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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  1. the truth says:

    Whom ever P.A. Madison is, he is a dimwit for not documenting his sources, just as most of the single digit IQ holders are at the federalist blog.

  2. Jim Delaney says:

    For Mr. Madison/Publius:

    Would sincerely appreciate your learned opinions re my#1016 entry.

    With respect to Prez Clause, and irrespective of my political leanings, I am still very much disposed to believing that the natural born citizenship vs us citizenship distinction was purposeful on the part of the Framers.

    Also, and side from Rep. Bingham’s statement with respect to natural born citizenship, is the distinction clearly made anywhere else in the 14th Amendment in any way which would clearly/reasonably negate its meaning within the context of the Prez Clause?

    Thanks!

  3. Jane says:

    In Reply to P.A. Madison: Thank you for your quick response. I would like to write to my Congressional representatives. This explanation of the meaning of a “natural born citizen” by Rep. Bingham is very clear.

  4. Mr. Biggie says:

    Here are the USA laws from State Dept as regards Dual Nationality.

    Once a US citizen (either by birth or naturalization), one can never lose it execept by them officially renouncing it.

    So all the stuff about Obama losing citizenship in Indonesia is just hot-wind-air theories.

    We need to stick to basic premises. NBC and BC so far.

    The rest are distractions!!!

  5. Jane says:

    Dear P.A. Madison,

    Could you indicate the reference (source) for the Rep. John A. Bingham quote shown below?

    Rep. John A. Bingham:

    “every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen.”

    Thank you.

  6. Jim Delaney says:

    In Reply to Mike: Thanks, Mike. I understood how the diplomatic piece applied to my examples. But, now I’m really beginning to question whether or not we’re all chasing our tails on the natural born citizenship (nbc) eligibility issue. Nonetheless, some considerations/questions for everyone’: 1) John Jay’s 1787 ltr to Washington specifically warning against any but an nbc assuming the presidency seems to have directly led to nbc being specifically included in the Pres. Clause and no where else, thus, presumably, the Framers’ clear intent to make a distinction between nbc and us citizen for purposes of the Presidency; 2) E. Vattel’s Law of Nations in which there is citizenship by law of nature (inheritance from father) and by statute, and his accent on inheritance of citizenship from the father as being pivotally weighty; 3) Rep. Bingham’s assertion,which seems to draw a distinction as well, by his stating that “every human being born within the jurisdiction of the US of parents not owing allegiance to any foreign sovereignty is a nbc”. Didn’t just say us citizen; 4) State Dept. Foreign Affairs Manual’s statement that seems to make a citizenship status distinction with this: “the fact that someone is a nbc pursuant to a statute [by law as opposed to natural law, presumably] does not necessarily imply that he or she is such a citizen for Constitutional purposes”, presumably meaning the Prez. Clause since that’s the only other place I know nbc appears. Everything I’ve read seems to underscore the nearly overriding importance of the father’s citizenship and that being “born of” a father of dual allegiance/citizenship renders him ineligible for Prez. I really think a distinction was deliberately drawn by Framers for the purpose of Art II, Sec 1, but for no other purpose. Where am I going wrong. Am SOOOOO boggled!

  7. Jim Delaney says:

    A friend asserts that he emailed Hawaii Dept of Health which said that Hawaii no longer issues certificates of live birth, only certifications, and that since the us state dept accepts certifications to issue passports, then why does obama need to divulge the vault copy of birth?

    what’s the truth here? anyone know?

  8. Mike says:

    Jim Delaney asked for perspectives on the hypothetical situations raised in his earlier post. Here’s my take on his questions:

    Q: If a child is born of a US Citizen mother and an alien father, irrespective of their marital status and the location of birth, the child is absolutely a US Citizen, but NOT a “natural born citizen”. Right?

    Not right. Under the 14th Amendment and Supreme Court decisonal authority, every person who is born in the US and is subject to its jurisdiction is a US citizen, even if their parents are not. My view is that the only exception is the children of foreign diplomats, since foreign diplomats are not subject to US jurisdiction. I would call this “US citizenship because of the circumstances of birth.” Others disagree, but I think that the Supreme Court is VERY unlikely to try to create an intellectual distinction between that and a “natural-born citizen.” After adoption of the 14th Amendment, they are the same thing.

    Q. If a child is born of a US Citizen father either within or without the jurisdiction of the US, irrespective of the mother’s citzenship status, the child is absolutely a “natural born citizen”? Right?

    Generally speaking, the answer is yes, provided that the parents are married. However, this question poses a number of complexities, depending on circumstances, and it raises a number of issues. First is marital status. Second is whether or not diplomatic status is an issue. Third is whether extra-territorial jurisdiction is an issue. But I think that if the parents are married and the father is a US citizen, and the child is born in the US, the child is clearly a natural born citizen. The only possible exception would be if the mother is a foreign diplomat. I do not know what US law says about the children of such “mixed couples” when the child is born outside the US, but I think there is a specific provision for children of US citizen mothers. I agree that under traditional rules, the foreign-born childen of US citizen fathers are US citizens from birth if the parents are married, and are probably not if the parents are not married.

    Q. If a child is born to an alien father or an alien mother, or both, within the jurisdiction of the US, the child is absolutely a US Citizen, but not a “natural born citizen”. Right?

    Children of diplomats (e.g., in the US on diplomatic passports) are NOT subject to US jurisdiction, and in my opinion their US-born children are not US citizens from birth. The US born children of other aliens are US citizens from birth and in my view natural born citizens. I don’t think that the 14th Amendment would create US citizenship for children of aliens born outside the US in places “subject to US jurisdiction,” such as Guantanamo, Cuba.

    Q. Finally, if a child is born to a US Citizen mother and an alien father within the jurisdiction of the US, the child is absolutely a US Citizen, but absolutely NOT a “natural born citizen”? Right?

    As you know from my comments, I do not believe that the Supreme Court would attempt to create a distinction between “natural-born citizen” and those who are US citizens because of the circumstances of their birth. That distinction would undermine the meaning of the 14th Amendment. Therefore, I believe that every person born in the US (other than children of foreign diplomats) is a “natural born citizen.” I haven’t figured out what happens if one parent is a diplomat, and the other is not. Under traditional notions of citizenship, the marital status of the parents would be determinative, and the child would follow the citizenship of the father, if the parents are married, and that of the mother if they are not.

    What I have not seen thus far is a logical explanation of a distinction between “natural born citizen” and “someone who is a US citizen because of the circumstances of birth,” and right now, I cannot see one.

  9. Jim Delaney says:

    Sure hope I can get a definitive response to my 12/14 queries re those various citizenship situations which may or may not render a child “natural born” for purposes of the Presidiential Clause. Am still somewhat confused over the jurisdictional requirement. Assuming a child is a natural born citizen by virtue of parentage alone (2 US citizen parents or a US Citizen father alone at time of birth), does jurisdiction of birth matter, and is there always the additional requiremenet that either both parents or the father’s firm allegiance alone to the US exists at time of the child’s birth? I thought breaking it down as I did below would help clarify it for me. Thanks!

  10. Mike says:

    Thanks to Publius for the clarification on the Donofrio case. I may have confused it with the Berg case, which did involve standing, as I recall. And Publius is probably correct that the US Supreme Court doesn’t have the stomach for this, but I think they are also informed by the likeliest outcome, in view of the legal precedents discussed here.

    I think that Arnold is probably not the right person to test the meaning of natural-born citizen, since it is pretty much undisputed that he was not subject to the jurisdiction of the US at the time of his birth. Nice to see some humor here, though.

    On the issue of clarification raised by Publius, it sounds like the plaintiffs in these suits have done enough work to provide the basis for an interesting and authoritative law review article on the meaning of the constitutional provision. Any takers?

  11. Publius says:

    In Reply to JimAZtec:

    Sorry JimAZtec and Mike, but both of you are off-base on this.

    Granted, there was a slew of lawsuits challenging Mr. Obama’s legitimacy for the office of POTUS that could never get past square one because the plaintiffs were powerless to demonstrate standing to sue Mr. Obama. Because most of these cases were brought in federal district court, the standing issue was susceptible to relatively easy analysis (because it’s basically the same across the country), with the same result in each case: no standing–get out of my courtroom!

    Mr. Donofrio’s case was different. He never sued Mr. Obama personally. He was suing the Secretary of State of New Jersey in state court in New Jersey under the theory that because she was refusing to do her job as set forth in the statutes and Constitution of New Jersey, the court should force her to do her job and begin vetting POTUS candidates, starting with the two major party candidates and one third party candidate this year.

    As it happens, Mr. Donofrio benefitted from what happen to be a relatively liberal tradition in New Jersey in granting taxpayers and taxpayer groups standing to sue state actors who fail to do the job they are elected or appointed to do. Moreover, by the time Mr. Donofrio’s case reached SCOTUS, the question of standing to sue was not at issue (it was basically established). The state of New Jersey never challenged him on standing. The Supreme Court of New Jersey made a final ruling based on “movants papers”, thereby rendering a decision on the merits that, procedurally speaking, can never occur absent at least a sub silentio holding that the plaintiff has standing.

    With a merits decision in place by the time Mr. Donofrio applied to SCOTUS for an emergency stay of the 2008 election, the question was no longer one of standing, but rather, whether SCOTUS was inclined to intervene in the goings on in New Jersey. The fact that SCOTUS declined Mr. Donofrio’s invitation to mix it up with the bad actors in New Jersey means just that–they took a pass. To my mind, the decision on the part of SCOTUS to stay above the fray has everything to do with the phrase “discretion is the better part of valor”, and very little to do with a desire to express approval or disapproval of Mr. Donofrio’s case on the merits, or to lump Mr. Donofrio in with folks like Mr. Berg, whose standing to sue is questionable at best.

    BTW, and IMHO, its a moot question as to whether either Mr. Donofrio or Mr. Wrotowski retain the ability to petition SCOTUS for a writ of certiorari. They have no plans to do so, and quite frankly, given the current atmosphere, I don’t blame either of them one bit for being reticent. Both of them have done yeoman’s work educating all of us in what the Constitution means when it says “natural born citizen”. This despite what appears to me to be an enormous edifice (with no foundation) having been erected to water down the meaning of that term by what seems like dozens of eminent individuals who I believe know better, but who are agenda-driven and are therefore uninterested in originalist arguments.

    Now that that genie is out of the bottle, though, it will be interesting to see what the fallout is.

    Publius

  12. JimAZtec says:

    In Reply to Mike:

    Both Donofrio and Wrotnowski were considered dead before the court had rejected their stays. As I said before, the only way to get this before the court is for someone with standing to make a challenge. A likely scenario would be for a state to refuse to certify Obama’s EV’s on the grounds he does not meet the qualification of a natural born.

    Obama or the Democratic Party then might sue to challenge the assertion he does not meet the qualification. The FEC conceivably could challenge his qualification if it wasn’t for the fact they lack ability to distinguish fact from fiction.

    Another option is to have Arnold Schwarzenegger run for president in 4 years. He could argue he was “born” AND naturalized subject to the jurisdiction of the United States and therefore a natural born citizen. His argument would be just as legitimate as the argument that says anyone born on American soil and subject to the jurisdiction thereof is a natural born citizen. No where does it say someone has to be born on American soil (old wives tale), only they must be born or naturalized and subject to the jurisdiction of the United States just like a naturalized Arnold! There is no distinction between being born or naturalized when it comes to subject to the jurisdiction thereof! Hahahahahaha

    Of course subject to the jurisdiction of the US cannot then mean physical location or else idiots can create loopholes all day long like with Obama and maybe even Arnold if he wanted.

  13. Mike says:

    My understanding is that the Donofrio case is dead; the lower court determined that the plaintiff did not have standing to challenge Mr. Obama’s citizenship because the nature of the personal harm he alleged was too remote to support the lawsuit. This was appealed to the US Supreme Court, which upheld the ruling of the lower court on December 8, 2008.

    Today (12-15-08), the US Supreme Court also denied the plaintiff’s application for an injunction in the Wrotnowski case. This is a pretty good indication that the applicant did not satisfy the Court that there was any likelihood of success on the merits.

    It is looking pretty obvious that the Court does not want to get involved in another partisan political dispute.

  14. Hugh says:

    To Publius: I saw this comment on Americasright.com. Is this valid?

    “The cases have not been denied. Donofrio v. Wells has not been denied. I expect that while stays have not been issued based upon Wrotnowski v. Bysiewicz, that it will not be denied today, either.

    Donofrio v. Wells, the case, is pending. Expect all to pile up as pending until after the Congress (allegedly) certifies the Electoral College vote.

    That is when it may hit the Fed Fan up the hill at the SCOTUS.

    See:

    article: federal judicial review allowed only after Congressional certification of the presidential vote…”

  15. Hugh says:

    In Reply to Publius:

    Does natural law confer natural born citizenship to a child of a U.S. citizen mother to an alien-non naturalized father at the time of the child’s birth in the U.S. and its possessions?

    Does natural law confer natural born citizenship to a child of a U.S. citizen mother to an alien-non naturalized father at the time of the child’s birth outside the U.S. and its possessions?

    If Obama can really produce a valid “vault copy of his birth certificate—long form with all supporting evidence–then he has no problem if he is actually born in Hawaii and his dad was naturalized or actually a citizen at the time of Obama’s birth.

    To me the above paragraph seems to fit all Presidents excluding the framers and Chester Arthur.

    Do you hold the Obama is Hawaiian born? If you hold to Hawaii, why so? I think the preponderance of evidence leads to Kenya.

    In any case, Obama’s refusals are harming America! He is a man who thinks our Constitution is flawed.

    Thank for you help! I am sorry if this is a retread for you.

  16. Jim Delaney says:

    In Reply to Publius: In my feeble attempt to cut to the chaste on the issue of a person’s eligibilty to be President or VP, let me try a few permutations here and get your learned replies: first, to be President within the intent and spirit of the Presidential Clause and the 14th Amendment, a person must be a “natural born citizen”. Right?

    Thus, and assuming everyone is in agreement on that score, if the candidate had been born of 2 US Citizens within the jurisdiction of the US, s/he would absolutely meet the “natural born” eligibility requirement. Right? And it would be of no consequence if one or both of these US Citizen parents had been naturalized, so long as both were US Citizens at the time of the child’s birth. Right?

    Within the meaning and spirit of the law, is transmission of “natural born citizenship” solely dependent upon a father’s “attachment”to the US, i.e. the father’s citizenship when the child is born. In the final analysis, conferral of “natural born citizenship” status is strictly a patrilineal thing. Right?

    These specific questions:

    If a child is born of a US Citizen mother and an alien father, irrespective of their marital status and the location of birth, the child is absolutely a US Citizen, but NOT a “natural born citizen”. Right?

    If a child is born of a US Citizen father either within or without the jurisdiction of the US, irrespective of the mother’s citzenship status, the child is absolutely a “natural born citizen”? Right?

    If a child is born to an alien father or an alien mother, or both, within the jurisdiction of the US, the child is absolutely a US Citizen, but not a “natural born citizen”. Right?

    Finally, if a child is born to a US Citizen mother and an alien father within the jurisdiction of the US, the child is absolutely a US Citizen, but absolutely NOT a “natural born citizen”? Right?

    In the absence of a lofty SCOTUS definition, the definition you guys render here is good enough for me. Thanks!

  17. Publius says:

    In Reply to Hugh:

    Natural law seems to indicate that the child of an unmarried U.S. citizen mother inherits U.S. citizenship from the mother.

    The “II” versus “Jr.” naming convention may be a distinction without a difference, I’ll admit, though it did pique my curiosity.

    Nevertheless if Mr. Obama finds himself in a pinch, and needs to show that he is a constitutionally-vallid natural born citizen in order to assume the office of POTUS, I would think that proof that his mother was not legally married to his father at the time of his birth in Hawaii, delivered between now and January 20th, could be just what the doctor ordered.

  18. Hugh says:

    In Reply to Publius:

    Jim Delaney may be speaking of U S Code Section 1401 which may relate to INA 301, but it does not speak of marriage of the child’s parents as a requirement as far as I can tell. The only qualifiers are one US citizen parent, one alien parent and the time limits. Please explain!

    (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person

    I think the Donofrio and Wrotnowski cases are correct due to Obama’s admission that he is a British citizen via his father.

  19. Publius says:

    In Reply to Jjim Delaney:

    Presuming you have the right citation, I suspect the 1961-era statute you are referring to applied to a child born **outside** the United States to a U.S. citizen mothers married to a father of foreign nationality.

    The existence of statutes like the one you mention is, it seems to me, evidence that there currently isn’t, and probably never was, any provision of natural law, pursuant to which a children can be considered to inherit their citizenship of their married mothers.

    Emphasis on the word “married.”

    Consider the following passage taken from the dissent in Wong Kim Ark: “And to the same effect are the modern writers, as, for instance, [169 U.S. 649, 709] Bar, who says: ‘To what nation a person belongs is by the laws of all nations closely dependent on descent. It is almost a universal rule that the citizenship of the parents determines it,-that of the father where children are lawful, and, where they are bastards, that of their mother, without regard to the place of their birth; and that must necessarily be recognized as the correct canon, since nationality is in its essence dependent on descent.’ Int. Law, 31.”

    I have seen it said somewhere that if an boy baby is given his father’s name, but instead of having “Jr.” as a suffix to his name, he is instead given the suffix “II”, this is an indication that the child not the product of a legal marriage between his mother and father. In other words, the boy was born out of wedlock–a ‘bastard’.

    I seem to recall seeing where on the Hawaii Certification of Live Birth the Obama campaign released to the public, the candidate’s name is listed as “Barack Hussein Obama II.”

    Query whether this is an indication that Barack Hussein Obama and Stanley Ann Dunham were not actually married when the future presidential candidate was born in Hawaii?

    If Mr. Obama’s parents were not actually married when he was born, I would think this explains a few things pretty well, and in a way quite favorable to Mr. Obama in terms of his future political plans.

    First, assuming it is true that Barack Hussein Obama II’s mother (Stanley Ann Dunham) and father (Barack Hussein Obama) were not legally married at the time of his birth in Hawaii in 1961, and assuming Mr. Obama is personally aware of this, Mr. Obama may (being an attorney and former Con Law professor) be of the professional opinion (as yet unvoiced, but as it turns out, possibly quite correct) that he inherited his U.S. citizenship from his U.S. citizen mother pursuant to this very provision of natural law set forth by Bar in Section 31 of his International Law treatise. Since Chief Justice Fuller cited Section 31 of Bar’s Internation Law treatise in his own dissent (joined by Justice Harlan) to Justice Horace Gray’s SCOTUS majority opinion in U.S. v. Wong Kim Ark, Mr. Obama may have concluded that anyone who currently finds favor in the basic logic of Chief Justice Fuller’s dissenting opinion (as I find I have) is likely to concede (I can see where I might, if prompted) that a child born to an unwed U.S. citizen mother is a “natural born citizen”, fully qualified to assume the office of POTUS.

    Second, and again, if all of this (however strange to imagine) is in fact true, it would provide a surprisingly innocent explanation to the average concerned U.S. citizen as to why Mr. Obama has been, let’s say, a little ‘reticent’ when it comes to releasing the vault copy of his birth certificate.

    And third, while it may turn out that Chester A. Arthur was in fact not a constitutionally-valid natural born citizen, based on the fact that CAA was born to a father who, though legitimately married to CAA’s mother, was nevertheless a British subject who did not become naturalized in the U.S. until some fourteen years after the CAA’s Vermont birth in 1829, Mr. Obama can take his ease, assured of a different fate based on a certain minor (but nevertheless critically important) factual distinction!

  20. Jjim Delaney says:

    In Reply to Publius: Am not an attorney, but am smitten by the complexity of this case. To clear up a more mundane issue regarding OBH’s birth and citizenship status, would one of you fellas respond to this. Hope it hasn’t already been covered somewhere here. If it has, my apologies for the intrusion.

    Somewhere I read that in 1961, the date of OBH’s birth, INA 301(g) required that if a child was born in a marital situatiion of a US Citizen and an alien that the US Citizen must have been physcially present in US for 10 years, 5 of which must have been over the age of 14. Since OBH’s US Citizen mom was 18 at the time of OBH’s birth, then is it true that her US Citizenship could not have been transmitted to her son for her having failed to meet the physcial requirment’s test? And if that’s true, then isn’t it also true that OBH, even if born in the US, is neither a US Citizen by birth or a “natural born citizen”? ALos, is the current less stringent physical presence requirement retroactive to 1961? Confusing stuff for a neophyte. Thanks.

  21. Mike says:

    Silly me.

    I thought what was under discussion here is whether or not the candidates in the recent election meet Constitutional qualifications to be president of the US, not an ad hominum attack on the winning candidate. Mr. Daniel’s catalog of red herrings aside, the evidence is that Sen. Obama WAS born in the US, but as always, some people will never be persuaded, no matter how convincing the evidence. I suspect that Mr. Daniels would never support the senator or any other Democrat, even if the candidate had been born in the Lincoln Memorial.

    From a practical perspective, there is no dispute about the formative part of Sen. Obama’s life, he went to elementary school in Indonesia, was raised by his white grandparents in Hawaii from age 11, went to the state’s most exclusive private high school where he was the only black student, went from there to an exclusive private college in a suburb of Los Angeles, finished his undergraduate degree at an Ivy League university, went on to be elected president of the law review at the nation’s most distinguished law school, and then went on to teach at another distinguished law school while working in Chicago as a community organizer. Most people would think that part of his experience is far more relevant to his patterns of thinking and ability to govern than whether or not his soon-to-decamp father was a British citizen at the time of his birth. A few have noted the stark contrast with the educational achievements of the losing candidates.

    Whether or not the president-elect has the temperament and experience to be president, the fact is that he won more than enough votes to be elected president by the electoral college, in fact, almost twice as many as Sen. McCain. Mr. Daniels will have eight years to get used to that.

    Why is it that the “silver-plated” part of Mr. Daniel’s screed makes me think of the governor of Alaska, whose popularity there is based on large hand-outs financed by a big increase in corporate taxes? More like Eva Peron than any American politician, but now we are indeed far afield from the issue of consitutional qualifications.

    Now, where were we?

  22. Publius says:

    In Reply to Mike:

    If you are loathe to condemn a candidate for POTUS solely on the basis of his or her being a dual citizen at birth, I think you would have company in me. I assure you, I am am doing my dead level best to avoid leading anyone astray on the proper criteria for determining who is and who is not a “natural born citizen” as that term is used in Article II, section 1 of the U.S. Constitution.

    Certainly, the fact of dual citizenship at birth should not be the sum and substance of any indictment of a candidate for POTUS. Strictly speaking, the Constitution includes no positive language that specifically provides that dual citizens are automatically disqualified.

    In terms of the true question at hand in the case of Wong Kim Ark, which is whether the U.S. government was obliged to recognize him as a citizen of the United States or not based on the fact of his birth on U.S. soil, it may be helpful to consider one similarity between the circumstances of Wong Kim Ark’s birth, Barack Hussein Obama’s birth, and Chester A. Arthur’s birth, one difference unique to the circumstances of WKK’s birth which I believe probably never actually counted against him, and one one difference unique to the circumstances of BHO’s birth which may (at least potentially) complicate his case for why he should be considered a “natural born citizen” as that term is used in the Article II, Section 1 presidential eligibility clause of the Constitution.

    If not for the inspired research of Leo Donofrio earlier this month on the case of former U.S. President Chester A. Arthur, we would still be ignorant of the fact that CAA’s father only became a citizen of the United States in the county of Washington, New York in 1843, some 14 years after CAA’s 1829 birth in Vermont to a U.S. citizen mother.

    So beyond the fact that all were born in the United States, one key similarity beween and among WKA, CAA, and BHO is that each was born to a father who was a foreign national at the time.

    As we know, after a failed attempt to secure the Republican Nomination for president (1884), and after being replaced in office by Democrat Grover Cleveland of New York (1885), CAA died in 1886. SCOTUS decided the case of Wong Kim Ark some twelve years later, in 1898. Before 1898, one who was born on U.S. soil to a resident foreign father was not considered a U.S. citizen, but rather, was presumed to have inherited the father’s citizenship. Of course, if the father was a resident alien otherwise qualifed for naturalization later in life, at the time a child is born to him (prior to 1898, at least), that child would presumably also be considered a resident alien, and would be similarly qualified to become a U.S. citizen at some point in the future.

    So it seems clear that that it was only after the SCOTUS decision in Wong Kim Ark that the U.S. government was legally obliged to recognize, as U.S. citizens, individuals who were born on U.S. soil to non-citizen fathers.

    Did BHO and CAA have anything like a “leg up” over WKA in terms of claiming U.S. citizenship at birth, it would presumably be the fact that the mother of each was a U.S. citizen, whereas WKA’s mother was a resident alien (Chinese national)? If this is in fact a distinction with a difference, I would think it would be important to determine when this occurred. It certainly wasn’t always the case, and is arguably not the case now.

    According to my understanding of the natural law relating to this issue, throughout history, at least up until the time of Wong Kim Ark’s birth in San Francisco sometime between 1868 and 1873, being born to a citizen father was a sufficient condition for a given child to be considered to have inherited his or her citizenship. That is, whether your birth occurred domestically, or in a foreign country, if your father was a citizen, you were a citizen.

    Beyond this, however, my understanding is, that being born to a citizen father was traditionally also always a **necessary** condition for a given child to be considered to have inherited his or her citizenship. The upshot of this, of course, is that, back in the day (at least), and as bad or ‘off-key’ as this may sound to the modern ear, particularly in the U.S., the citizenship status of the mother never actually mattered when it came to the relevant provisions of natural law. This was certainly the case when CAA was born in 1829, at least up until and including the time WKA was born (in the 1868-1873 time frame).

    Vestiges of this provision of natural law were arguably still operative at the time of BHO’s birth in 1961. Recall that if BHO were born overseas rather than in Hawaii, his mother’s age (eighteen) would not have been sufficient for BHO to meet the then-in-effect citizenship requirements of U.S. statutory law (based on the math, she would have needed to be at least nineteen). To this day, I am unaware that the provisions of natural law allowing one to inherit the citizenship of one’s father only are recognized as having been displaced, such that a more inclusive arrangement prevails such that one can now lay claim to inherited citizenship at birth so long as one of your parents was a citizen. In fact, even now in the U.S., the ability to demonstrate citizenship status based solely on the fact of one’s mother being a U.S. citizen appears to be a 20th century development (and a limited one at that) appears to be a result not of any particular provision of natural law, but rather of recently-enacted positive laws to this effect.

    Assuming for the moment that WKA’s mother’s status as a resident alien did not present any additional obstacle (vis-a-vis BHO and CAA) in terms of forcing the government to recognize WKA as a U.S. citizen, we are left to ponder whether BHO Sr.’s status as a temporary U.S. resident (here on a student visa) at the time of BHO’s birth should actually be considered to leave BHO at a **disadvantage** as against WKA and CAA, both whose fathers were permanent residents at the time of their respective births. The argument would be that BHO’s claim to U.S. citizenship is that much weaker than the respective claims of WKK and CAA based on the fact that BHO’s father’s personal ties to the U.S. were clearly weaker by comparison.

    To be clear, I make no case that BHO is not a U.S. citizen. His birth in Hawaii, plus the decision in U.S. v. Wong Kim Ark (as recently followed in Hamdi v. Rumsfeld), makes that a foregone conclusion. Rather, I am attempting to explore the relevant facts of his birth to determine whether or not there would be a good reason for considering the nature of BHO’s citizenship to be different from those of CAA and WKK in a way, or to an extent, that could adversely impact his **specific** claim to being a constitutionally-valid natural born citizen.

  23. JoeE says:

    Mike seems to suggest that there isn’t a substantive difference in the meaning of the terms, Citizen and Natural Born Citizen (relative to the circumstances at birth). Apparently many suggest that there is confusion in what the term Natural Born Citizen means altogether. As one who does not know the law, perhaps you could enlighten me here, as you are sounding as if you do.

    There is a consensus that individual X is a Natural Born Citizen. Just for fun, lets say he goes off to China, renounces his U.S. citizenship and becomes a Chinese national. Now, he is obviously not a Citizen of the U.S., yet surely he is still a natural born American? After many years our fictional character (let’s call him Kim) decides it wasn’t a great idea after all, as the cultural revolution has become like ancient history and it’s becoming more like the capitalist system he wanted to leave, and reluctantly returns to the U.S. and becomes naturalized – with very little trouble (after all he is natural born). After the requisite amount of time he decides to run for the Presidency. He is a natural born American and he is a citizen. Is he a natural born citizen? Is there still no significance between his being natural born and being a citizen who was born in the U.S.? He is also a statutory citizen, is he not? Is he perhaps a Citizen, who is native born?

    Why would the framers make a distinction between a qualification for a senator, who should be a citizen, and that of the Commander in Chief, who should be a natural born citizen? Superfluous verbiage? What would lawyers (like you?) do if there is a confusion about a term which was used widely in a bygone age,? Would you consult the dictionaries of the time.? And if there wasn’t an appropriate dictionary (one national in character explicitly showing local distinctions of the term), would you not consult those with the greater erudition who used the term at the time and place in question? And would they, especially if they used it emphatically, without undo contradiction by their peers, be considered authorities of the term? How much of an authority relative to a well respected dictionary? Would you in general, concur with these individuals? I understand that there is a distinction between intentions in the law and the intentions or motivations of the framers, but is there not a bridge?

    Hamdi is a “Ëœknown”Ëœ entity without the best and uncompromised interests of the US at heart. Hopefully no one would vote for him or for Charlie Manson admirer, Bill Ayers. The problem is with the “Ëœunknown”Ëœ entities who may not have undivided loyalty to the US. Did the framers not have this also in mind when they devised the more stringent qualification?

  24. Why 66,000,000 Obama Votes Are Not the Will of People

    One of the most common arguments presented by Obamabots why the people who are challenging Obama’s eligibility to be President should not do so is because 66,000,000 people voted for Obama. Therefore choice for Obama is the will of the people. Wrong, wrong, wrong and 66,000,000 votes wrong. Only half of America voted. Only half of the half who voted, voted for whom they thought was Obama. That makes the number only 25% of the people who thought they voted for Obama. That is hardly the will of the people. The candidate for whom 66,000,000 people voted, was not the candidate they thought he was.

    1. First of all Obama’s true legal name is Barry Sotoero. If Obama’s real name is Barry Sotoero, the people voted for Barack Hussein Obama and not Barry Sotoero. Barack Obama doesn’t exist except by his fictional creation.

    2. If Obama knowing he failed to meet one of the three criteria to become president, then he is knowingly a false candidate. False means not real. Not real means fiction. The people voted for a fictional candidate and not a bonafide qualified real candidate. They voted for a fictional character.

    3. If Obama was “change you could believe in”, then the people voted for their belief in change not to get short changed.

    4. If Obama is MSM favorite and MSM suppressed vital information necessary for the public choice and reported only favorable information about Obama, then the people voted for Obama media hype, not the favorite.

    5. If Obama is a flim/flam man, the people voted for the flim/flam and not the man. The man is an illusion.

    6. If Obama is an empty suit, they voted for the suit and not the empty.

    7. If Obama is “the one”, they voted for a fantasy and not the man.

    8. If Obama is one slick glittering package, they voted for the package and not the slick.

    9. If Obama is a silver plated turd, they voted for the silver plating and not the turd.

    If Obama is not qualified under the US Constitution to be President, then he perjured himself and perpetrated a heinous fraud upon the American people. All those people who voted in good faith for him have been betrayed. The reality is that had MSM been objective in their reporting about Obama and disclosed the question of his eligibility based upon his citizenship, perhaps 66,000,000 would have voted differently. Because Obama, the DNC, MSM, and a few thousand more deliberately covered up the truth, published a forged COLB, chances are very good there is a USURPER about to steal the government and place America in the greatest NATIONAL SECURITY THREAT in her history.

    Under no circumstances can Obamabots claim because 66,000,000 who voted for what they thought was a valid candidate these votes represent the will of the people. Again, had the voters known the real facts, the question is would they have voted for him. It cannot be called the will of the people when the people who voted had voted based upon false information.

    The fat lady hasn’t sung yet. The more you discover the more power you gain. Join the discussion at http://www.blogtalkradio.com/vos Sunday 12-14-08 from 7 p.m. to 10 p.m. PST. How will Blag’s arrest affect the rest of the Obama thugs?

    Check out this video regarding the electoral college

    Cut and paste ““ it’s excellent

    http://wethepeopleusa.ning.com/video/video/show?id=2482704%3AVideo%3A13154

  25. Mike says:

    While there may be a number of troubling aspects to the idea that an accused terrorist or ‘fellow traveller’ like Yaser Esam Hamdi might be able to become president, the most disturbing is the notion that he could garner the political support and votes to become president. However, I do believe that after adoption of the 14th Amendment, he does meet the Constitutional qualifications (assuming he is 35 yrs old). However, so did Timothy McVeigh and Charlie Manson, and I wouldn’t want to see either of them as president, either.

  26. Publius says:

    In Reply to Mike:

    You rely on the SCOTUS decision in U.S. v. Wong Kim Ark as legal precedent for the proposition that Mr. Obama is a natural born citizen and is thus qualified for the office of POTUS. By your reasoning, Wong Kim Ark himself, born of two resident alien parents, was also a natural born citizen, fully qualified for the office of POTUS. In light of the recent decision in Hamdi v. Rumsfeld, it is clear that by now, more than 100 years after deciding Wong Kim Ark’s case, SCOTUS can be relied upon to recognize anyone who is born on U.S. soil, even individuals like Los Angeles-born Yaser Esam Hamdi who are born to alien parents who are in the United States illegally.

    The U.S. government regards Yaser Esam Hamdi, who was arrested in a battle zone by Northern Alliance soldiers to whom he surrendered his firearm, as an illegal enemy combatant. The Supreme Court recognizes him as a U.S. citizen. By your analysis, it is settled U.S. law that if Mr. Hamdi finds life in the United States to his liking now, and decides to live here for the next 14 years or so, he will be eligible to run for (and if he manages to muster up sufficient popularity, win and assume) the office of POTUS.

    Does this trouble you?

  27. Sophie says:

    BREAKING NEWS!!!

    White House says “No Blair House for Obama until after Electoral College vote count”.

    http://www.uslaw.com/pop/?p=164

  28. Mike says:

    I think Publius is focusing on a distinction without a difference, when he tries to distringuish Mr. Wong’s status as US citizen by virtue of birth, from the status of Sen. Obama as a “natural born citizen” of the US. The only difference is that neither of Mr. Wong’s parents were US citizens, whereas Sen. Obama’s mother was a US citizen. As stated in my earlier posts, I do not believe that there is any logical difference between someone who is a US citizen by virtue of the circumstances of his birth, and a “natural-born citizen.”

    US jurisprudence has always held that the child of two US citizens is a citizen from birth, no matter where the child was born, and in this case, the “dual citizenship” exception cited by Publius is also a red herring, since dual citizen status would be determined by the law of the country where the child was born, rather than by US law: the law of one country might provide that the child of a non-national born within its borders is a citizen, while the law of a second country might not. As I said in my earlier posts, the phrase “subject to jurisdiction” means that the individual involved is subject to the jurisdiction of the US, which means “not here on diplomatic status”, and therefore subject to the laws of the US.

    Likewise, Publius has cited the Elg case as additional authority for the proposition that a child born in the US is a US Citizen from birth, even if it’s parents subsequently relinquish their citizenship. I think Publius might agree that this is an indication of where the courts are likely to go, and could be considered ‘persuasive’ rather than ‘binding’ authority.

    On the issue of the various attempts to obtain a judicial determination of Sen. Obama’s qualification, I think it is delusional to think that a justice who desired to weigh in on the issue would not vote in favor of the writ, and the 9-0 decisions should be an indication of the opinion of the Court on the merits of this litigation. Remember that court jurisdiction and standing are always relevant, given the limited jurisdiction of the federal courts.

    (And BTW, “president-elect” is a status, rather than a title, and Sen. Obama should be called just that.)

  29. Hank Willi says:

    Wong Kim Ark court saw the condition of the parents a deciding factor and not just birth. Justice gray was involved in Elk v. Wilkins (1884) where the court held “subject to the jurisdiction” of the United States required “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”

    Wong Kim Ark is both factually and legally invalid. Anyone who might draw attention to Wong Kim Ark are themselves morally corrupt.

  30. Publius says:

    In Reply to Mike:

    Based on the following, it appears that Mr. Wrotnowski’s Application for Emergency Stay is doomed to suffer the same fate on Monday, December 15th as Mr. Donofrio’s did on Monday of this week. Denied w/o comment.

    http://www.supremecourtus.gov/orders/courtorders/121208zr.pdf

    You said:

    As has already been observed, I believe that Mssrs. Wrotnowski and Dombrio both have a standing issue…

    I say:

    A decision on the merits of Mr. Donofrio’s case was rendered by the Supreme Court of New Jersey. As a result, in the matter of his Application for Emergency Stay to SCOTUS, Mr. Donofrio’s standing to sue the Secretary of State of New Jersey was not before the court. That is not to say that SCOTUS could not be heard to defy the courts of New Jersey, where ordinary citizens and groups thereof have long had the benefit of unusually liberal court rules in terms of demonstrating their standing to sue government officials in state court. Just that they would have to raise the issue of standing sua sponte, and they explain why New Jersey’s court rules should not apply, in order to justify a refusal to consider the case on the merits.

    You said:

    …that is what tripped up the Dombrio petition 9-0, and I do not expect any different outcome on the Wrotnowski petition.

    I say:

    You are likely right, of course, on the ultimate outcome of the Wrotnowski Applicaton for Emergency Stay. But I would be strongly inclined to warn you away from any particular conclusion on the question of whether the justices as a whole, or any justice in particular, believed that Mr. Donofrio’s or Mr. Wrotnowski’s case was fatally short on merit. Do not discount the possibility, for example, that the justices felt the issue, though probably meritorious, was not yet ripe for adjudication by an Article III court (i.e., too early) because the Electoral College has not yet met and voted, or is moot (too late) because the die is already cast (e.g., New Jersey’s role is complete), or that the claim ‘non-justiciable’ by an Article III court because disputes of this sort are more properly aired out in another forum (e.g., by Electors at the convention, by Congress upon counting elector ballots, etc.). The fact that we will likely be left with an unreviewable (because purely discretionary) “no” decision with no comment given means that no closure is at hand for the issues raised. Again, I must emphasize that this outcome is perfectly consistent with a circumstance in which the legal arguments lodged as part of Mr. Wrotnowski’s claim resonated with at least some of the justices.

    You said:

    I think these decisions could be seen an an indication that the Court does not wish to revisit this part of its jurisprudence.

    I say:

    I have to say I concur, except to say that there really is nothing on record that qualifies as true “jurisprudence” in terms of the definition of “natural born citizen”. A decision on either of Mr. Donofrio’s or Mr. Wrotnowski’s claims would have addressed a classic case of first impression regarding the U.S. Constitution, a circumstance that is by now quite rare. I sincerely hope that the reticence exhibited by SCOTUS this month is warranted, as I believe this issue will not go away until an on-point SCOTUS decision is rendered.

    You said:

    Publius might believe that a decision on “Ëœnatural born citizen’ can be crafted without affecting the Wong Kim Ark decision. But that decision rests on the premise that Wong was a US citizen by virtue of the circumstances of his birth. I think it would be exceedingly difficult for the Court to now take a position that the Wong decision does not affect the interpretation of “natural born citizen,”…

    I say:

    Strictly speaking, the similarity between the two cases that is currently striking you is probably not based on a correspondence of the facts and circumstances involved, but rather, based on the specific legal conclusion arrived at by Justice Gray. To further illustrate my point, consider whether, if Justice Gray’s conclusion had been the opposite (no citizenship for Wong Kim Ark, “subject to the jurisdiction of the United States” means subject to the sole jurisdiction thereof so as to deny the possibility of dual citizenship), I can’t imagine coming up with a good argument for why Mr. Obama’s example of being blocked from assuming the office of POTUS by virtue of being a British subject at birth must be considered to be analogous to Mr. Ark’s example of being refused re-entry to the U.S. as a non-citizen, based solely on the common fact of the two births having taken place on U.S. soil.

    You said:

    And the 9-0 decision on Dombrio’s petition suggests that none of the present justices want to craft that argument.

    I say:

    Enough of this talk of “9-0”. They were fully empowered to deny the two Applications outright (e.g., based on a procedural technicality or other flaw), even if all nine justices found themselves personally convinced that, on balance, the Applicants were probably in the right based both on the facts, and on and the law. Likely as not we will never learn what the specific breakdown was, at least not in the short term. In the meantime, the issue may be brought before SCOTUS once again, this time by an appellant whose case is, by comparison, more ripe, or perhaps less ‘blemished’, prompting the court to render an on-point decision on the merits, and answering this 200+ year old question once and for all.

  31. Publius says:

    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.

  32. Mike says:

    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.

  33. Mike says:

    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?

  34. Publius says:

    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).

  35. Publius says:

    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?

  36. Publius says:

    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?

  37. Mike says:

    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.

  38. Writer says:

    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

  39. Neville Newman says:

    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.

  40. JimAZtec says:

    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.

  41. Publius says:

    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.

  42. Hugh says:

    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.

    ————————————————————-

  43. TJ says:

    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.

  44. TJ says:

    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.

  45. Publius says:

    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).

  46. TJ says:

    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.

  47. JimAZtec says:

    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.

  48. Publius says:

    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?

  49. JimAZtec says:

    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.

  50. Hugh says:

    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.