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?

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Taylor
Taylor
15 years ago

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.

Hugh
Hugh
15 years ago

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!

JimAZtec
JimAZtec
15 years ago

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!

TJ
TJ
15 years ago

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.

Mike
Mike
15 years ago

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?

mike
mike
15 years ago

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.

pecks
pecks
15 years ago

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.

JoeE
JoeE
15 years ago

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)).

JoeE
JoeE
15 years ago

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.

JimAZtec
JimAZtec
15 years ago

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.

JoeE
JoeE
15 years ago

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.

TJ
TJ
15 years ago

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.

Publius
Publius
15 years ago

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.

Hugh
Hugh
15 years ago

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.

Publius
Publius
15 years ago

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/

JoeE
JoeE
15 years ago

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.

roddy
roddy
15 years ago

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.”

Joss
Joss
15 years ago

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.

Slade
Slade
15 years ago

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:”

“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;”¦”

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.

Agent X
Agent X
15 years ago

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.

Larry
Larry
15 years ago

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.

Publius
Publius
15 years ago

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).

Joss
Joss
15 years ago

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””because they have the same rights except for Presidency: what’s valid for 14A naturalized citizens is also valid for 14A born citizens””, 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”.

Joss
Joss
15 years ago

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.)

TJ
TJ
15 years ago

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.

Nobama
Nobama
15 years ago

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.

Publius
Publius
15 years ago

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.

Tj
Tj
15 years ago

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.

Publius
Publius
15 years ago

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**.

TJ
TJ
15 years ago

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.

Hugh
Hugh
15 years ago

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.

JimAZtec
JimAZtec
15 years ago

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.

Publius
Publius
15 years ago

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.”

Book I, c.19, § 212.”

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?

JimAZtec
JimAZtec
15 years ago

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.

TJ
TJ
15 years ago

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.

Publius
Publius
15 years ago

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””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).

TJ
TJ
15 years ago

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.

TJ
TJ
15 years ago

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.

Hugh
Hugh
15 years ago

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””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.

————————————————————-

Publius
Publius
15 years ago

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.

JimAZtec
JimAZtec
15 years ago

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.

Neville Newman
Neville Newman
15 years ago

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.

Writer
Writer
15 years ago

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

Mike
Mike
15 years ago

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.

Publius
Publius
15 years ago

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?

Publius
Publius
15 years ago

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?

Publius
Publius
15 years ago

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).

Mike
Mike
15 years ago

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?

Mike
Mike
15 years ago

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.

Publius
Publius
15 years ago

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.