th Amendment worked an irreversible redefinition of the term “natural born citizen” that freed such term from its moorings in Natural Law or the Law of Nations.
I can’t help but wonder whether you are trying to have your cake and eat it too in this regard. Is it your belief that if SCOTUS crafts an opinion that recognizes constitutionally-valid natural born citizen status on the part of Mr. McCain (born off-base in a Panamanian hospital in Colon), a similar conclusion with regard to Mr. Obama (which IMHO is at least somewhat less of a logical “leap”), will seem less controversial, and therefore more acceptable, by comparison? Do you believe his father’s status as a U.S. admiral somehow pushes him into the category of NBC-qualified?
Who is an admiral more like: a diplomat, or a foreign national temporarily in the U.S. on a student visa? Do you really feel comfortable splitting hairs like this on a critical Constitutional issue? Moreso, I would think a so-called ‘bright line’ rule is in order.
FWIW, you also haven’t offered any facts or legal analysis to refute my conclusion that Justice Gray’s decision in Wong Kim Ark cannot be relied upon on its own as SCOTUS precedent for the proposition that subjects or citizens of foreign countries are qualified to hold the office of POTUS provided they were born on U.S. soil. I base my conclusion more or less solely based on the facts of the earlier case being too far misaligned with those of the current controversy, such that the earlier case can’t be considered ‘on point’. This is why I say that the only way your sentiments can possibly prevail is if a subsequent SCOTUS decision set in the context of a true presidential qualifications controversy, like the one we have now, adheres to specific logic (if not the main holding) of Justice Gray’s decision in U.S. v. Wong Kim Ark, and builds on it based on the new and different facts.
That said, how confident are you that your position has the more merit than Leo’s/Corts, such that a majority of the Supreme Court as currently constituted would be persuaded to bring about the result you suggest? Isn’t it at least as likely that majority of justices will be persuaded to coalesce around the opposite position, presuming the >100 year old citizenship holding of U.S. v. Wong Kim Ark can be preserved intact, as I believe it can?
I do find it interesting that both major candidates in this year’s election have details in their background which raise this issue. But based on my opinion (based on a couple of months of paying attention to the matter) that Cort Wrotnowski’s proposed definition of “natural born citizen” is the only one that makes sense based on the facts at hand, I have to think that both of the major party candidates were well aware of their weaknesses in this regard months and probably years ago. As such, I presume that Mr. Obama and Mr. McCain were equally uninterested in raising the issue or perpetuating it in any way during the final months of the campaign.
by Publius on Dec 12, 2008 at 12:36 pm
In Reply to Mike:
Based on the following, it appears that Mr. Wrotnowski’s Application for Emergency Stay is doomed to suffer the same fate on Monday, December 15th as Mr. Donofrio’s did on Monday of this week. Denied w/o comment.
http://www.supremecourtus.gov/orders/courtorders/121208zr.pdf
You said:
As has already been observed, I believe that Mssrs. Wrotnowski and Dombrio both have a standing issue…
I say:
A decision on the merits of Mr. Donofrio’s case was rendered by the Supreme Court of New Jersey. As a result, in the matter of his Application for Emergency Stay to SCOTUS, Mr. Donofrio’s standing to sue the Secretary of State of New Jersey was not before the court. That is not to say that SCOTUS could not be heard to defy the courts of New Jersey, where ordinary citizens and groups thereof have long had the benefit of unusually liberal court rules in terms of demonstrating their standing to sue government officials in state court. Just that they would have to raise the issue of standing sua sponte, and they explain why New Jersey’s court rules should not apply, in order to justify a refusal to consider the case on the merits.
You said:
…that is what tripped up the Dombrio petition 9-0, and I do not expect any different outcome on the Wrotnowski petition.
I say:
You are likely right, of course, on the ultimate outcome of the Wrotnowski Applicaton for Emergency Stay. But I would be strongly inclined to warn you away from any particular conclusion on the question of whether the justices as a whole, or any justice in particular, believed that Mr. Donofrio’s or Mr. Wrotnowski’s case was fatally short on merit. Do not discount the possibility, for example, that the justices felt the issue, though probably meritorious, was not yet ripe for adjudication by an Article III court (i.e., too early) because the Electoral College has not yet met and voted, or is moot (too late) because the die is already cast (e.g., New Jersey’s role is complete), or that the claim ‘non-justiciable’ by an Article III court because disputes of this sort are more properly aired out in another forum (e.g., by Electors at the convention, by Congress upon counting elector ballots, etc.). The fact that we will likely be left with an unreviewable (because purely discretionary) “no” decision with no comment given means that no closure is at hand for the issues raised. Again, I must emphasize that this outcome is perfectly consistent with a circumstance in which the legal arguments lodged as part of Mr. Wrotnowski’s claim resonated with at least some of the justices.
You said:
I think these decisions could be seen an an indication that the Court does not wish to revisit this part of its jurisprudence.
I say:
I have to say I concur, except to say that there really is nothing on record that qualifies as true “jurisprudence” in terms of the definition of “natural born citizen”. A decision on either of Mr. Donofrio’s or Mr. Wrotnowski’s claims would have addressed a classic case of first impression regarding the U.S. Constitution, a circumstance that is by now quite rare. I sincerely hope that the reticence exhibited by SCOTUS this month is warranted, as I believe this issue will not go away until an on-point SCOTUS decision is rendered.
You said:
Publius might believe that a decision on “Ëœnatural born citizen’ can be crafted without affecting the Wong Kim Ark decision. But that decision rests on the premise that Wong was a US citizen by virtue of the circumstances of his birth. I think it would be exceedingly difficult for the Court to now take a position that the Wong decision does not affect the interpretation of “natural born citizen,”Â…
I say:
Strictly speaking, the similarity between the two cases that is currently striking you is probably not based on a correspondence of the facts and circumstances involved, but rather, based on the specific legal conclusion arrived at by Justice Gray. To further illustrate my point, consider whether, if Justice Gray’s conclusion had been the opposite (no citizenship for Wong Kim Ark, “subject to the jurisdiction of the United States” means subject to the sole jurisdiction thereof so as to deny the possibility of dual citizenship), I can’t imagine coming up with a good argument for why Mr. Obama’s example of being blocked from assuming the office of POTUS by virtue of being a British subject at birth must be considered to be analogous to Mr. Ark’s example of being refused re-entry to the U.S. as a non-citizen, based solely on the common fact of the two births having taken place on U.S. soil.
You said:
And the 9-0 decision on Dombrio’s petition suggests that none of the present justices want to craft that argument.
I say:
Enough of this talk of “9-0″. They were fully empowered to deny the two Applications outright (e.g., based on a procedural technicality or other flaw), even if all nine justices found themselves personally convinced that, on balance, the Applicants were probably in the right based both on the facts, and on and the law. Likely as not we will never learn what the specific breakdown was, at least not in the short term. In the meantime, the issue may be brought before SCOTUS once again, this time by an appellant whose case is, by comparison, more ripe, or perhaps less ‘blemished’, prompting the court to render an on-point decision on the merits, and answering this 200+ year old question once and for all.
by Publius on Dec 12, 2008 at 2:03 pm
Wong Kim Ark court saw the condition of the parents a deciding factor and not just birth. Justice gray was involved in Elk v. Wilkins (1884) where the court held “subject to the jurisdiction” of the United States required “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”Â
Wong Kim Ark is both factually and legally invalid. Anyone who might draw attention to Wong Kim Ark are themselves morally corrupt.
by Hank Willi on Dec 12, 2008 at 2:18 pm
I think Publius is focusing on a distinction without a difference, when he tries to distringuish Mr. Wong’s status as US citizen by virtue of birth, from the status of Sen. Obama as a “natural born citizen” of the US. The only difference is that neither of Mr. Wong’s parents were US citizens, whereas Sen. Obama’s mother was a US citizen. As stated in my earlier posts, I do not believe that there is any logical difference between someone who is a US citizen by virtue of the circumstances of his birth, and a “natural-born citizen.”
US jurisprudence has always held that the child of two US citizens is a citizen from birth, no matter where the child was born, and in this case, the “dual citizenship” exception cited by Publius is also a red herring, since dual citizen status would be determined by the law of the country where the child was born, rather than by US law: the law of one country might provide that the child of a non-national born within its borders is a citizen, while the law of a second country might not. As I said in my earlier posts, the phrase “subject to jurisdiction” means that the individual involved is subject to the jurisdiction of the US, which means “not here on diplomatic status”, and therefore subject to the laws of the US.
Likewise, Publius has cited the Elg case as additional authority for the proposition that a child born in the US is a US Citizen from birth, even if it’s parents subsequently relinquish their citizenship. I think Publius might agree that this is an indication of where the courts are likely to go, and could be considered ‘persuasive’ rather than ‘binding’ authority.
On the issue of the various attempts to obtain a judicial determination of Sen. Obama’s qualification, I think it is delusional to think that a justice who desired to weigh in on the issue would not vote in favor of the writ, and the 9-0 decisions should be an indication of the opinion of the Court on the merits of this litigation. Remember that court jurisdiction and standing are always relevant, given the limited jurisdiction of the federal courts.
(And BTW, “president-elect” is a status, rather than a title, and Sen. Obama should be called just that.)
by Mike on Dec 12, 2008 at 2:51 pm
BREAKING NEWS!!!
White House says “No Blair House for Obama until after Electoral College vote count”.
http://www.uslaw.com/pop/?p=164
by Sophie on Dec 12, 2008 at 9:58 pm
In Reply to Mike:
You rely on the SCOTUS decision in U.S. v. Wong Kim Ark as legal precedent for the proposition that Mr. Obama is a natural born citizen and is thus qualified for the office of POTUS. By your reasoning, Wong Kim Ark himself, born of two resident alien parents, was also a natural born citizen, fully qualified for the office of POTUS. In light of the recent decision in Hamdi v. Rumsfeld, it is clear that by now, more than 100 years after deciding Wong Kim Ark’s case, SCOTUS can be relied upon to recognize anyone who is born on U.S. soil, even individuals like Los Angeles-born Yaser Esam Hamdi who are born to alien parents who are in the United States illegally.
The U.S. government regards Yaser Esam Hamdi, who was arrested in a battle zone by Northern Alliance soldiers to whom he surrendered his firearm, as an illegal enemy combatant. The Supreme Court recognizes him as a U.S. citizen. By your analysis, it is settled U.S. law that if Mr. Hamdi finds life in the United States to his liking now, and decides to live here for the next 14 years or so, he will be eligible to run for (and if he manages to muster up sufficient popularity, win and assume) the office of POTUS.
Does this trouble you?
by Publius on Dec 13, 2008 at 7:09 am
While there may be a number of troubling aspects to the idea that an accused terrorist or ‘fellow traveller’ like Yaser Esam Hamdi might be able to become president, the most disturbing is the notion that he could garner the political support and votes to become president. However, I do believe that after adoption of the 14th Amendment, he does meet the Constitutional qualifications (assuming he is 35 yrs old). However, so did Timothy McVeigh and Charlie Manson, and I wouldn’t want to see either of them as president, either.
by Mike on Dec 13, 2008 at 11:22 am
Why 66,000,000 Obama Votes Are Not the Will of People
One of the most common arguments presented by Obamabots why the people who are challenging Obama’s eligibility to be President should not do so is because 66,000,000 people voted for Obama. Therefore choice for Obama is the will of the people. Wrong, wrong, wrong and 66,000,000 votes wrong. Only half of America voted. Only half of the half who voted, voted for whom they thought was Obama. That makes the number only 25% of the people who thought they voted for Obama. That is hardly the will of the people. The candidate for whom 66,000,000 people voted, was not the candidate they thought he was.
1. First of all Obama’s true legal name is Barry Sotoero. If Obama’s real name is Barry Sotoero, the people voted for Barack Hussein Obama and not Barry Sotoero. Barack Obama doesn’t exist except by his fictional creation.
2. If Obama knowing he failed to meet one of the three criteria to become president, then he is knowingly a false candidate. False means not real. Not real means fiction. The people voted for a fictional candidate and not a bonafide qualified real candidate. They voted for a fictional character.
3. If Obama was “change you could believe in”Â, then the people voted for their belief in change not to get short changed.
4. If Obama is MSM favorite and MSM suppressed vital information necessary for the public choice and reported only favorable information about Obama, then the people voted for Obama media hype, not the favorite.
5. If Obama is a flim/flam man, the people voted for the flim/flam and not the man. The man is an illusion.
6. If Obama is an empty suit, they voted for the suit and not the empty.
7. If Obama is “the one”Â, they voted for a fantasy and not the man.
8. If Obama is one slick glittering package, they voted for the package and not the slick.
9. If Obama is a silver plated turd, they voted for the silver plating and not the turd.
If Obama is not qualified under the US Constitution to be President, then he perjured himself and perpetrated a heinous fraud upon the American people. All those people who voted in good faith for him have been betrayed. The reality is that had MSM been objective in their reporting about Obama and disclosed the question of his eligibility based upon his citizenship, perhaps 66,000,000 would have voted differently. Because Obama, the DNC, MSM, and a few thousand more deliberately covered up the truth, published a forged COLB, chances are very good there is a USURPER about to steal the government and place America in the greatest NATIONAL SECURITY THREAT in her history.
Under no circumstances can Obamabots claim because 66,000,000 who voted for what they thought was a valid candidate these votes represent the will of the people. Again, had the voters known the real facts, the question is would they have voted for him. It cannot be called the will of the people when the people who voted had voted based upon false information.
The fat lady hasn’t sung yet. The more you discover the more power you gain. Join the discussion at http://www.blogtalkradio.com/vos Sunday 12-14-08 from 7 p.m. to 10 p.m. PST. How will Blag’s arrest affect the rest of the Obama thugs?
Check out this video regarding the electoral college
Cut and paste ““ it’s excellent
http://wethepeopleusa.ning.com/video/video/show?id=2482704%3AVideo%3A13154
by Therese Daniels on Dec 13, 2008 at 6:56 pm
Mike seems to suggest that there isn’t a substantive difference in the meaning of the terms, Citizen and Natural Born Citizen (relative to the circumstances at birth). Apparently many suggest that there is confusion in what the term Natural Born Citizen means altogether. As one who does not know the law, perhaps you could enlighten me here, as you are sounding as if you do.
There is a consensus that individual X is a Natural Born Citizen. Just for fun, lets say he goes off to China, renounces his U.S. citizenship and becomes a Chinese national. Now, he is obviously not a Citizen of the U.S., yet surely he is still a natural born American? After many years our fictional character (let’s call him Kim) decides it wasn’t a great idea after all, as the cultural revolution has become like ancient history and it’s becoming more like the capitalist system he wanted to leave, and reluctantly returns to the U.S. and becomes naturalized – with very little trouble (after all he is natural born). After the requisite amount of time he decides to run for the Presidency. He is a natural born American and he is a citizen. Is he a natural born citizen? Is there still no significance between his being natural born and being a citizen who was born in the U.S.? He is also a statutory citizen, is he not? Is he perhaps a Citizen, who is native born?
Why would the framers make a distinction between a qualification for a senator, who should be a citizen, and that of the Commander in Chief, who should be a natural born citizen? Superfluous verbiage? What would lawyers (like you?) do if there is a confusion about a term which was used widely in a bygone age,? Would you consult the dictionaries of the time.? And if there wasn’t an appropriate dictionary (one national in character explicitly showing local distinctions of the term), would you not consult those with the greater erudition who used the term at the time and place in question? And would they, especially if they used it emphatically, without undo contradiction by their peers, be considered authorities of the term? How much of an authority relative to a well respected dictionary? Would you in general, concur with these individuals? I understand that there is a distinction between intentions in the law and the intentions or motivations of the framers, but is there not a bridge?
Hamdi is a “Ëœknown”Ëœ entity without the best and uncompromised interests of the US at heart. Hopefully no one would vote for him or for Charlie Manson admirer, Bill Ayers. The problem is with the “Ëœunknown”Ëœ entities who may not have undivided loyalty to the US. Did the framers not have this also in mind when they devised the more stringent qualification?
by JoeE on Dec 14, 2008 at 2:44 am
In Reply to Mike:
If you are loathe to condemn a candidate for POTUS solely on the basis of his or her being a dual citizen at birth, I think you would have company in me. I assure you, I am am doing my dead level best to avoid leading anyone astray on the proper criteria for determining who is and who is not a “natural born citizen” as that term is used in Article II, section 1 of the U.S. Constitution.
Certainly, the fact of dual citizenship at birth should not be the sum and substance of any indictment of a candidate for POTUS. Strictly speaking, the Constitution includes no positive language that specifically provides that dual citizens are automatically disqualified.
In terms of the true question at hand in the case of Wong Kim Ark, which is whether the U.S. government was obliged to recognize him as a citizen of the United States or not based on the fact of his birth on U.S. soil, it may be helpful to consider one similarity between the circumstances of Wong Kim Ark’s birth, Barack Hussein Obama’s birth, and Chester A. Arthur’s birth, one difference unique to the circumstances of WKK’s birth which I believe probably never actually counted against him, and one one difference unique to the circumstances of BHO’s birth which may (at least potentially) complicate his case for why he should be considered a “natural born citizen” as that term is used in the Article II, Section 1 presidential eligibility clause of the Constitution.
If not for the inspired research of Leo Donofrio earlier this month on the case of former U.S. President Chester A. Arthur, we would still be ignorant of the fact that CAA’s father only became a citizen of the United States in the county of Washington, New York in 1843, some 14 years after CAA’s 1829 birth in Vermont to a U.S. citizen mother.
So beyond the fact that all were born in the United States, one key similarity beween and among WKA, CAA, and BHO is that each was born to a father who was a foreign national at the time.
As we know, after a failed attempt to secure the Republican Nomination for president (1884), and after being replaced in office by Democrat Grover Cleveland of New York (1885), CAA died in 1886. SCOTUS decided the case of Wong Kim Ark some twelve years later, in 1898. Before 1898, one who was born on U.S. soil to a resident foreign father was not considered a U.S. citizen, but rather, was presumed to have inherited the father’s citizenship. Of course, if the father was a resident alien otherwise qualifed for naturalization later in life, at the time a child is born to him (prior to 1898, at least), that child would presumably also be considered a resident alien, and would be similarly qualified to become a U.S. citizen at some point in the future.
So it seems clear that that it was only after the SCOTUS decision in Wong Kim Ark that the U.S. government was legally obliged to recognize, as U.S. citizens, individuals who were born on U.S. soil to non-citizen fathers.
Did BHO and CAA have anything like a “leg up” over WKA in terms of claiming U.S. citizenship at birth, it would presumably be the fact that the mother of each was a U.S. citizen, whereas WKA’s mother was a resident alien (Chinese national)? If this is in fact a distinction with a difference, I would think it would be important to determine when this occurred. It certainly wasn’t always the case, and is arguably not the case now.
According to my understanding of the natural law relating to this issue, throughout history, at least up until the time of Wong Kim Ark’s birth in San Francisco sometime between 1868 and 1873, being born to a citizen father was a sufficient condition for a given child to be considered to have inherited his or her citizenship. That is, whether your birth occurred domestically, or in a foreign country, if your father was a citizen, you were a citizen.
Beyond this, however, my understanding is, that being born to a citizen father was traditionally also always a **necessary** condition for a given child to be considered to have inherited his or her citizenship. The upshot of this, of course, is that, back in the day (at least), and as bad or ‘off-key’ as this may sound to the modern ear, particularly in the U.S., the citizenship status of the mother never actually mattered when it came to the relevant provisions of natural law. This was certainly the case when CAA was born in 1829, at least up until and including the time WKA was born (in the 1868-1873 time frame).
Vestiges of this provision of natural law were arguably still operative at the time of BHO’s birth in 1961. Recall that if BHO were born overseas rather than in Hawaii, his mother’s age (eighteen) would not have been sufficient for BHO to meet the then-in-effect citizenship requirements of U.S. statutory law (based on the math, she would have needed to be at least nineteen). To this day, I am unaware that the provisions of natural law allowing one to inherit the citizenship of one’s father only are recognized as having been displaced, such that a more inclusive arrangement prevails such that one can now lay claim to inherited citizenship at birth so long as one of your parents was a citizen. In fact, even now in the U.S., the ability to demonstrate citizenship status based solely on the fact of one’s mother being a U.S. citizen appears to be a 20th century development (and a limited one at that) appears to be a result not of any particular provision of natural law, but rather of recently-enacted positive laws to this effect.
Assuming for the moment that WKA’s mother’s status as a resident alien did not present any additional obstacle (vis-a-vis BHO and CAA) in terms of forcing the government to recognize WKA as a U.S. citizen, we are left to ponder whether BHO Sr.’s status as a temporary U.S. resident (here on a student visa) at the time of BHO’s birth should actually be considered to leave BHO at a **disadvantage** as against WKA and CAA, both whose fathers were permanent residents at the time of their respective births. The argument would be that BHO’s claim to U.S. citizenship is that much weaker than the respective claims of WKK and CAA based on the fact that BHO’s father’s personal ties to the U.S. were clearly weaker by comparison.
To be clear, I make no case that BHO is not a U.S. citizen. His birth in Hawaii, plus the decision in U.S. v. Wong Kim Ark (as recently followed in Hamdi v. Rumsfeld), makes that a foregone conclusion. Rather, I am attempting to explore the relevant facts of his birth to determine whether or not there would be a good reason for considering the nature of BHO’s citizenship to be different from those of CAA and WKK in a way, or to an extent, that could adversely impact his **specific** claim to being a constitutionally-valid natural born citizen.
by Publius on Dec 14, 2008 at 8:42 am
Silly me.
I thought what was under discussion here is whether or not the candidates in the recent election meet Constitutional qualifications to be president of the US, not an ad hominum attack on the winning candidate. Mr. Daniel’s catalog of red herrings aside, the evidence is that Sen. Obama WAS born in the US, but as always, some people will never be persuaded, no matter how convincing the evidence. I suspect that Mr. Daniels would never support the senator or any other Democrat, even if the candidate had been born in the Lincoln Memorial.
From a practical perspective, there is no dispute about the formative part of Sen. Obama’s life, he went to elementary school in Indonesia, was raised by his white grandparents in Hawaii from age 11, went to the state’s most exclusive private high school where he was the only black student, went from there to an exclusive private college in a suburb of Los Angeles, finished his undergraduate degree at an Ivy League university, went on to be elected president of the law review at the nation’s most distinguished law school, and then went on to teach at another distinguished law school while working in Chicago as a community organizer. Most people would think that part of his experience is far more relevant to his patterns of thinking and ability to govern than whether or not his soon-to-decamp father was a British citizen at the time of his birth. A few have noted the stark contrast with the educational achievements of the losing candidates.
Whether or not the president-elect has the temperament and experience to be president, the fact is that he won more than enough votes to be elected president by the electoral college, in fact, almost twice as many as Sen. McCain. Mr. Daniels will have eight years to get used to that.
Why is it that the “silver-plated” part of Mr. Daniel’s screed makes me think of the governor of Alaska, whose popularity there is based on large hand-outs financed by a big increase in corporate taxes? More like Eva Peron than any American politician, but now we are indeed far afield from the issue of consitutional qualifications.
Now, where were we?
by Mike on Dec 14, 2008 at 9:33 am
In Reply to Publius: Am not an attorney, but am smitten by the complexity of this case. To clear up a more mundane issue regarding OBH’s birth and citizenship status, would one of you fellas respond to this. Hope it hasn’t already been covered somewhere here. If it has, my apologies for the intrusion.
Somewhere I read that in 1961, the date of OBH’s birth, INA 301(g) required that if a child was born in a marital situatiion of a US Citizen and an alien that the US Citizen must have been physcially present in US for 10 years, 5 of which must have been over the age of 14. Since OBH’s US Citizen mom was 18 at the time of OBH’s birth, then is it true that her US Citizenship could not have been transmitted to her son for her having failed to meet the physcial requirment’s test? And if that’s true, then isn’t it also true that OBH, even if born in the US, is neither a US Citizen by birth or a “natural born citizen”? ALos, is the current less stringent physical presence requirement retroactive to 1961? Confusing stuff for a neophyte. Thanks.
by Jjim Delaney on Dec 14, 2008 at 10:08 am
In Reply to Jjim Delaney:
Presuming you have the right citation, I suspect the 1961-era statute you are referring to applied to a child born **outside** the United States to a U.S. citizen mothers married to a father of foreign nationality.
The existence of statutes like the one you mention is, it seems to me, evidence that there currently isn’t, and probably never was, any provision of natural law, pursuant to which a children can be considered to inherit their citizenship of their married mothers.
Emphasis on the word “married.”
Consider the following passage taken from the dissent in Wong Kim Ark: “And to the same effect are the modern writers, as, for instance, [169 U.S. 649, 709] Bar, who says: ‘To what nation a person belongs is by the laws of all nations closely dependent on descent. It is almost a 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.”
I have seen it said somewhere that if an boy baby is given his father’s name, but instead of having “Jr.” as a suffix to his name, he is instead given the suffix “II”, this is an indication that the child not the product of a legal marriage between his mother and father. In other words, the boy was born out of wedlock–a ‘bastard’.
I seem to recall seeing where on the Hawaii Certification of Live Birth the Obama campaign released to the public, the candidate’s name is listed as “Barack Hussein Obama II.”
Query whether this is an indication that Barack Hussein Obama and Stanley Ann Dunham were not actually married when the future presidential candidate was born in Hawaii?
If Mr. Obama’s parents were not actually married when he was born, I would think this explains a few things pretty well, and in a way quite favorable to Mr. Obama in terms of his future political plans.
First, assuming it is true that Barack Hussein Obama II’s mother (Stanley Ann Dunham) and father (Barack Hussein Obama) were not legally married at the time of his birth in Hawaii in 1961, and assuming Mr. Obama is personally aware of this, Mr. Obama may (being an attorney and former Con Law professor) be of the professional opinion (as yet unvoiced, but as it turns out, possibly quite correct) that he inherited his U.S. citizenship from his U.S. citizen mother pursuant to this very provision of natural law set forth by Bar in Section 31 of his International Law treatise. Since Chief Justice Fuller cited Section 31 of Bar’s Internation Law treatise in his own dissent (joined by Justice Harlan) to Justice Horace Gray’s SCOTUS majority opinion in U.S. v. Wong Kim Ark, Mr. Obama may have concluded that anyone who currently finds favor in the basic logic of Chief Justice Fuller’s dissenting opinion (as I find I have) is likely to concede (I can see where I might, if prompted) that a child born to an unwed U.S. citizen mother is a “natural born citizen”, fully qualified to assume the office of POTUS.
Second, and again, if all of this (however strange to imagine) is in fact true, it would provide a surprisingly innocent explanation to the average concerned U.S. citizen as to why Mr. Obama has been, let’s say, a little ‘reticent’ when it comes to releasing the vault copy of his birth certificate.
And third, while it may turn out that Chester A. Arthur was in fact not a constitutionally-valid natural born citizen, based on the fact that CAA was born to a father who, though legitimately married to CAA’s mother, was nevertheless a British subject who did not become naturalized in the U.S. until some fourteen years after the CAA’s Vermont birth in 1829, Mr. Obama can take his ease, assured of a different fate based on a certain minor (but nevertheless critically important) factual distinction!
by Publius on Dec 14, 2008 at 12:33 pm
In Reply to Publius:
Jim Delaney may be speaking of U S Code Section 1401 which may relate to INA 301, but it does not speak of marriage of the child’s parents as a requirement as far as I can tell. The only qualifiers are one US citizen parent, one alien parent and the time limits. Please explain!
(g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person
I think the Donofrio and Wrotnowski cases are correct due to Obama’s admission that he is a British citizen via his father.
by Hugh on Dec 14, 2008 at 2:37 pm
In Reply to Hugh:
Natural law seems to indicate that the child of an unmarried U.S. citizen mother inherits U.S. citizenship from the mother.
The “II” versus “Jr.” naming convention may be a distinction without a difference, I’ll admit, though it did pique my curiosity.
Nevertheless if Mr. Obama finds himself in a pinch, and needs to show that he is a constitutionally-vallid natural born citizen in order to assume the office of POTUS, I would think that proof that his mother was not legally married to his father at the time of his birth in Hawaii, delivered between now and January 20th, could be just what the doctor ordered.
by Publius on Dec 14, 2008 at 3:04 pm
In Reply to Publius: In my feeble attempt to cut to the chaste on the issue of a person’s eligibilty to be President or VP, let me try a few permutations here and get your learned replies: first, to be President within the intent and spirit of the Presidential Clause and the 14th Amendment, a person must be a “natural born citizen”. Right?
Thus, and assuming everyone is in agreement on that score, if the candidate had been born of 2 US Citizens within the jurisdiction of the US, s/he would absolutely meet the “natural born” eligibility requirement. Right? And it would be of no consequence if one or both of these US Citizen parents had been naturalized, so long as both were US Citizens at the time of the child’s birth. Right?
Within the meaning and spirit of the law, is transmission of “natural born citizenship” solely dependent upon a father’s “attachment”to the US, i.e. the father’s citizenship when the child is born. In the final analysis, conferral of “natural born citizenship” status is strictly a patrilineal thing. Right?
These specific questions:
If a child is born of a US Citizen mother and an alien father, irrespective of their marital status and the location of birth, the child is absolutely a US Citizen, but NOT a “natural born citizen”. Right?
If a child is born of a US Citizen father either within or without the jurisdiction of the US, irrespective of the mother’s citzenship status, the child is absolutely a “natural born citizen”? Right?
If a child is born to an alien father or an alien mother, or both, within the jurisdiction of the US, the child is absolutely a US Citizen, but not a “natural born citizen”. Right?
Finally, if a child is born to a US Citizen mother and an alien father within the jurisdiction of the US, the child is absolutely a US Citizen, but absolutely NOT a “natural born citizen”? Right?
In the absence of a lofty SCOTUS definition, the definition you guys render here is good enough for me. Thanks!
by Jim Delaney on Dec 14, 2008 at 4:55 pm
In Reply to Publius:
Does natural law confer natural born citizenship to a child of a U.S. citizen mother to an alien-non naturalized father at the time of the child’s birth in the U.S. and its possessions?
Does natural law confer natural born citizenship to a child of a U.S. citizen mother to an alien-non naturalized father at the time of the child’s birth outside the U.S. and its possessions?
If Obama can really produce a valid “vault copy of his birth certificate—long form with all supporting evidence–then he has no problem if he is actually born in Hawaii and his dad was naturalized or actually a citizen at the time of Obama’s birth.
To me the above paragraph seems to fit all Presidents excluding the framers and Chester Arthur.
Do you hold the Obama is Hawaiian born? If you hold to Hawaii, why so? I think the preponderance of evidence leads to Kenya.
In any case, Obama’s refusals are harming America! He is a man who thinks our Constitution is flawed.
Thank for you help! I am sorry if this is a retread for you.
by Hugh on Dec 14, 2008 at 6:42 pm
To Publius: I saw this comment on Americasright.com. Is this valid?
“The cases have not been denied. Donofrio v. Wells has not been denied. I expect that while stays have not been issued based upon Wrotnowski v. Bysiewicz, that it will not be denied today, either.
Donofrio v. Wells, the case, is pending. Expect all to pile up as pending until after the Congress (allegedly) certifies the Electoral College vote.
That is when it may hit the Fed Fan up the hill at the SCOTUS.
See:
article: federal judicial review allowed only after Congressional certification of the presidential vote…”
by Hugh on Dec 15, 2008 at 2:59 pm
My understanding is that the Donofrio case is dead; the lower court determined that the plaintiff did not have standing to challenge Mr. Obama’s citizenship because the nature of the personal harm he alleged was too remote to support the lawsuit. This was appealed to the US Supreme Court, which upheld the ruling of the lower court on December 8, 2008.
Today (12-15-08), the US Supreme Court also denied the plaintiff’s application for an injunction in the Wrotnowski case. This is a pretty good indication that the applicant did not satisfy the Court that there was any likelihood of success on the merits.
It is looking pretty obvious that the Court does not want to get involved in another partisan political dispute.
by Mike on Dec 15, 2008 at 11:31 pm
In Reply to Mike:
Both Donofrio and Wrotnowski were considered dead before the court had rejected their stays. As I said before, the only way to get this before the court is for someone with standing to make a challenge. A likely scenario would be for a state to refuse to certify Obama’s EV’s on the grounds he does not meet the qualification of a natural born.
Obama or the Democratic Party then might sue to challenge the assertion he does not meet the qualification. The FEC conceivably could challenge his qualification if it wasn’t for the fact they lack ability to distinguish fact from fiction.
Another option is to have Arnold Schwarzenegger run for president in 4 years. He could argue he was “born” AND naturalized subject to the jurisdiction of the United States and therefore a natural born citizen. His argument would be just as legitimate as the argument that says anyone born on American soil and subject to the jurisdiction thereof is a natural born citizen. No where does it say someone has to be born on American soil (old wives tale), only they must be born or naturalized and subject to the jurisdiction of the United States just like a naturalized Arnold! There is no distinction between being born or naturalized when it comes to subject to the jurisdiction thereof! Hahahahahaha
Of course subject to the jurisdiction of the US cannot then mean physical location or else idiots can create loopholes all day long like with Obama and maybe even Arnold if he wanted.
by JimAZtec on Dec 16, 2008 at 1:42 am
In Reply to JimAZtec:
Sorry JimAZtec and Mike, but both of you are off-base on this.
Granted, there was a slew of lawsuits challenging Mr. Obama’s legitimacy for the office of POTUS that could never get past square one because the plaintiffs were powerless to demonstrate standing to sue Mr. Obama. Because most of these cases were brought in federal district court, the standing issue was susceptible to relatively easy analysis (because it’s basically the same across the country), with the same result in each case: no standing–get out of my courtroom!
Mr. Donofrio’s case was different. He never sued Mr. Obama personally. He was suing the Secretary of State of New Jersey in state court in New Jersey under the theory that because she was refusing to do her job as set forth in the statutes and Constitution of New Jersey, the court should force her to do her job and begin vetting POTUS candidates, starting with the two major party candidates and one third party candidate this year.
As it happens, Mr. Donofrio benefitted from what happen to be a relatively liberal tradition in New Jersey in granting taxpayers and taxpayer groups standing to sue state actors who fail to do the job they are elected or appointed to do. Moreover, by the time Mr. Donofrio’s case reached SCOTUS, the question of standing to sue was not at issue (it was basically established). The state of New Jersey never challenged him on standing. The Supreme Court of New Jersey made a final ruling based on “movants papers”, thereby rendering a decision on the merits that, procedurally speaking, can never occur absent at least a sub silentio holding that the plaintiff has standing.
With a merits decision in place by the time Mr. Donofrio applied to SCOTUS for an emergency stay of the 2008 election, the question was no longer one of standing, but rather, whether SCOTUS was inclined to intervene in the goings on in New Jersey. The fact that SCOTUS declined Mr. Donofrio’s invitation to mix it up with the bad actors in New Jersey means just that–they took a pass. To my mind, the decision on the part of SCOTUS to stay above the fray has everything to do with the phrase “discretion is the better part of valor”, and very little to do with a desire to express approval or disapproval of Mr. Donofrio’s case on the merits, or to lump Mr. Donofrio in with folks like Mr. Berg, whose standing to sue is questionable at best.
BTW, and IMHO, its a moot question as to whether either Mr. Donofrio or Mr. Wrotowski retain the ability to petition SCOTUS for a writ of certiorari. They have no plans to do so, and quite frankly, given the current atmosphere, I don’t blame either of them one bit for being reticent. Both of them have done yeoman’s work educating all of us in what the Constitution means when it says “natural born citizen”. This despite what appears to me to be an enormous edifice (with no foundation) having been erected to water down the meaning of that term by what seems like dozens of eminent individuals who I believe know better, but who are agenda-driven and are therefore uninterested in originalist arguments.
Now that that genie is out of the bottle, though, it will be interesting to see what the fallout is.
Publius
by Publius on Dec 16, 2008 at 4:06 am
Thanks to Publius for the clarification on the Donofrio case. I may have confused it with the Berg case, which did involve standing, as I recall. And Publius is probably correct that the US Supreme Court doesn’t have the stomach for this, but I think they are also informed by the likeliest outcome, in view of the legal precedents discussed here.
I think that Arnold is probably not the right person to test the meaning of natural-born citizen, since it is pretty much undisputed that he was not subject to the jurisdiction of the US at the time of his birth. Nice to see some humor here, though.
On the issue of clarification raised by Publius, it sounds like the plaintiffs in these suits have done enough work to provide the basis for an interesting and authoritative law review article on the meaning of the constitutional provision. Any takers?
by Mike on Dec 16, 2008 at 12:54 pm
Sure hope I can get a definitive response to my 12/14 queries re those various citizenship situations which may or may not render a child “natural born” for purposes of the Presidiential Clause. Am still somewhat confused over the jurisdictional requirement. Assuming a child is a natural born citizen by virtue of parentage alone (2 US citizen parents or a US Citizen father alone at time of birth), does jurisdiction of birth matter, and is there always the additional requiremenet that either both parents or the father’s firm allegiance alone to the US exists at time of the child’s birth? I thought breaking it down as I did below would help clarify it for me. Thanks!
by Jim Delaney on Dec 16, 2008 at 7:26 pm
Jim Delaney asked for perspectives on the hypothetical situations raised in his earlier post. Here’s my take on his questions:
Q: If a child is born of a US Citizen mother and an alien father, irrespective of their marital status and the location of birth, the child is absolutely a US Citizen, but NOT a “natural born citizen”Â. Right?
Not right. Under the 14th Amendment and Supreme Court decisonal authority, every person who is born in the US and is subject to its jurisdiction is a US citizen, even if their parents are not. My view is that the only exception is the children of foreign diplomats, since foreign diplomats are not subject to US jurisdiction. I would call this “US citizenship because of the circumstances of birth.” Others disagree, but I think that the Supreme Court is VERY unlikely to try to create an intellectual distinction between that and a “natural-born citizen.” After adoption of the 14th Amendment, they are the same thing.
Q. If a child is born of a US Citizen father either within or without the jurisdiction of the US, irrespective of the mother’s citzenship status, the child is absolutely a “natural born citizen”Â? Right?
Generally speaking, the answer is yes, provided that the parents are married. However, this question poses a number of complexities, depending on circumstances, and it raises a number of issues. First is marital status. Second is whether or not diplomatic status is an issue. Third is whether extra-territorial jurisdiction is an issue. But I think that if the parents are married and the father is a US citizen, and the child is born in the US, the child is clearly a natural born citizen. The only possible exception would be if the mother is a foreign diplomat. I do not know what US law says about the children of such “mixed couples” when the child is born outside the US, but I think there is a specific provision for children of US citizen mothers. I agree that under traditional rules, the foreign-born childen of US citizen fathers are US citizens from birth if the parents are married, and are probably not if the parents are not married.
Q. If a child is born to an alien father or an alien mother, or both, within the jurisdiction of the US, the child is absolutely a US Citizen, but not a “natural born citizen”Â. Right?
Children of diplomats (e.g., in the US on diplomatic passports) are NOT subject to US jurisdiction, and in my opinion their US-born children are not US citizens from birth. The US born children of other aliens are US citizens from birth and in my view natural born citizens. I don’t think that the 14th Amendment would create US citizenship for children of aliens born outside the US in places “subject to US jurisdiction,” such as Guantanamo, Cuba.
Q. Finally, if a child is born to a US Citizen mother and an alien father within the jurisdiction of the US, the child is absolutely a US Citizen, but absolutely NOT a “natural born citizen”Â? Right?
As you know from my comments, I do not believe that the Supreme Court would attempt to create a distinction between “natural-born citizen” and those who are US citizens because of the circumstances of their birth. That distinction would undermine the meaning of the 14th Amendment. Therefore, I believe that every person born in the US (other than children of foreign diplomats) is a “natural born citizen.” I haven’t figured out what happens if one parent is a diplomat, and the other is not. Under traditional notions of citizenship, the marital status of the parents would be determinative, and the child would follow the citizenship of the father, if the parents are married, and that of the mother if they are not.
What I have not seen thus far is a logical explanation of a distinction between “natural born citizen” and “someone who is a US citizen because of the circumstances of birth,” and right now, I cannot see one.
by Mike on Dec 18, 2008 at 8:37 am
A friend asserts that he emailed Hawaii Dept of Health which said that Hawaii no longer issues certificates of live birth, only certifications, and that since the us state dept accepts certifications to issue passports, then why does obama need to divulge the vault copy of birth?
what’s the truth here? anyone know?
by Jim Delaney on Dec 18, 2008 at 8:42 am
In Reply to Mike: Thanks, Mike. I understood how the diplomatic piece applied to my examples. But, now I’m really beginning to question whether or not we’re all chasing our tails on the natural born citizenship (nbc) eligibility issue. Nonetheless, some considerations/questions for everyone’: 1) John Jay’s 1787 ltr to Washington specifically warning against any but an nbc assuming the presidency seems to have directly led to nbc being specifically included in the Pres. Clause and no where else, thus, presumably, the Framers’ clear intent to make a distinction between nbc and us citizen for purposes of the Presidency; 2) E. Vattel’s Law of Nations in which there is citizenship by law of nature (inheritance from father) and by statute, and his accent on inheritance of citizenship from the father as being pivotally weighty; 3) Rep. Bingham’s assertion,which seems to draw a distinction as well, by his stating that “every human being born within the jurisdiction of the US of parents not owing allegiance to any foreign sovereignty is a nbc”. Didn’t just say us citizen; 4) State Dept. Foreign Affairs Manual’s statement that seems to make a citizenship status distinction with this: “the fact that someone is a nbc pursuant to a statute [by law as opposed to natural law, presumably] does not necessarily imply that he or she is such a citizen for Constitutional purposes”, presumably meaning the Prez. Clause since that’s the only other place I know nbc appears. Everything I’ve read seems to underscore the nearly overriding importance of the father’s citizenship and that being “born of” a father of dual allegiance/citizenship renders him ineligible for Prez. I really think a distinction was deliberately drawn by Framers for the purpose of Art II, Sec 1, but for no other purpose. Where am I going wrong. Am SOOOOO boggled!
by Jim Delaney on Dec 18, 2008 at 10:36 am
Dear P.A. Madison,
Could you indicate the reference (source) for the Rep. John A. Bingham quote shown below?
Rep. John A. Bingham:
“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.”Â
Thank you.
by Jane on Dec 18, 2008 at 4:44 pm
Here are the USA laws from State Dept as regards Dual Nationality.
Once a US citizen (either by birth or naturalization), one can never lose it execept by them officially renouncing it.
So all the stuff about Obama losing citizenship in Indonesia is just hot-wind-air theories.
We need to stick to basic premises. NBC and BC so far.
The rest are distractions!!!
by Mr. Biggie on Dec 18, 2008 at 4:54 pm
In Reply to P.A. Madison: Thank you for your quick response. I would like to write to my Congressional representatives. This explanation of the meaning of a “natural born citizen” by Rep. Bingham is very clear.
by Jane on Dec 18, 2008 at 8:40 pm
For Mr. Madison/Publius:
Would sincerely appreciate your learned opinions re my#1016 entry.
With respect to Prez Clause, and irrespective of my political leanings, I am still very much disposed to believing that the natural born citizenship vs us citizenship distinction was purposeful on the part of the Framers.
Also, and side from Rep. Bingham’s statement with respect to natural born citizenship, is the distinction clearly made anywhere else in the 14th Amendment in any way which would clearly/reasonably negate its meaning within the context of the Prez Clause?
Thanks!
by Jim Delaney on Dec 19, 2008 at 10:20 am
Whom ever P.A. Madison is, he is a dimwit for not documenting his sources, just as most of the single digit IQ holders are at the federalist blog.
by the truth on Dec 20, 2008 at 1:48 pm
As I recall, Rep. Bingham’s comment was part of the debate leading to drafting and passage of the 14th Amendment, which was than adopted by the states. However, a fundamental rule of statutory construction is that legislative history is only relevant to interpretation when the language of the law is not clear. I do not think that the first sentence of the 14th Amendment is unclear on the issue of citizenship, and it does seem to contradict Rep. Bingham’s point on the natural citizen issue, since it confers citizenship on every person born within the US and subject to its jurisdiction, without regard to the citizenship of the parents. It is also important to keep in mind that one fundamental purpose of the 14th Amendment was to guaranty citizenship to freedmen who had been born in the US, but whose parents were not citizens by virtue of their status as enslaved persons, and that may have been the focus of Rep. Bingham’s comment, rather than the children of resident aliens. However, subsequent statutory construction (by the Supreme Court) follows the plain language of the amendment.
Of course, the question here is whether or not this also amended the “natural born citizen clause, and you already know my perspective on that from previous comments on this forum.
by Mike on Dec 20, 2008 at 2:38 pm
In Reply to Mike: You have any evidence to prove anyone within the United States was ever considered “subject to the jurisdiction” of the United States prior to 1898?
I live within the jurisdiction of several courts but I have never been a subject of their jurisdiction.
The citizenship clause is no different from Sec. 1992 of U.S. Revised Statutes that was enacted the same year: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”Â
I believe the the above law remained the law all the way up until 1965 and was wholly ignored which was a national tragedy
In Reply to the truth: Madison has documented his sources in other works. If you are looking for well documented sources you should try research or hire Mr. Madison to prepare you a well documented historical analysis.
by JimAZtec on Dec 20, 2008 at 3:56 pm
In Reply to the truth:
P.A. Madison and others at Federalistblog.us certainly do not have single-digit IQ’s.
by Hugh on Dec 20, 2008 at 3:59 pm
For Publius
I know you may be repeating yourself in doing so, but would sincerely appreciate your commenting on #1016 and #1022. Given the range of honest dissent on this subject, and what appears to be a fairly loose interpretation of natural born citizen on the part of many participants here, am beginning to believe that many here would readily accept anyone’s eligibility to run for Prez so long as he can claim us citizenship by whatever means. And, frankly, that is a bit unnerving for me. Thanks very much.
by Jim Delaney on Dec 21, 2008 at 9:35 am
In Reply to Jim Delaney:
You are not going wrong at all. But you are clearly responding in a natural and honest fashion to questions raised.
I sense that you are also perplexed at the apparent absence of honest, straightforward, and satisfying/satisfactory answers to these questions. Your confusion is all the more justified based on the fact that those who you might expect to be knowledgeable about the circumstances we are discussing, and whose opinions, if presented publicly, would presumably carry much weight (e.g., legal luminaries, high public officials, etc.), have, more or less to a person, been stone cold silent on this issue.
Ordinarily, this is a signal that justifies a conclusion that the issue in question is not really an issue, but rather, amounts to nothing but misguided ramblings on the part of people who should find something better to do with their time. But there are some ‘twists’ to the current circumstances which ought to give thoughtful, intelligent people with no particular political axe to grind pause to consider whether a different conclusion is justified.
The most relevant and compelling sources of law (notably, the relevant legal treatises penned during the colonial period by de Vattel and von Bar, respectively) appear to demonstrate that what our framers intended when they inserted the term “natural born citizen” into the Article II, Section 1 presidential eligibility clause (PEC), and what the ratifiers of the original Constitition (together with the first ten Amendments) understood when presented with the final document, is that the office of POTUS was unavailable to any otherwise qualified individual who cannot also show that he or she was both: 1) born on U.S. soil, and 2) born to a mother who, as of the moment the individual in question is born, was either: a) married to a U.S. citizen, or b) an unmarried U.S. citizen.
Mr. McCain was born in a Panamanian hospital in Colon, Panama. Mr. Obama was born to a father who was a foreign national (a citizen of Kenya). Since Mr. McCain was not born on U.S. soil, he presumably fails prong (1) of the above test. Since Mr. Obama was born to a mother who, though married at the time he was born, was not married to a U.S. citizen, he presumably fails prong (2) of the above test. As a result, prior to November 4th, we were left in the unusual (to say the least) situation in the current national election cycle in which neither of the major party candidates was likely constitutionally eligible to assume the office of POTUS. If neither of these candidates was POTUS-eligible to begin with, neither the results of the November 4th national election, nor the fact of the December 15th Electoral College vote, can be be considered to have solved the problem. Neither will an inauguration on January 20th bring relief: The stringent requirements of the presidential eligibility clause apply equally to sitting presidents and presidential candidates alike.
To add insult to injury, only this month did we learn that Chester A. Arthur (who became our twenty-first president in 1881 upon the assassination of the previous President, James Garfield), was born to a non-citizen father. For those who are only now realizing this, CAA’s father, William Arthur, was still a British subject at the time of CAA’s birth in 1829. Naturalization records from Washington County, New York show that he did not become a U.S. citizen until 1843. As a result, the legitimacy of CAA’s presidency from 1881-1885 (including any and all U.S. laws that became law under his signature) will now be drawn into question.
As one astute observer has recently observed, it doesn’t matter how much glory a stadium full of fans heaps on the slugger who hits the game-winning, walk-off grand slam. If you fail to touch first base on on your leisurely trot around the bases, and the pitcher chooses to toss the ball to the first basemen, who then steps on the bag, you will be called out. No questions asked. Or as the SCOTUS saying goes, “though the heavens may fall…”
If ever silence on the part of legal luminaries or high public officials in the United States could be regarded as something less than golden, the time would appear to be now (prior to January 20th). Is it too much to ask for at least one person meeting this description to weigh in on this issue?
For any one of the above-categorized persons, it may indeed be too much to ask. The notion of speaking up now, in the absence of a compelling personal reason for doing so, could seem like a career-threatening move of the highest order for folks in high places. To be heard publicly to suggest that the current theory (i.e., that Mr. Obama’s lack of a U.S. citizen father may render him ineligible for the office of POTUS) may actually hold water is to invite public inquiry as to what one’s ultimate personal opinion is on the matter. To withhold one’s personal opinion after raising the issue is to demonstrate a lack of intellectual courage. This is a label nobody in public life wishes to wear if they can avoid it.
I seems rather more likely that most, if not all individuals in positions of public trust or authority that have seriously considered this question (whether Mr. Obama’s lack of a U.S. citizen father renders him ineligible for the office of POTUS) have concluded that silence in the first instance is the best strategy. In other words, if a Mutually Assured Destruction policy was in effect as between the two major parties during the runup to the November 4th national election, it appears to have given way to a strict regime of Don’t ask, Don’t tell.
by Matt L. on Dec 23, 2008 at 7:12 am
In Reply to Matt L.: Don’t know where you came from, Matt; but, thanks very much for stepping up on this. It was helpful. And you write VERY clearly as well.
Mainly to clarify the issue for myself, on my nascent blog, Opinerlog, and relying a good deal on this blog and its commentary, I tried to summarize the issue. Not sure iI did it justice, but I tried.
I have also been discussing this issue with some friends who are either unfazed, perplexed, burdened with the belief that all is lost anyway so why bother, those who are fearful of the consequences in the streets should the issue be seriously raised, and those who think early dementia is setting in on my part.
Well, I’ll admit to the possible dementia, but I won’t admit that so many bright, stable guys, as yourself, are nincompoops, blindly partisan hacks or deeply troubled conspiratorial theorists either. It’s a burning issue which deserves the full light of day, come what may.
I wish some one–or more–of the luminaries about whom you speak would but muster the courage to bring this up publicly. But, frankly, I honestly believe political courage is a rare commodity anymore. In truth, I think it’s dead, symptomatic of a declining America. So very tragic.
Also, given his baggage, I don’t think Berg helped the cause at all. We need some stellar Americans whose character and history are impeccable.
Truthfully, for the first time I genuinely fear for the security of American values and traditions. In the malaise in which our country now finds itself, the Constitution no longer appears sacrosanct, and oaths to uphold it have become empty the-means-justifies-the-ends words. Power alone is their God. And I see it day in and day out on the news and C-Span channels. My stomach is in knots watching our political leadership double-speak and obfuscate. Sickening.
I, for one, have written my congressional “reps” and asked them to openly question the constitutional eligibility of Obama to assume the Presidency on January 20th. I believe that if one Senator and one Rep step up, the issue can be dealt with head-on before inauguration. But, again, I just don’t see that level of courage present in those once venerable halls of Congress.
In one’s headlong pursuit of power these days, it seems now that nothing is sacred. Nothing is off-limits. Unfortunately, that cynicism is rampant on both sides of the aisle. So, where do little guys like me turn? What recourse do we really have?
Sorry for rambling. And, thanks again.
by Jim Delaney on Dec 23, 2008 at 8:54 am
In Reply to Mike:
The very term “natural born citizen” is right there in print (albeit in French) in de Vattel’s treatise published in 1758, and in subsequent English language editions of the work, all very well thumbed by the framers. Vattel was Swiss, so his overall philosophy was informed by continental Europe’s tradition of civil law. However, a key characteristic allowing him to net such a wide and distinguished audience in the American colonies may have been his clear antagonism to Britain’s tradition of common law.
The framers and ratifiers of the Constitution knew first hand what it meant to be forced to eat the then-rotten fruit of the British common law when it came to the way in which the Colonies were governed. As a result, anyone who believes that the Article II, Section 1 term “natural born citizen” was derived from, or directly related to, the British term “natural born subject” rightly faces an enormous hurdle when it comes to proving their case. Far from embracing it, the framers were desperately trying to make a clean break with the British example.
If the arguments set forth in Mr. Madison’s article and the following comments have merit, the following appears to be true:
1) The first child born in the United States after the ratification of the U.S. Constitution in 1787 to a married U.S. citizen father (de Vattel) or, if applicable, to an unmarried U.S. citizen mother (von Bar) was our first “natural born citizen”Â. Because of the minimum age requirement, it was not until 35 years later that anyone in this class of citizen would be constitutionaly eligible to run for president.
2) In 1789, the office of POTUS was available to an individual who was at least 35 years old, was a citizen of a U.S. state at the moment the U.S. Constitution was ratified, and had resided in a U.S. state for at least the past 14 years (i.e., from the beginning of the Revolutionary war in 1775 onward). For later presidential candidates, the “start date” of the residency requirement marched forward in time (1779, 1783, 1787, etc.).
3) With the death of the last U.S. citizen born before the moment the U.S. constitution was ratified (let’s say, 1890) the pool of potential POTUS candidates was finally purged of potential “grandfather clause” candidates so as to only contain those who were born in the United States to married U.S. fathers or unmarried U.S. mothers.
If those who take issue with Mr. Madison’s position are to be taken seriously, this is where the break occurs. They claim that the 1898 SCOTUS decision in U.S. v. Wong Kim Ark decision worked an important change to the originally-understood meaning of the Article II, section 1 term “natural born citizen”Â.
While this notion is not necessarily intellectually bankrupt, it suffers from the fact that, as of yet, it does not bear the imprimatur of the U.S. Supreme Court. In other words, there is actually no precedent in terms of on-point decisional law from the Supreme Court to support this notion, however true it may ring in the ears of certain interested parties today.
Turning to the particular circumstances of Mr. Wong Kim Ark, he was born to parents who, though permanent residents of the U.S. when he was born, nevertheless remained subjects of the Emporer of China. In its decision in U.S. v. Wong Kim Ark, SCOTUS clearly articulated a broader scope of the 14th Amendment than had previously been recognized. In doing so, SCOTUS considered it important that Mr. Ark’s parents had demonstrated a clear attachment to the United States. In specifically recognizing Mr. Wong Kim Ark as a U.S. citizen under the 14th Amendment, SCOTUS laid down the general rule that any individual (other than children of foreign rulers and diplomats) born on U.S. soil to permanent resident alien parents is a “born” citizen of the United States pursuant to the 14th Amendment.
Not satisfied with mere citizenship privileges for such individuals based on SCOTUS’s construction of the 14th Amendment, Mr. Madison’s interlocutors now claim that this newly-recognized class of U.S. citizens must also be recognized as Article II, Section 1 “natural born citizens”, fully eligible to run for and assume the office of POTUS. But in order for SCOTUS to endorse such a theory, it will need to do so in a legitimate fashion, in a decision based on the results of an actual case or controversy brought before it, and taking into account all of the circumstances that gave rise to their positive citizenship decision for Mr. Wong Kim Ark, and not just some of them.
That is, if SCOTUS is to be called upon to loosen up the parental citizenship requirement on the one hand (so as to allow at least some individuals born to one or more non-citizen parents to assume the office of POTUS), it will need to hold these new members of the “natural born citizen” class to the special requirement that they be born to two permanent resident parents. Needless to say, and unfortunately for Mr. Obama, this is a result that does not necessarily accommodate individuals born to foreign fathers present in the United States on temporary student visas.
Mr. Madison’s detractors should carefully consider Chief Justice Fuller’s dissenting opinion in U.S. v. Wong Kim Ark. In it, Chief Justice Fuller firmly objected to the notion, seemingly raised (but not truly pursued) by the author of SCOTUS’s majority opinion in that case (Justice Horace Gray), that the only thing “natural born” ever meant in the first place was that the individual in question was born on U.S. soil: “[I]t is unreasonable to conclude that ‘natural born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.”
Note that Justice Fuller is not agitating in favor of recognizing foreign-born U.S. citizens as eligible to the presidency. Far from it. Rather, he is attempting to illustrating the absurdity of interpreting the 14th Amendment to mean that children born on U.S. soil to two non-citizen resident alien parents are POTUS-eligible in light of what he clearly considers to be an established, irrefutable fact: That children born overseas to two U.S. citizen parents (read: Mr. McCain) are POTUS-ineligible.
by Matt L. on Dec 23, 2008 at 9:14 am
WOW, Berg v Obama is Scheduled TWICE for SCOTUS Conference on Jan 16. What the heck???
There has got to be more than meets the eye behind closed doors for this issue to keep being scheduled.
by Big Ben on Dec 23, 2008 at 3:31 pm
The case of Perkins v. ELG, 307 U.S. 325 (1939) weaves a rather clear cut definition of what a naturalized citizen is and a citizen born who can run for POTUS office is. However it muddy’s up the terminology slightly with the terms Native & Natural.
The case is rather large, but here’s a part of it and the final court opinion:
http://www.theobamafile.com/PerkinsVELG.doc
IMO, given the weight of evidence it’s pretty clear cut what the Founders meant with the NBC wording. However due to the existing amount & weight of anti-racism & anti-sexism SC judgments & opinions. The SC would rather allow a non-NBC to attain the position of POTUS rather than actually be exercise their authority.
by Frank Lake on Dec 24, 2008 at 11:15 pm
If Mr. McCain’s attorneys are correct, the SCOTUS will not consider any case until Congress certifies on Jan 8. What is the procedure to file suit on or after Jan 8?
Who would one sue and for what?
Thanks a million!
McCain’s reply Hollander v. McCain: http://electionlawblog.org/archives/Hollander-M2DisFAC.pdf
by Kris on Dec 25, 2008 at 5:22 pm
In Reply to Kris:
For the SCOTUS not to hear it makes ‘some’ sense as their is a constitutional provision covering the party’s responsibility for vetting their person (though it’s clear that the States can do vetting on their own, which frankly has lead to this to begin with).
McCain’s attorneys reached VERY hard to make it seem like he was an NBC didn’t they! However no one can make someone NBC after the fact. It would take a Constitutional change to make it happen.
http://www.scribd.com/doc/9258498/Why-Sen-John-McCain-Cannot-Be-President
I disagree with the Professors final point though as ‘fairness’ is a very transient thing with protection of the Nation coming first. Which is why Lincoln was so torn over what he had to do.
by Frank Lake on Dec 26, 2008 at 3:26 pm
After reading the linked portions of the decision in the Elg Case, I am even more convinced than before that Sen. Obama is a “natural born citizen,” as that term is used in the US Constitution. In Elg, CJ Hughes cites many of the earlier decisions already discussed in the comments to this article. I also think that Prof. Chin’s article glosses over an important point in Sen. McCain’s case, which is that under US law, the child of US citizens was always considered to be a US citizen from birth. I think that there may well be a related category of “Constitutional citizenship” which is inherent, and Congress would have only limited power to restrict this category of citizenship. Instead, I would describe the statutes cited in Prof. Chin’s article as either clarifying the issue when it was otherwise unclear, or as expanding citizenship to persons who would otherwise not be citizens.
I thought the legal brief filed in the Hollander case also raised a nuimber of issues relating to jurisdictional and juridical issues not previously addressed, all of which appear to support the eligibility of both Sen. McCain and Sen. Obama to serve as our president.
by Mike on Dec 27, 2008 at 12:38 pm
In Reply to Mike:
ELG v. PERKINS is a different subject matter based on a totally different issue. The Secretary of Labor and the Commissioner of Immigration had the correct view of law in the case in that Ms. Elg was not a citizen of the U.S. and should had been deported. Any case that draws conclusions from the clearly proven incorrect judgment in Wong Kim Ark is always going to be suspect and void of facts.
by JimAZtec on Dec 27, 2008 at 1:21 pm
In Reply to JimAZtec:
I agree somewhat….
But it’s not a different subject matter, but an aspect of a larger whole. That being citizenship. And the opinion did not firmly set upon the Wong Kim Ark opinion (though clearly further confusing the issue with it’s mixed usage of Native & Natural), but on multiple other cases and laws (Steinkauler’s Case, 1875)(Moore’s International Law Dig.)(etc.) as well.
It’s fairly easy to see that this case was one of several that confused the citizenship issue.
Because of Natural Born Citizenship being “assumed” by the court, but I believe this was partially influenced by the older legacy laws of a man giving citizenship to his wife as well. This umbrellaed the children in NBC-hood “correctly” when that ‘law’ existed, however it was incorrectly held-over, or assumed, thus causing the mess today.
De Vattel’s book makes the issue clear without the sexism (currently) involved.
by Anonymous on Dec 28, 2008 at 10:44 pm
Jim AZtec said:
“ELG v. PERKINS is a different subject matter based on a totally different issue. The Secretary of Labor and the Commissioner of Immigration had the correct view of law in the case in that Ms. Elg was not a citizen of the U.S. and should had [sic] been deported. Any case that draws conclusions from the clearly proven incorrect judgment in Wong Kim Ark is always going to be suspect and void of facts.”
Let’s see, we have a history of US Supreme Court decisions dating back over 100 years interpreting the 14th amendment language in an inclusive sense, and uniformly holding that persons born in the US are citizens. Does anyone want to remind Mr. AZtec that the law is formed by a process of drawing inferences from similar cases over the years. And that the Supreme Court has uniformly upheld the Wong decision over the long period of time since it was decided.
Mr. AZtec is eager to state his disagreement with this long line of decisions, but fails to state any basis in law or fact – other than his disagreement with the outcome – for his opinion. OK, we know where you stand. But it would be helpful to state some basis from law, fact or statutory language to persuade us that this is based on something other than personal prejudice.
Now, looking at the decisions, what do we know? The Wong Kim Ark case tells us that a person born in the US is a US citizen, whether or not his parents were US citizens. After that, the Elg case, in which the Supreme Court held that Ms. Elg, who was born in the US and was the daughter of naturalized US citizens, was also a citizen – seems rudimentary, which might well explain the lower court decisions in the case, which uniformly upheld Ms. Elg’s citizenship claims. The upshot of this long line of citizenship cases make the chances extremely remote that the Supreme Court would attempt to block Sen. Obama from becoming president on the basis of his status as a US citizen, because under this long line of precedents, he IS a natural born citizen.
by Mike on Dec 30, 2008 at 7:14 am
In Reply to Mike:
We really do not know if Obama is born in the United States since we have not seen his vault copy birth certificate. The COLB from Hawaii is not adequate. The crux of the matter is that Obama is most likely born in Kenya with a foreign father, and later adopted by an Indonesian father.
Whether SCOTUS act on any of the lawsuits Obama is simply not a natural born citizen.
by Hugh on Dec 30, 2008 at 8:24 am
In Reply to Mike:
I was not aware of this “long line of decisions” over the meaning of “subject to the jurisdiction thereof.” I was under the impression the Supreme Court had never addressed its meaning. Wong Kim Ark majority never addressed the issue for obvious reasons
Would had been nice if Wong Kim Ark was based on American law and not England’s.
by JimAZtec on Dec 30, 2008 at 3:49 pm
Some misc. items I found researching that is interesting:
Laws of Mexico [1895]
Article 1.ӠThe following are Mexicans:
I. Those born in the national territory, of a father who is a Mexican by birth or naturalization.
II. Those born in the national territory, of a Mexican mother and of a father who is not legally known under the laws of the Republic. Those born of unknown parents, or of parents of unknown nationality, shall be classed under this head.
Article 2.ӠThe following are aliens:
I. Those born outside of the national territory who are subjects of foreign governments, and who have not been naturalized in Mexico.
II. The children of an alien father, or of an alien mother and unknown father, born in the national territory, until they reach the age at which, according to the law of the nationality of the father or of the mother, as the case may be, they become of age. At the expiration of the year following that age they shall be regarded as Mexicans, unless they declare before the civil authorities of the place where they reside that they follow the citizenship of their parents.
(Geez, can it get any simpler then this?)
LAW AND PROCEDURE VOLUME VII (1903)
WILLIAM MACK And HOWARD P. NASH
THE AMERICAN LAW BOOK COMPANY
3. Children Of ALIENS. The child of a citizen father and of an alien mother is a citizen; but one born of an alien father and of a citizen mother is not a citizen.
This appears to be the international view of Obama’s citizenship:
Article 2. An illegitimate child which, during its minority, is acknowledged by its father only, or simultaneously by its father and its mother, or whose parentage is settled by the same judgment with regard to both, follows the nationality of its father on the day of its birth; if it has been acknowledged only by its mother, it takes the nationality of the latter, and retains it even when its father recognizes it later. (RESOLUTIONS OF THE INSTITUTE OF INTERNATIONAL LAW (1916))
by JimAZtec on Dec 31, 2008 at 3:37 am
In Reply to Mike:
Wong Kim Ark does NOT conclude that Ark is a Natural Born citizen. It beats around the bush taking about NBC, but in the conclusion states that she is merely a “citizen”, not a Natural Born Citizen.
Elg v. Perkins, on the otherhand, upholds that Elg is a “Natural Born Citizen” due to her parents being Naturalized citizens at the time of her birth in Brooklyn. It also affirms an earlier case of Mr. Steinkauler, who by virtue of his parents naturalized status at the time of his birth, was a “Native born Citizen”. In the example of Bohn though, because his parents weren’t citizens, he was said to be an “American citizen”. There is a clear differentiation.
by Mikey on Dec 31, 2008 at 5:17 am
FWIW: Judge Morrow in the case of Wong Kim Ark in the United States District Court for the Northern District of California (1896) said:
Counsel for the United States have argued with considerable force against the common-law rule and its recognition, as being illogical and likely to lead to perplexing, and perhaps serious, international conflicts, if followed in all cases. … The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in declaring it to be the law against controlling judicial authority.
by JimAZtec on Jan 2, 2009 at 4:15 am
Interesting quote from Madison’s “What subject to the jurisdiction thereof really means”:
Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, added on March 1, 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except … children born on our soil to temporary sojourners or representatives of foreign Governments.”
by JimAZtec on Jan 2, 2009 at 5:18 am
Open Audio Letter to Congress
My presentation to Congressman Tom Cole with the audio from a vietnam vet from Arizona.
He’s one heck of a Patriot.
http://www.youtube.com/watch?v=kjhkHTcU2ug
by PN on Jan 3, 2009 at 10:41 am
In Reply to JimAZtec:
AFTER ALL IS SAID AND DONE IT BOILS DOWN TO THIS
There are no misunderstandings here. Sufficient accurate facts and information have come forward that establish beyond a shadow of a doubt that BARRY SOTOERO, AKA BARACK HUSSEIN MOHAMMED OBAMA IS NOT ELIGIBLE TO BE US PRESIDENT. He is not eligible under the USA Constitution, Article II sec.–. Because he does not meet the qualifications of NATURAL BORN CITIZEN.
BARRY SOTOERO IS ABOUT TO BECOME A USURPER
IT APPEARS THERE IS NOT ONE PERSON IN OUR GOVERNMENT WITH THE INTEGRITY TO STOP HIM. OH, SHAME, SHAME, SHAME, PISPER SHAME!
It is no longer a question whether or not Mr. Sotoero is qualified. No matter which way liars try to convolute or twist the facts, it still boils down to: BARRY SOTOERO IS NOT ELIGIBLE TO BE PREIDENT. HE IS A USURPER. HE IS ALSO AN ILLEGAL ALIEN. THE ENTIRE WORLD KNOWS THESE FACT.BARRY IS DOES NOT LEGALLY QUALIFY TO BE PRESIDENT. So does the collection of conspirators who are insisting Sotoero be inaugurated know Barry is not eligible.
The only real question is will what is left of the government that has the authority to stop this treason against America have the courage to do what it right? It is the choice of the departments of the government who have this authority to either uphold and defend the US Constitution as it is written or betray the people of American by failing to protect the national security of America and permit a USURPER TO STEAL THE AMERICAN GOVERNMENT.
Will they, (Congress, Senate, Supreme Court, President Bush, and the military) do right by American? Will they do what they should do. What they should do and the only thing they should is save American and forbid Sotoero to take the oath, arrest and put in him jail without bail. Then after a hearing deport him to whatever country his is a citizen. Will these alleged pillars of government look the other way, consciously violate the US Constitution by allowing a traitor to become a usurper? Will they betray their oath to uphold and protect the Constitution, America, and the American people?
This and only this is the question every patriot American is hanging by its nails between now and January 20m 2009. While Sotoero supporter are using the promise of major riots in the street if the do not follow the “will or the people”Â, American will face the reality of a greater crisis”â€A REVOLUTION.
So which will it be”â€Uphold and protect the Constitution or rape and violate it; Permit a Usurper in the White House or arrest and throw the bum our; Riots in the streets or an all our revolution?
USA patriots-shout
http://www.blogtalkradio.com/vos
by Therese Daniels on Jan 4, 2009 at 2:42 pm
“A child born to an American mother and alien father could be said to be a citizen of the United States by some affirmative act of law but never entitled to be a natural-born citizen because through laws of nature the child inherits the condition of their father.”
That’s fine, except the United States of America is not governed by or through the “laws of nature” and if you think that the “laws of nature” justification would survive strict or intermediate scrutiny, you’re nuts.
by Jeff, Esq. on Jan 5, 2009 at 3:17 pm
Jeff, Esq. says “the United States of America is not governed by or through the “laws of nature” and if you think that the ‘laws of nature’ justification would survive strict or intermediate scrutiny, you’re nuts.”
That’s right, lawyers and liberals desire us to be governed through the edicts of 5 clerics dressed in black robes, not written laws or enactments by the people themselves.
Sen. Jacob M. Howard: “every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.”
In Congress, July 4, 1776:
“When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”
John Adams: “[N]o doubt, that terrible and critical moment when the Colonies of North America, groaning under the intolerable weight of the chains with which the boundless ambition of Great Britain had loaded them, were forced into a just and lawful war to recover the use and enjoyment of that liberty to which they were entitled by the sacred and unalienable laws of nature.”
by JimAZtec on Jan 5, 2009 at 8:55 pm
In Reply to Therese Daniels: Quite unfortunately, Ms. Daniels, the Constitution WILL be raped and pillaged with, once again, relative impunity. I fear for my country, as should all Americans, whether they be of the liberal or conservative persuasion.
“All tyranny needs to gain a foothold is for people of good conscience to remain silent.” Thomas Jefferson.
Let’s pray–and prod–our “representatives” and our courts to rigorously and selflessly uphold the Constitution.
Perhaps Jefferson was also prescient when he said ” Every generation needs a new revolution.” Are we yet at that point?
by Jim Delaney on Jan 6, 2009 at 9:05 am
In Reply to Jeff, Esq.:
Our forefathers used the Law of Nations to help frame our Country.
Jusitce Scalia used it earlier this year in an opinion on right to bear arms.
by PN on Jan 7, 2009 at 8:12 pm
And here we are again…
My, my, January 20 is literally around the corner, and one can only wonder if the Supreme Court might deign to get involved after that date.
Anyone have any brilliant ideas of what to do at this point?
by tanarg on Jan 8, 2009 at 9:50 am
Publius wrote: “Certainly, the fact of dual citizenship at birth should not be the sum and substance of any indictment of a candidate for POTUS. Strictly speaking, the Constitution includes no positive language that specifically provides that dual citizens are automatically disqualified.”
—-
Except to the degree that “natural born” was something they could never be because of their prior loyalty to the King. Thus, the framers were referencing an “alien influence,” though no longer in existence, that meant they, though born here, were not able to run for president without the grandfather clause.
by tanarg on Jan 8, 2009 at 10:16 am
I have lost all respect for SCOTUS. They should have addressed the meaning of Natural Born Citizen long ago. There is great danger in the lack of interpretation … Truly, now there is nothing stopping a child, born on US soil to two alien parents and subsequenly raised in a foreign country, from ultimately becoming POTUS. All the child must do is declare US citizenship when coming of age, and move to the United States. It is NATURAL that our true allegiance stems from our upbringing. Regardless of the geography of birth, a person raised in a foreign country cannot have the same conviction of allegiance to the United States, as someone raised in this country.
by caolila on Jan 9, 2009 at 12:03 am
In Reply to Matt L.:
This question is regarding your post #1033 on 12/23/2008
Like you, I have become unshakeably convinced that Vattel’s definition for ‘natural born citizen’ is what the founding fathers had in mind when they entered the term into the Constitution.
But I’m not familiar with the the origin of the further subdivision you listed regarding the mother’s marital status,
“2) born to a mother who, as of the moment the individual in question is born, was either: a) married to a U.S. citizen, or b) an unmarried U.S. citizen”,
when Vattel’s text merely says
“of parents who are citizens”.
After all, the child of unwed parents still has a father who is considered a parent and may be sued for child support, so it seems to me he should still be relevant to the child’s citizenship status.
Because if the allowance for an unwed mother is correct, it might provide the loophole that Obama seeks, in that at the time of Barack Obama Senior’s marriage to Stanley Ann Dunham in 1961, he was already married to a woman named Grace Kezia Obama back in Kenya with whom he had two children, and whom he never divorced; in fact, after completing his education in the U.S. he returned to Kenya and bore two more children with her. The marriage to Stanley Ann Dunham could therefore be rendered invalid on the basis of bigamy, meaning Barack Obama was therefore born on U.S. soil to a single unwed mother who was a U.S. citizen, thus meeting your test for a natural born citizen.
by Steve N. on Jan 9, 2009 at 7:21 am
Just found and read much of the Supreme Court’s decision in Wong Kim Ark (1898) 169 U.S. 649.
Here’s a link to the decision:
http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=169&page=649
Whew! The decision goes chapter and verse through the legal history supporting the rule of law prior to adoption of the 14th Amendment, that citizenship was determined by place of birth, except for children of diplomatic personnel or foreign occupiers of US soil, and that otherwise, children of aliens born on US soil were US citizens:
“In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: ‘All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.’ ‘We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.” Ibid, 169 U.S. 662-663 [cit. omitted.]
The Court also held that adoption of the 14th amendment did not restrict this rule:
“The first section of the fourteenth amendment of the constitution begins with the words, ‘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.’ As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Tae y in Scott v. Sandford (1857) 19 How. 393; and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States.” Ibid, 169 U.S. 675-676 [citations omitted.]
The Court also held that “natural-born” and “native-born” are synonomous.
Publius and many commenters on this thread and elsewhere may disagree with the holding, but the case is dispositive of Sen. Obama’s right to be president. Given the long history of this line of decisions, I believe that it is extremely unlikely that even the present activist court would overturn a 110 year old decision or try to overturn the election results.
by Mike on Jan 9, 2009 at 2:06 pm
In Reply to Mike:
With all due repect, although Justice Gray wrote alot about the Natural Born Citizen issue, he did not deem that Ark was a NBC, just “citizen”, and this case was not about the qualification to become POTUS.
“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 parents 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.”
In Perkins v. Elg SCOTUS gave specific examples of NBCs.
They even noted that Steinkauler, born of citizen parents, had the ability to be elected POTUS, while Bohn, born of alien parents, was deemed “American Citizen”, not NBC.
by Mikey on Jan 9, 2009 at 6:07 pm
Mike (#1074) said: “Whew! The decision goes chapter and verse through the legal history supporting the rule of law prior to adoption of the 14th Amendment, that citizenship was determined by place of birth, except for children of diplomatic personnel or foreign occupiers of US soil, and that otherwise, children of aliens born on US soil were US citizens”
Actually, the decision did no such thing. The cases singled out by the Wong Kim Ark court simply rehashed the English rule prior to the revolution. American judicial thinking rested on Lynch v. Clark and the courts were too stupid to appreciate the fact Lynch v. Clark was overturned by statue. The court was very clear in stating the only reason they were resorting to the common law was because New York had no law on the books in regards to babies born to aliens.
The fact the conclusion in Lynch v. Clark was overturned and an alien no longer could never again claim citizenship by simply being born in the state of New York just further proves how inept in law Horace Gray really was.
by JimAZtec on Jan 10, 2009 at 3:02 am
I have been following these cases at the SCOTUS relating to the natural born citizenship issue and Obama.
The pattern seems to be that initially the applications are denied by a “liberal leaning” Justice (so far Souter, Ginsberg, and Kennedy) and when resubmitted to a “conservative leaning” Justice (so far Thomas, Scilia, Roberts) they are referred to conference. In conference so far two have been denied (Donofrio and Wrotnowski), one has not been reported yet (Berg cert), and two are still scheduled for conference (Berg injunction and Lightfoot). I understand yet another one has just been denied (Broe) by Souter, and probably will be resubmitted to another Justice.
It takes the vote of four Justices in conference to accept the case for review, so obviously less than four, if any, are voting in conference to accept the cases.
So what is going on?
At first I thought there was a contest going on between the two wings of the court and that maybe the conservative wing (Thomas, Scilia, Roberts, and Alito) were case shopping to pick one where the other Justices could not justify ruling for Obama on a procedural technicality.
I, perhaps naively, thought that the conservative Justices referring the cases to conference actually thought they had merit, but it has now occurred to me that they are using the referral to conference as a means to trash can the cases since denial in conference cuts off any further resubmission.
Another possibility is that the conservative Justices believe that if they take the case that ultimately the vote will be 5/4 in favor of Obama being a natural born citizen, and that they do not want to take the heat for the consequences of the country having a President where 4 Supreme Court Justices voted that he was not Constitutionally qualified; the wussy cop out alternative.
I do not understand the significance of the Court taking a case before verses after Obama is sworn in, and if that is involved in their consideration. It did occur to me that once Obama is sworn in that if they then found him not qualified that Biden would become President, and that they might be waiting till then so that they could not be accused of playing politics; a Democrat would still be President.
It just seems strange that Roberts, who will be swearing in Obama, could ethically or legally go forward and participate in the “coronation” if he has concluded that Obama is disqualified, yet the case he referred to conference (Lightfoot) will not be in conference till Jan. 23, after Obama is sworn.
My best guess is that they are using referral to conference as a means to quash these cases and that they do not intend to actually address the issue in open Court.
Comments?
by Sid Davis on Jan 10, 2009 at 8:21 am
In Reply to Sid Davis:
SCOTUS will not address the issue in open court, period. The reason is simple: The liberal wing in no way want to have to defend Wong Kim Ark because it can’t be defended without ignoring the truth as did Justice Gray was forced to do. Plaintiff’s will point to the same arguments as Madison has and the court would be in the uncomfortable position of having to say all that does not matter! The common law of England still prevails throughout the country! They might even suggest the 39th Congress could not have meant subject to the jurisdiction to mean political jurisdiction.
And then there is the uncomfortable prospect McCain would have to be declared the victor, leaving the potential retiring justices being replaced with a conservative. Self-preservation, baby!
by Todd on Jan 11, 2009 at 6:29 am
In reply to Todd, he might want to keep in mind that a 5-4 vote in conference would be only a vote to hear the case, and NOT a vote on the merits. This could just as easily be attributed to a desire to reaffirm existing law as to rewrite decisional authority dating back to the first days of this country. And Todd might also remember that a decision that Obama is not a NBC would result either in the vice-president becoming president, or a new vote by the democrat-dominated electoral college. I think it is highly unlikely that Sen. McCain would be elected by that body, given its present makeup. However, it is possible that Sen. Clinton would become the first woman president.
On the issue Todd raised about the common law, I think that the point made in the Wong decision is that at the time of the revolution, the common law of the colonies and future states was the same as the common law of Great Britain. Thereafter, the two diverged in response to diverging judicial decisions. However, as you would see from a review of the Wong decision, there was a substantial inter-relationship between the two, which has lessened over time. One major difference is that the US has a written constitution. One part of that, the 14th amendment, directly contradicts the point JimAztec makes about the law of New York, although even the most casual review of the Wong decision would show him that it was not accurate, even before the 14th amendment was adopted.
by Mike on Jan 11, 2009 at 10:38 pm
In Reply to Mike:
No amount of lipstick you try to put on Wong Kim Ark, it is still a BIG lying Pig. You think Wong Kim Ark is so right and controlling, fine; let’s take the absurdity of Wong Kim Ark to the next level, shall we?
The majority said that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. In this as in other respects, it must be interpreted in the light of the common law.”
But wait, there are other exceptions other than children born to ambassadors or foreign ministers. Under common law children born of parents of mixed races the offspring follows the condition of the father!
So, under common law that J. Gray says is the common law of this country, and nothing has changed since Wong Kim Ark in the year 1898, Obama is not a citizen because he was born to a black father and a white mother. Under common law his citizenship is that of the father and would not be a natural born British subject no matter what.
This principle prevailed under many laws of the states and even the federal govt. But since the 14th amendment merely reaffirmed the common law under Wong Kim Ark (cough), Obama can not be a citizen of the United States.
Are you sure you want to continue treating Wong Kim Ark as controlling law?
by JimAZtec on Jan 12, 2009 at 5:39 am
On the common law issue raised in JimAztec’s latest post, I can hardly think that JimAztec is unaware that immigration law is the result of the accretion of legal decisions (e.g., common law), statutory law, and constitutional provisions and amendments. He has set up what is known in legal circles as a “straw man”, which is a hypothetical so extreme that it can easily be knocked down. I don’t think that any of us would question, even before his latest post, that JimAztec does not like any part of the Supreme Court’s decision in the Wong case. I hardly doubt he is alone in that. Nonetheless, it is one in a long line of decisions (both previous and subsequent) that defines the law in this important area, and like it or not, it is the law of the land until it is overruled. In the Elg Case, the Supreme Court said that US law determines US citizenship, and that fact that a second country might be capable of claiming Ms. Elg as a citizen did not defeat or terminate her status as a natural-born US citizen. The same reasoning would apply to Sen. Obama. And since Sen. Obama’s father was a British citizen at the time of Obama’s birth, the British could also have claimed him as a citizen.
His point on the “black man” issue has cultural overtones, even if the legal issue was forever laid to rest by adoption of the 13th Amendment. Although Sen. Obama’s mother was ‘white’, he is universally referred to as a black man, and almost never as “half-black.”
But I can hardly believe that it could be Sen. Obama’s race that has our friend in such a high dudgeon?
by Mike on Jan 12, 2009 at 1:48 pm
In Reply to Therese Daniels:
Just keep talking Therese. The more you open your mouth (or keyboard), the more comfortable I feel that we’ll have the right and duly elected president on Jan. 20th.
In case you didn’t guess, I am talking about President-elect Barack Obama.
by Jose Guzman on Jan 12, 2009 at 5:30 pm
Mike wrote: “In the Elg Case, the Supreme Court said that US law determines US citizenship, and that fact that a second country might be capable of claiming Ms. Elg as a citizen did not defeat or terminate her status as a natural-born US citizen.”
And the Wong Kim Ark court said England’s common law determines US citizenship: “In this as in other respects, it [14th amendment] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.”
As long as Wong Kim Ark stands, there is no possible way to define American law under American rules when it comes to birth citizenship because the court will always say the 14th amendment must be interpreted under England’s old common law! Garbage in, garbage out.
The Elg Case is really irrelevant to whatever point you are trying to make because Ms. Elg’s father was a naturalized US citizen at her birth.
by JimAZtec on Jan 12, 2009 at 6:49 pm
JimAztec said:
“As long as Wong Kim Ark stands, there is no possible way to define American law under American rules when it comes to birth citizenship because the court will always say the 14th amendment must be interpreted under England’s old common law!”
That’s simply not correct. In the Wong decision, the court relied not just on pre-Revolutionary English common law and statutory authority, but also on the US Constitution, US statutes, and over 100 years of American decisional authority to decide the case. That IS hardly “England’s old common law”, even in 1895 when the case was decided. The decision is a textbook Supreme Court constitutional decision, in order to interpret the text, the court does not cast about for some plausable interpretation of the text. Instead, it was necesary for the court to determine what the Constitutional text meant in 1787 when it was written, based on the legal meaning of the langauge at that time:
“In Minor v. Happersett, the [chief justice] said ‘The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.’ And he proceeded to resort to the common law as an aid in the construction of this provision.” 169 U.S. 655.
“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.” Id.
There is nothing new in this, and it has been the universal practice in US courts since the nation was founded; in order to decide what statutory or constitutional language means, a court must determine how the same language has been interpreted in the past. And because there was no American common law prior to the Revolution, it was necessary to look to the common law in the US prior to the Revolution, which was the common law of England.
The Court then reviews the history of the pre-Revolutionary common law, and states its rule in the following language:
“[B]y 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, and 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.
“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”. 169 U.S. 658.
The Court then reviews a number of Supreme Court cases in which the Court esteblished the American common law, and followed this interpretation of what the framers in 1787 meant by “a natural-born citizen of the United States.”
So what does this mean? It means that even if Sen. Obama had been born prior to adoption of the 14th Amendment, he would have been a ‘natural-born citizen’ and eligible to be president, even though his father was not a citizen at the time of his birth. And because his father was not enslaved, he would not have been excluded from citizenship under the decision in the Dred Scott case.
by Mike on Jan 13, 2009 at 7:42 am
In Reply to Mike:
Wrong. “Subject to the jurisdiction” meant the same in 1898 as it did in 1874 (in Elk v. Wilkins). It meant Sole Political Allegiance, and no allegiance to any other foreign power (ala the Civil Rights Act of 1866). The 14th A gave those born “within” the juridiction of the US the choice to be “subject to the jurisdiction of the US” at the age of consent, which is the holding of Ark. Ark is deemed a “Citizen” not NBC. If a person is born “subject to the jurisdiction of the US” (parents are citizens), then he/she is a NBC. If you are born of an alien father, then you are born “within the jurisdiction”, but not “subject to the jurisdiction” of the US, You are a Native citizen (Obama’s term, and why doesn’t he use the term Natural Born citizen?), not a NBC. As far as ex post facto, there is none. Natural Born citizen means just what it always meant. the 14th A gave birthright citizenship, not necessarily Natural Born Ctizenship.
by Anonymous on Jan 13, 2009 at 4:28 pm
Anonymous’s valiant attempt to distinguish away the holding in the 1895 Wong case (remembering that Chinese custom is ‘last name first’), on the basis of the 1884 decision in Elk v. Wilkins (112 U.S. 94) must fail for the reasons stated by the Court in the Wong decision. The distinction might ‘hold water’ if Obama had been a full-blooded Native American whose parents had been exempt from taxes and resided on Indian land “not subject to the jurisdiction of the United States’ at the time of his birth, as was the case with the plaintiff in Elk v. Wilkins. However, Sen. Obama was born in Hawaii, his father was NOT an Indian, the senator was not born on Indian land where US law did not apply, and he was not exempt from US taxes. Here’s how the Wong court distinguished the decision in Elk v. Wilkins:
“The only adjudication that has been made by this court upon the meaning of the clause, “and subject to the jurisdiction thereof,” in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U. S. 94, in which it was decided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of a State but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen either by the United States or by the State, was not a citizen of the United States, as a “person born in the United States and subject to the jurisdiction thereof” within the meaning of the clause in question.
“That decision was placed upon the grounds that the meaning of those words was “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;” that, by the Constitution, as originally established, “Indians not taxed” were excluded from the persons according to whose numbers representatives in Congress and direct taxes were apportioned among the several States, and Congress was empowered to regulate commerce not only “with foreign nations” and among the several States, but “with the Indian tribes;” that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will without the action or assent of the United States, and that they were never deemed citizens except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress; and therefore that
“Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more ‘born in the United States, and subject to the jurisdiction thereof’ within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.”
“And it was observed that the language used in defining citizenship in the first section of the Civil Rights Act of 1866, by the very Congress which framed the Fourteenth Amendment, was “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 194 U.S. 880-881, citing 112 U. S. 94, 99-103.
Plainly, the court in 1895 did not believe that the holding in Elk v. Wilkins had ANY relevance to the citizenship issue in US v. Wong Kim Ark. Further, it appears highly unlikely that the modern Court would think it has the slightest relevance to Sen. Obama, and neither should any of the rest of us.
Here’s a link to the Elk v. Wilkins decision:
http://supreme.justia.com/us/112/94/case.html#94
by Mike on Jan 14, 2009 at 3:34 am
In Reply to Mike:
Didn’t the court in Elk say about “subject to the jurisdiction thereof”: “The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other.”
Could Wong Kim Ark’s parents vote or even be called up for military duty? Nope! It’s no different in residing within the jurisdiction of a court vs. being a subject of a court’s jurisdiction. Wong Kim Ark was born within the jurisdiction of California but not born subject to the jurisdiction.
Obama was born subject to the jurisdiction of the U.K within the limits of Hawaii. If Obama as a minor and denied a lawyer for some crime the British govt. would have intervened on his behalf just as the US does for its own citizens abroad.
Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, added on March 1, 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except “¦ children born on our soil to temporary sojourners or representatives of foreign Governments.”Â
What is a “temporary sojourner”? It means a temporary resident. All chinese laborers and merchants were considered temporary residents because they were here to work or do business and were prevented by law and treaty from becoming citizens.
by JimAZtec on Jan 14, 2009 at 5:27 am
In Reply to Mike: People the issues is not birth certificate, dont be smoke screened by Obama. He is using the equal protection clause in the 14th admendment to get around what is the Constituional requirerment for president. Natural Born. Perhaps the goverment is that ignorant of the Constitution and now they just hope this doesnt’ blow back on them. Obama is born of a British citizen, and is born a citizen per the 14th. If there is no admendment to change natural born and there is not it is the law. That simple. and no one seems to get it. He is willing to unsurp our
Constitution for power and politics. God help us.
by geoffrey hamilton on Jan 14, 2009 at 8:53 am
I continue to find this information continue to be sorely lacking:
As given in § 1401. Nationals and citizens of United States at birth
The following shall be nationals and citizens of the United States at birth:
Conditions are clearly given.
1. Only one parent has to be a natural-born citizen of the United States of
America in order for a child to be a natural-born citizen.
2. Obama’s mother was born in Kansas to natural-born citizen parents (one
would have sufficed but there were two).
3. If one parent is a natural-born citizen, the child is also a natural-born
citizen, no matter where the child is born, even the planet Jupiter!
I have never seen any definitive proof that Obama’s mother was NOT a natural born citizen. None. Ever.
Until that is proven, he is a citizen.
Case closed.
And to those who claim he had dual citizenship:
A child inherits citizenship from the country of the mother’s natural born birth. If the father is a UK subject, it doesn’t matter, except the child may possibly be able to obtain both a UK passport and a US passport. But that changes nothing. The child inherits citizenship from the country of the mother’s natural born birth.
by DadBode on Jan 14, 2009 at 10:04 am
In Reply to DadBode: Agian the issue is not that he is not a citizen . Obama is a citizen by birth. Thats the 14th admendment. Article 2 section 1 is the requirerment for pres. Natural born born of two citizens born in this country. Natural born is not a law it is a natural act. You are because both your parents were. He is a citizen he is not N B he is unconstitutional. He knows it. His citizen ship is by law not by a natural act. the child always inhearets the fathers birthright. thats reconized law.
by geoffrey hamilton on Jan 14, 2009 at 11:54 am
So, to summarize the three most recent posts,
“No matter what more that two hundred years of US law says, and in spite of decisions of the US Supreme Court over the same period uniformly holding that a person born in the US is a citizen, what I say goes!”
This has turned into a more-or-less interesting religious discussion of what US law SHOULD be, but we are beating a dead horse here, and rearguing issues that were decided in 1895 by the US Supreme Court in US v. Wong Kim Ark.
All three posts overlook the fundamental holding in that case: A person born in the US is a US citizen, regardless of his mother’s citizenship, his father’s citizenship, and a host of other factors, unless his parents are foreign diplomats. And no matter what they “wish”, the meanings of the relevant terms were determined by the Supreme Court generations ago. JimAztec might want to keep in mind that resident aliens may join the military, and were subject to the draft until it was terminated after the Vietnam War.
by Mike on Jan 16, 2009 at 11:54 am
In Reply to Mike: Agian the issue is not citizenship. Obama was born a citizen, per the 14th admendment. Article 2 section 1 is what a president must be. born of two citizens born in this country. natural born. The founders were concerned about a leader with dual citizenship. Olny an admendment can chage that. there are none. It is not citizenship
by geoff hamilton on Jan 16, 2009 at 9:22 pm
geoff hamilton said:
“Agian [sic] the issue is not citizenship…. The founders were concerned about a leader with dual citizenship. Olny [sic] an admendment can chage [sic] that. there are none. It is not citizenship”
Unfortunately, the Supreme Court disagrees. They said there are two kinds of citizenship; naturalized and natural-born. If you aren’t one, then you’re the other. To put it another way;
“In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: “ËœAll 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.’ “ËœWe find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.’” United States v. Wong Kim Ark, 169 U.S. 649, 662-663 [cit. omitted.]
Although this is not central to the decision in Wong, and therefore may be “dictum”, it is consistent with US Supreme Court decisions dating back to the inception of the Nation. I’m not expecting any immediate changes…. So enjoy the festivities, unless you live in DC, in which case its time to batten down hatches for the duration.
by Mike on Jan 18, 2009 at 1:51 am
geoff hamilton said:
“Agian [sic] the issue is not citizenship…. The founders were concerned about a leader with dual citizenship. Olny [sic] an admendment can chage [sic] that. there are none. It is not citizenship”
Unfortunately, the Supreme Court disagrees. They said there are two kinds of citizenship; naturalized and natural-born. If you aren’t one, then you’re the other. To put it another way;
“In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: “ËœAll 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.’ “ËœWe find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.’” United States v. Wong Kim Ark, 169 U.S. 649, 662-663 [cit. omitted.]
Although this is not central to the decision in Wong, and therefore may be “dictum”, it is consistent with US Supreme Court decisions dating back to the inception of the Nation. I’m not expecting any immediate changes…. So enjoy the festivities, unless you live in DC, in which case its time to batten down hatches for the duration.
by Mike on Jan 18, 2009 at 1:51 am
Mike quotes Wong Kim Ark: “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.’ “ËœWe find no warrant for the opinion that this great principle of the common law has ever been changed in the United States.”
If this is REALLY true then Obama is not even a citizen because under the universal maxim of the common law children followed the condition of the father in cases of parents being of mixed races (partus sequitur patrem). The same thing had been upheld in this country see Ex parte Reynolds, Ludlam v. Ludlum to name a few.
Of course Justice Swayne was terribly mistaken because there was no such common law of this country because each state was independent and had their own laws that determined who were born citizens of the state. If Swayne was correct then every person born within the District of Columbia would been US citizens (they were not.)
by JimAZtec on Jan 18, 2009 at 8:12 am
In Reply to JimAZtec: Lets focus on admendment. Cons. is changed olny by admendment. There is an admendment in the congress waiting for the votes to move it. It would change NB in article 2. That tells me there is no Cons. change to artic. 2. It is the law. Pres must be NB, Obama is not. SCourt cant rule agianst or change article 2,nor can congress. Olny admendment. Why is NOBODY saying this except us tin hats.
by geoff hamilton on Jan 19, 2009 at 7:21 am
I apologize if this reply is disjointed, I have been skipping back and forth from watching the inauguration and related ceremonials while writing it. (And did anyone notice that the usually unflappable Chief Justice Roberts muffed the oath of office when he recited it for the incoming president? Glad to know he’s human, too.)
Back in the day, one of my teachers once said “The first rule of interpretation is read on.” I think that geoff and Jim might benefit from this observation.
Jim said: “If this is REALLY true then Obama is not even a citizen because under the universal maxim of the common law children followed the condition of the father in cases of parents being of mixed races (partus sequitur patrem).”
Well, actually, what the cited common law decisions (dating back to the 13th century) have uniformly held is that for those born in the country, citizenship follows place of birth.
Jim goes on to say; “Of course Justice Swayne was terribly mistaken because there was no such common law of this country because each state was independent and had their own laws that determined who were born citizens of the state.”
Actually, what the Supreme Court said about a national common law is; “There is, however, one clear exception to the statement that there is no national common law. 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.” 169 U.S. 655-656, citing Smith v. Alabama, 124 U.S. 478. Plainly, the Court believed that there IS a national common law used to interpret the US Constitution. Of course, that would include the citizenship clauses of Section 2 and the 14th Amendment.
geoff asks; “Pres must be NB, Obama is not. SCourt cant rule agianst or change article 2,nor can congress. Olny admendment. Why is NOBODY saying this except us tin hats[?]” and again questions President Obama’s status as NBC. Aside from not taking even a moment to proofread, he also refuses to acknowledge over two centuries of precedent, dating back to the 1804 decision in the wonderfully named maritime case Charming Betsy (2 Cranch. 64). In response to geoff’s question, some might reply that only the staunchest of flat-earth tin hats would hold firm to their individual perspective on the meaning of Constitutional language in the face of over 200 years of uniformly contrary decisions from the Supreme Court.
We should admire their firmness, while – perhaps – questioning their judgment.
by Mike on Jan 20, 2009 at 3:46 pm
In Reply to Mike: nb is not law it is a natural act. caselaw is about citizenship. founders intent is citizenship by a natural act not a law no one can question your allegence if it flows from your birth. i may be wrong but i do not find were sc has made a different definition from founders intent. sc can decide constitutionality but olny admendment can change it. why did senate pass resolution not law defining natural born as born of two citizen parents in april 2008. to me this a serious breech of the constitution.
by geoff on Jan 20, 2009 at 5:24 pm
Mike said: “Plainly, the Court believed that there IS a national common law used to interpret the US Constitution. Of course, that would include the citizenship clauses of Section 2 and the 14th Amendment.”
If that was REALLY true then all citizenship laws enacted by the states since 1790 would had been unconstitutional, duh! Congress shot down this ill-conceived opinion on July 27, 1868 (same congress who approved the 14th) with the Rights of American Citizens Act: “That any declaration, instruction, opinion, order, or decision of any officers of this government which denies, restricts, impairs, or questions the right of expatriation, is hereby declared inconsistent with the fundamental principles of this government.”
George Mason was right, the common law of England was not the common law of the United States.
You really should consider the accuracy of what you post, Mike.
by JimAZtec on Jan 21, 2009 at 3:20 am
geoff, you are correct that IF the senate were to pass such a resolution, it would have no effect as against the constitution. And note that a resolution is not a law, but only a “sense of the Senate.” In order to become law, it would need to be passed by both houses of Congress, and then signed by the president.
However, “Natural Born” IS most definately a matter of law, as can be seen from the differences of opinion between the majority and dissenting opinions in the Wong Kim Ark decision. The majority interpreted the Constitution in accord with common law principles, which are the principles of legal interpretation of this country dating back to its inception. The dissenters thought the matter should be decided in accordance with French law and the European notion of “Natural Law”, whatever that might mean. (I tend to believe that generally speaking, “natural law” is cited as an unchallengeable basis for what a proponent thinks is a good idea.) As we know, the dissenters didn’t have the votes to support their position.
JimAztec draws the wrong conclusion from my statement about a national common law. As we know, Congress has the right to make legislation about citizenship, and the law of citizenship is based on the common law AND statutory law, and the decisions interpreting it, based on common law principles, including stare decisis. This does not mean that all statutes regarding citizenship are unconstitutional, only those that contravene the US Constitution. So, for example, if a law was passed that provided that in order to meet the “natural born citizen” requirement of Section 2, it was necessary for one’s grandparents also to have been citizens. I think such a law would clearly be unconstitutional, because it contravenes the legal meaning of “natural born citizen” by imposing additional requirements. That is in sharp contrast with a law that might, for example, clarify the legal status of a person born in the Panama Canal Zone during the US mandate, or a law regulating naturalization. Either would clearly be constitutional.
As to George Mason, he was a distinguished member of the Constitutional Convention, and well known as an independent thinker. However, over time, many of his views have been rejected. We know from many souces, including Supreme Court decisions, that the US did have a common law at the time the Constitution was adopted. In the Wong Kim Ark decision, the Supreme Court majority stated that at the time the Constitution was adopted, the common law of the US in the area of citizenship was the same as the common law of England. If JimAztec does not believe this, perhaps he might provide us with authority to back up his perspective on the sources of the US common law in 1789, when the Constitution was adopted.
by Mike on Jan 21, 2009 at 6:22 am
Mike said: “As we know, Congress has the right to make legislation about citizenship, and the law of citizenship is based on the common law AND statutory law, and the decisions interpreting it, based on common law principles, including stare decisis.”
Congress did make legislation and was crystal clear in words and actions to what their legislation was adopted to accomplish. You and and morons like J. Gray desire to turn a blind eye to the obvious truth and reinterprete history to your liken.
Mike said: “As to George Mason, he was a distinguished member of the Constitutional Convention, and well known as an independent thinker. However, over time, many of his views have been rejected.”
Now I am fully convinced you are a moron.
Mike said: “In the Wong Kim Ark decision, the Supreme Court majority stated that at the time the Constitution was adopted, the common law of the US in the area of citizenship was the same as the common law of England.”
So, was a child born to aliens in VA, VT, GA born a citizen of the United States? NO? How can that be, you said SCOTUS said the common law of US citizenship was the same as the common law of England! Hey Mike, can you point us to some pre-1866 U.S. Statute that says anyone born in any state is a U.S. Citizen regardless of who their parents were? Come on, put up for once!
Mike said: “If JimAztec does not believe this, perhaps he might provide us with authority to back up his perspective on the sources of the US common law in 1789, when the Constitution was adopted.”
James Madison:
“A characteristic peculiarity of the Govt of the U. States is, that its powers consist of special grants taken from the general mass of power, whereas other Govt possess the general mass with special exceptions only. Such being the plan of the Constitution, it cannot well be supposed that the Body which framed it with so much deliberation, and with so manifest a purpose of specifying its objects, and defining its boundaries, would, if intending that the Common Law shd be a part of the national code, have omitted to express or distinctly indicate the intention; when so many far inferior provisions are so carefully inserted… As men our birthright was from a much higher source than the common or any other human law and of much greater extent than is imparted or admitted by the common law.
James Madison to George Washington:
“What could the Convention have done? If they had in general terms declared the Common law to be in force, they would have broken in upon the legal Code of every State in the most material points: they wd. have done more, they would have brought over from G.B. a thousand heterogeneous & anti-republican doctrines, and even the ecclesiastical Hierarchy itself, for that is a part of the Common law.”
I know, like a good little moron Mike is, he will say many of Madison’s “views have been rejected.” LOL
by JimAZtec on Jan 21, 2009 at 7:18 am
In Reply to Mike:
The jurisdictional phrase of the 14th Amendment as defined by Elk v. Wilkins was NOT only directed at Indians and diplomats, and your ingenuous logic is telling. The case was about an indian, the definition is the test used to make the decision, and the test is not only applicable to Indians.
The writers and deliberators of that Amendment were very clear, and much is written about the fact that the phrase meant Complete Allegiance and Sole Jurisdiction to the US and NO OTHER FOREIGN POWER. Of course those born or naturalized in the US were WITHIN the jurisdiction of US Law (BCL) if they were not an indian or diplomat’s child. They were only Subject to the jurisdiction (sole allegiance to the US) if they were born with no other allegiance (not a dual citizen) or took the oath of Citizenship. That is Natural Law or National Law, not British Common Law. The 14A mirrored the Civil Rights Act of 1866 and Revised statutes 1992, which used the same language as Elk.
Stare Decisis of Ark has been that anyone born in the US are citizens, due to the wrongly applied BCL doctrine to the jurisdictional phrase, but that is Clearly not the intent of the Amendment as written (as expressed clearly by the writers of the 14A). The decision in Ark though, wasn’t about who could be POTUS, and they never deemed Wong a NBC, only “citizen”.
There are no court decisions that deem any person less than born in the US to citizen parents as NBC. There is no amendment that changes the meaning of NBC as understood by the framers from the contemporary “Law of Nations”. There have been NO precedent (except Chester Arthur, and fraud is NOT precedent) of a POTUS that does not fit this NBC model.
The phrasing that is used by some to arrive at the conclusion that born in the US that “in other words, who at birth is a US citizen”, or “there are 2 types of citizens, those born and those naturalized” is false and ingenuous in it’s framing of the question. The framing should be more like “whom at birth is subject to the jurisdiction of the US and No Other Foreign Power?” A Natural Born Citizen of course! Obama, in stare decisis of ARK is a Native Citizen (his term is “fight the smears”, why doesn’t he say Natural Born? Hmmm), which is not the same as NBC. By his OWN ADMISSION, at birth his citizenship status “was governed by Great Britain”. How can that possibly be a NBC?
by Mikey on Jan 21, 2009 at 3:53 pm
In Reply to Mikey: Gentlemen; This crisis has affected me more than any other in my life. There are two reasons. My father is 84 and nearing the end of his life. His life like so many of his generation has been one of service to his country and its people. He grew up in the depresion, almost lost his life flying c47s over the hump in ww2. The GI bill allowed him to become a doctor, he practiced for almost 40 years. My father is of that generation that gave us the nation we have today. Perhaps that sounds too patriotic today but thats what they did. Now as their generation is passing quickly, I feel a scense of shame that our generation has allowed much of what their blood, sweat, and tears brought us to slip throught our hands. The very least I can do to honor them and all before us is to fight to preserve and protect our unique Constitution. The other reason is my one year old grandson. His life is just begining and I very much want to leave him a nation of liberty freedom and justice as was given to us. Our founders feared that our Charter could be lost in one generation if the people did not understand or defend it. 33 nations with freedoms and laws much like ours fell into destruction in the 20th century, more will in this century. It now appears that the Supreme Court has failed in its Constiutional duty as has the Congress,and the Presidency. If one aspect of the Constitution is unsurped as has article 2 been, then we no longer have a nation based on a foundation of law. The people of this nation it seems now will not be heard by its goverment. I close with this . There are four boxes that support freedom. Soap, Ballot, Jury,and Cartridge. God help us we may well have only the fourth box left to us now.
by geoff on Jan 21, 2009 at 6:19 pm
Mikey said: “Stare Decisis of Ark has been that anyone born in the US are citizens.”
Not anyone, but those with 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.”
The Federal govt. disagreed with the court for very good factual reasons.
by JimAZtec on Jan 21, 2009 at 8:50 pm
Barry can’t be a NBC because he had (admittedly) British citizenship at birth. So did the (majority…perhaps 100%?) founders of our country. They too were British citizens at birth….and they knew that they would not fit the NBC requirement. So….they grandfathered themselves in by a simple ‘or’ statement:
Article II Section I (in 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”
“or a Citizen of the United States, at the time of the Adoption of this Constitution”
by rxsid on Jan 21, 2009 at 9:16 pm
In Reply to rxsid:
b.t.w. had they not put the ‘or’ part in there, 1811 would have been the first time our young country could have had an eligible POTUS (1776 + 35), asuming 14 years of residency of course.
by Anonymous on Jan 21, 2009 at 11:03 pm
In Reply to geoff:
I feel the same way. I am consumed by the angst of our generation (I am the same age as Obama) blowing up the charter that protects us from Government Tyranny. I am ashamed at the degree to which so many don’t seem to care or are so biased that they are willing to be blind to the breakage of National Law. I hear so many people say that “the term natural Born citizen is not defined in the constitution, so we can define it how we wish”, or “that is what it meant then, but not now”. The fact is that the term means the same now as it did then, and is every bit as precient as it was in 1788. There has been no Amendment to change it. There are volumes written about it’s meaning if one wants to extend a little intellectual effort. The term was even discussed recently by the senators during the writing of Resolution 511:
EXCERPT OF SECRETARY CHERTOFF TESTIMONY FROM APRIL 2, 2008: (Resolution 511)
***
Chairman Leahy. We will come back to that. I would mention one other thing, if I might,
Senator Specter. Let me just ask this: I believe”“and we have had some question in this Committee to have a special law passed declaring that Senator McCain, who was born in the Panama Canal, that he meets the constitutional requirement to be President. I fully believe he does. I have never had any question in my mind that he meets our constitutional requirement. You are a former Federal judge. You are the head of the agency that executes Federal immigration law. Do you have any doubt in your mind”“I mean, I have none in mine. Do you have any doubt in your mind that he is constitutionally eligible to become President?
Secretary Chertoff. My assumption and my understanding is that if you are born of American parents, you are naturally a natural-born American citizen.
Chairman Leahy. That is mine, too. Thank you.
They all heard it, talked about it and debated it. If Leahy thinks that a NBC is the product of Citizen parents, how could he support Obama? How could ANY OF THEM. They are all in violation of Article 6.
I cried for my country on 1/20, if this injustice is allowed to stand, and Mob Rule is allowed to be the Law of the land, then my children may be living in “Venezuela” in the near future.
by Mikey on Jan 23, 2009 at 1:23 pm
Well, Chief Justice Roberts must think Obama’s qualified. So far he’s sworn the Big O in twice, and who knows what the future might have in store.
And since Article 2 says “from date of adoption of this constitution”, the first time a natural-born citizen could have been elected would have been 1824, which would have been the first presidential election to take place more than 35 years after adoption of the Constitution, which was on September 17, 1787. Here’s the math: 1787, plus 35 years = 1822, plus two years until the next presidential election.
In one of my earlier post, I used the term “authority” in the legal sense. In legal circles, that is a term of art, and means “legal authority binding on the courts,” usually in the form of a binding judicial decision. In the US, the US Supreme Court is the highest authority on federal questions, including constitutional interpretation. Quotes from the Framers are considered to be “secondary authorities.” They may be authoritative, but they are not binding on a court.
On the McCain natural-born citizenship question, the issue was decided in England in the 13th century, and his citizenship was decided long before this country was settled. The cases and statutory authorities are cited in the Wong decision.
The Wong decision also makes it plain that no matter what Madison or George Mason might have said, when deciding cases, the courts have relied on previous judicial decisions to resolve issues of this kind, including English judicial decisions (e.g., the “common law”), as the basis for the multitude of federal common law decisions cited in the Elk, Wong and Elg cases.
Madison and Mason were undoubtedly great men and great thinkers, but if we are talking about American law, it is CJ Marshall and his colleagues and successors on the Supreme Court that we are required to rely on. If you are looking for the legal basis of the mainstream perspective on the question of whether or not Obama is a natural-born citizen, you might want to take some time and look at these decisions and the earlier cases cited in them.
On a personal level, if you look at Obama’s history, you will see that he spent his most-formative years at an elite prep school and then attended a series of elite colleges and universities. All of them were in this country. His grandmother was a bank vice president. Of recent presidents, his educational background is closest to that of GWB. That’s the scariest thing about him.
by Mike on Jan 24, 2009 at 1:34 am
Mike said: “The Wong decision also makes it plain that no matter what Madison or George Mason might have said, when deciding cases, the courts have relied on previous judicial decisions to resolve issues of this kind, including English judicial decisions (e.g., the “common law”Â), as the basis for the multitude of federal common law decisions cited in the Elk, Wong and Elg cases.”
How come Elk was ignored then? Said Gray in Elk: “The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other.”
How come Wong ignored the legislative intent or meaning placed on the words? John Paul Stevens: “A refusal to consider reliable evidence of original intent in the Constitution is no more excusable than a judge’s refusal to consider legislative intent.”Â
No matter how much spin or lipstick you try and place on Wong, it still suffers from zero support from history and defined legislative law. In other words, Wong will always be a deliberate judicial lie honored only those who lack honor themselves such as yourself.
by JimAZtec on Jan 24, 2009 at 4:45 am
In Reply to JimAZtec: I have spent many hours thinking about whats causing this madness. The supreme court has never ruled to define NB other than in its accepted legal definition. Perhaps this deceit went far further than most thought, and reaced a point where to avoid anarcy the court remains silent. By doing so the court is violating their constitutional charter. The lesser of two evils? Media experts say art 14 and citizenship are what qualify the president. Most people belive that, why not just leave it there? Why I will continue to fight this is not whos in office, in some ways bush and mccain seem to be littlt better. Its what this will pry the door open to. The constitution is already in peril even before this mess sterted,[I know I cant type] This will take us to a place were we wont be able to come back from. Of all the dangers the framers wrote about this is the one issue they feared the most.
by geoff on Jan 24, 2009 at 8:26 am
From reading all the material on the subject of natural born citizens I can’t help but conclude the following:
1) Citizens of united states was never properly defined by the framers mainly because only state law could define whom were born a citizen of the state which in return automatically made them a citizen of the united states under article 4.
2) Congress in 1866 recognized not all states recognized people of color as citizens and set out to define who were citizens of the united states through statute and amendment to the constitution.
3) Congress decided to recognize all persons born or naturalized as citizens of the united states as long as they could not be claimed as subjects of another country.
4) The 14th amendment was clearly designed to recognized only those politically attached to the nation (citizens) and no other.
5) Just as a naturalized citizen cannot be claimed by any other foreign power as their citizens, neither can anyone born.
Obama cannot be a citizen of the united states under the true meaning behind born or naturalized subject to the jurisdiction of the united states. Justice Gray himself confirmed this in Elk v Wilkins writing for the majority in defining subject to the jurisdiction as political attachment and not mere place of birth. This was in perfect agreement with acts of congress of 1866, 1868 and 1874.
This crazy notion that place of birth controls citizenship is so contrary to written law makes you wonder how so many got carried away with such an easily debunked belief.
by Wilbur on Jan 30, 2009 at 1:15 am
That is a very important point you make about Wong Kim Ark and worth repeating.
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