Defining Natural-Born Citizen
by P.A. Madison on November 18th, 2008
“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. James Madison said citizenship rules “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).
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 to the King, however natural citizenship via birth could require being born to a British subject depending on the era in question. After independence this perpetual allegiance to the crown was abandoned for the principle of expatriation.
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.
Furthermore, unlike the British practice, 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 addition to this, States also had specific laws that banned citizenship to alien born who were not resident aliens who had declared their allegiance. New York for example, responded through enactment of a law to the ruling in Lynch v. Clarke (1844) that had used common law rules of citizenship by birth to specifically exclude children born to “transient aliens, and of alien public ministers and consuls, etc.”
In other words, unlike under the common law, birth by itself did not create allegiance to anyone due merely to locality.
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 allegiance to the King from birth. The British doctrine could create 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 sole 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, birth was viewed as enjoining a “perpetual allegiance” upon all to the King 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. Under Sec. 1992 of U.S. Revised Statutes (1866) made clear other nation’s citizens would not be claimed: “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 a persons allegiance to their country of origin except by acting in accordance to written law in throwing off their previous allegiance and consenting to a new one.
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.
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.
* 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.
UPDATE: 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.
Related: What “Subject to the Jurisdiction Thereof” Really Means
Related: Nothing Unusual about States Denying Citizenship to Alien Born Children
Related: Was U.S. vs. Wong Kim Ark Wrongly Decided?
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.”
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
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
“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.
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.”
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?
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.
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?
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.
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.
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.
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.
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.
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.
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?
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!
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.
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?
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?
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.
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.
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.
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.
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
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.
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.
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.
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.
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.
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
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.
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.
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.)
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.
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.
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.
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.
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.
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
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?
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.
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.
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”
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.
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)
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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.
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.
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.
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.
From reading all the material on the subject of natural born citizens I can’t help but conclude the following:
1) Citizens of the united states was never properly defined by the framers mainly because only state law could define whom were born a citizen of the state. This explains I think the many early state laws that denied citizenship upon birth to non-resident aliens who had taken no oath of allegiance.
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. Elk is the only court case where the court was specifically asked to rule on what “subject to the jurisdiction” means. This question was not before the court in Wong Kim Ark.
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.
I have always considered it a weird argument that place of birth creates the required allegiance for citizenship for aliens yet the courts have been steadfast that change of location can never change ones allegiance. Go figure.