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. geoff hamilton says:

    In Reply to Mike: Agian the issue is not citizenship. Obama was born a citizen, per the 14th admendment. Article 2 section 1 is what a president must be. born of two citizens born in this country. natural born. The founders were concerned about a leader with dual citizenship. Olny an admendment can chage that. there are none. It is not citizenship

  2. Mike says:

    So, to summarize the three most recent posts,

    “No matter what more that two hundred years of US law says, and in spite of decisions of the US Supreme Court over the same period uniformly holding that a person born in the US is a citizen, what I say goes!”

    This has turned into a more-or-less interesting religious discussion of what US law SHOULD be, but we are beating a dead horse here, and rearguing issues that were decided in 1895 by the US Supreme Court in US v. Wong Kim Ark.

    All three posts overlook the fundamental holding in that case: A person born in the US is a US citizen, regardless of his mother’s citizenship, his father’s citizenship, and a host of other factors, unless his parents are foreign diplomats. And no matter what they “wish”, the meanings of the relevant terms were determined by the Supreme Court generations ago. JimAztec might want to keep in mind that resident aliens may join the military, and were subject to the draft until it was terminated after the Vietnam War.

  3. geoffrey hamilton says:

    In Reply to DadBode: Agian the issue is not that he is not a citizen . Obama is a citizen by birth. Thats the 14th admendment. Article 2 section 1 is the requirerment for pres. Natural born born of two citizens born in this country. Natural born is not a law it is a natural act. You are because both your parents were. He is a citizen he is not N B he is unconstitutional. He knows it. His citizen ship is by law not by a natural act. the child always inhearets the fathers birthright. thats reconized law.

  4. DadBode says:

    I continue to find this information continue to be sorely lacking:

    As given in § 1401. Nationals and citizens of United States at birth

    The following shall be nationals and citizens of the United States at birth:

    Conditions are clearly given.

    1. Only one parent has to be a natural-born citizen of the United States of

    America in order for a child to be a natural-born citizen.

    2. Obama’s mother was born in Kansas to natural-born citizen parents (one

    would have sufficed but there were two).

    3. If one parent is a natural-born citizen, the child is also a natural-born

    citizen, no matter where the child is born, even the planet Jupiter!

    I have never seen any definitive proof that Obama’s mother was NOT a natural born citizen. None. Ever.

    Until that is proven, he is a citizen.

    Case closed.

    And to those who claim he had dual citizenship:

    A child inherits citizenship from the country of the mother’s natural born birth. If the father is a UK subject, it doesn’t matter, except the child may possibly be able to obtain both a UK passport and a US passport. But that changes nothing. The child inherits citizenship from the country of the mother’s natural born birth.

  5. geoffrey hamilton says:

    In Reply to Mike: People the issues is not birth certificate, dont be smoke screened by Obama. He is using the equal protection clause in the 14th admendment to get around what is the Constituional requirerment for president. Natural Born. Perhaps the goverment is that ignorant of the Constitution and now they just hope this doesnt’ blow back on them. Obama is born of a British citizen, and is born a citizen per the 14th. If there is no admendment to change natural born and there is not it is the law. That simple. and no one seems to get it. He is willing to unsurp our

    Constitution for power and politics. God help us.

  6. JimAZtec says:

    In Reply to Mike:

    Didn’t the court in Elk say about “subject to the jurisdiction thereof”: “The evident meaning of these last words is not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other.”

    Could Wong Kim Ark’s parents vote or even be called up for military duty? Nope! It’s no different in residing within the jurisdiction of a court vs. being a subject of a court’s jurisdiction. Wong Kim Ark was born within the jurisdiction of California but not born subject to the jurisdiction.

    Obama was born subject to the jurisdiction of the U.K within the limits of Hawaii. If Obama as a minor and denied a lawyer for some crime the British govt. would have intervened on his behalf just as the US does for its own citizens abroad.

    Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, added on March 1, 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except “¦ children born on our soil to temporary sojourners or representatives of foreign Governments.”

    What is a “temporary sojourner”? It means a temporary resident. All chinese laborers and merchants were considered temporary residents because they were here to work or do business and were prevented by law and treaty from becoming citizens.

  7. Mike says:

    Anonymous’s valiant attempt to distinguish away the holding in the 1895 Wong case (remembering that Chinese custom is ‘last name first’), on the basis of the 1884 decision in Elk v. Wilkins (112 U.S. 94) must fail for the reasons stated by the Court in the Wong decision. The distinction might ‘hold water’ if Obama had been a full-blooded Native American whose parents had been exempt from taxes and resided on Indian land “not subject to the jurisdiction of the United States’ at the time of his birth, as was the case with the plaintiff in Elk v. Wilkins. However, Sen. Obama was born in Hawaii, his father was NOT an Indian, the senator was not born on Indian land where US law did not apply, and he was not exempt from US taxes. Here’s how the Wong court distinguished the decision in Elk v. Wilkins:

    “The only adjudication that has been made by this court upon the meaning of the clause, “and subject to the jurisdiction thereof,” in the leading provision of the Fourteenth Amendment is Elk v. Wilkins, 112 U. S. 94, in which it was decided that an Indian born a member of one of the Indian tribes within the United States, which still existed and was recognized as an Indian tribe by the United States, who had voluntarily separated himself from his tribe and taken up his residence among the white citizens of a State but who did not appear to have been naturalized, or taxed, or in any way recognized or treated as a citizen either by the United States or by the State, was not a citizen of the United States, as a “person born in the United States and subject to the jurisdiction thereof” within the meaning of the clause in question.

    “That decision was placed upon the grounds that the meaning of those words was “not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance;” that, by the Constitution, as originally established, “Indians not taxed” were excluded from the persons according to whose numbers representatives in Congress and direct taxes were apportioned among the several States, and Congress was empowered to regulate commerce not only “with foreign nations” and among the several States, but “with the Indian tribes;” that the Indian tribes, being within the territorial limits of the United States, were not, strictly speaking, foreign States, but were alien nations, distinct political communities, the members of which owed immediate allegiance to their several tribes and were not part of the people of the United States; that the alien and dependent condition of the members of one of those tribes could not be put off at their own will without the action or assent of the United States, and that they were never deemed citizens except when naturalized, collectively or individually, under explicit provisions of a treaty, or of an act of Congress; and therefore that

    “Indians born within the territorial limits of the United States, members of, and owing immediate allegiance to, one of the Indian tribes (an alien, though dependent, power), although in a geographical sense born in the United States, are no more ‘born in the United States, and subject to the jurisdiction thereof’ within the meaning of the first section of the Fourteenth Amendment than the children of subjects of any foreign government born within the domain of that government, or the children born within the United States of ambassadors or other public ministers of foreign nations.”

    “And it was observed that the language used in defining citizenship in the first section of the Civil Rights Act of 1866, by the very Congress which framed the Fourteenth Amendment, was “all persons born in the United States, and not subject to any foreign power, excluding Indians not taxed.” 194 U.S. 880-881, citing 112 U. S. 94, 99-103.

    Plainly, the court in 1895 did not believe that the holding in Elk v. Wilkins had ANY relevance to the citizenship issue in US v. Wong Kim Ark. Further, it appears highly unlikely that the modern Court would think it has the slightest relevance to Sen. Obama, and neither should any of the rest of us.

    Here’s a link to the Elk v. Wilkins decision:

    http://supreme.justia.com/us/112/94/case.html#94

  8. Anonymous says:

    In Reply to Mike:

    Wrong. “Subject to the jurisdiction” meant the same in 1898 as it did in 1874 (in Elk v. Wilkins). It meant Sole Political Allegiance, and no allegiance to any other foreign power (ala the Civil Rights Act of 1866). The 14th A gave those born “within” the juridiction of the US the choice to be “subject to the jurisdiction of the US” at the age of consent, which is the holding of Ark. Ark is deemed a “Citizen” not NBC. If a person is born “subject to the jurisdiction of the US” (parents are citizens), then he/she is a NBC. If you are born of an alien father, then you are born “within the jurisdiction”, but not “subject to the jurisdiction” of the US, You are a Native citizen (Obama’s term, and why doesn’t he use the term Natural Born citizen?), not a NBC. As far as ex post facto, there is none. Natural Born citizen means just what it always meant. the 14th A gave birthright citizenship, not necessarily Natural Born Ctizenship.

  9. Mike says:

    JimAztec said:

    “As long as Wong Kim Ark stands, there is no possible way to define American law under American rules when it comes to birth citizenship because the court will always say the 14th amendment must be interpreted under England’s old common law!”

    That’s simply not correct. In the Wong decision, the court relied not just on pre-Revolutionary English common law and statutory authority, but also on the US Constitution, US statutes, and over 100 years of American decisional authority to decide the case. That IS hardly “England’s old common law”, even in 1895 when the case was decided. The decision is a textbook Supreme Court constitutional decision, in order to interpret the text, the court does not cast about for some plausable interpretation of the text. Instead, it was necesary for the court to determine what the Constitutional text meant in 1787 when it was written, based on the legal meaning of the langauge at that time:

    “In Minor v. Happersett, the [chief justice] said ‘The constitution does not, in words, say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that.’ And he proceeded to resort to the common law as an aid in the construction of this provision.” 169 U.S. 655.

    “The interpretation of the constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.” Id.

    There is nothing new in this, and it has been the universal practice in US courts since the nation was founded; in order to decide what statutory or constitutional language means, a court must determine how the same language has been interpreted in the past. And because there was no American common law prior to the Revolution, it was necessary to look to the common law in the US prior to the Revolution, which was the common law of England.

    The Court then reviews the history of the pre-Revolutionary common law, and states its rule in the following language:

    “[B]y the law of England for the last three centuries, beginning before the settlement of this country, and continuing to the present day, aliens, while residing in the dominions possessed by the crown of England, were within the allegiance, the obedience, the faith or loyalty, the protection, the power, and the jurisdiction of the English sovereign; and therefore every child born in England of alien parents was a natural-born subject, unless the child of an ambassador or other diplomatic agent of a foreign state, or of an alien enemy in hostile occupation of the place where the child was born.

    “The same rule was in force in all the English colonies upon this continent down to the time of the Declaration of Independence, and in the United States afterwards, and continued to prevail under the constitution as originally established”. 169 U.S. 658.

    The Court then reviews a number of Supreme Court cases in which the Court esteblished the American common law, and followed this interpretation of what the framers in 1787 meant by “a natural-born citizen of the United States.”

    So what does this mean? It means that even if Sen. Obama had been born prior to adoption of the 14th Amendment, he would have been a ‘natural-born citizen’ and eligible to be president, even though his father was not a citizen at the time of his birth. And because his father was not enslaved, he would not have been excluded from citizenship under the decision in the Dred Scott case.

  10. JimAZtec says:

    Mike wrote: “In the Elg Case, the Supreme Court said that US law determines US citizenship, and that fact that a second country might be capable of claiming Ms. Elg as a citizen did not defeat or terminate her status as a natural-born US citizen.”

    And the Wong Kim Ark court said England’s common law determines US citizenship: “In this as in other respects, it [14th amendment] must be interpreted in the light of the common law, the principles and history of which were familiarly known to the framers of the Constitution.”

    As long as Wong Kim Ark stands, there is no possible way to define American law under American rules when it comes to birth citizenship because the court will always say the 14th amendment must be interpreted under England’s old common law! Garbage in, garbage out.

    The Elg Case is really irrelevant to whatever point you are trying to make because Ms. Elg’s father was a naturalized US citizen at her birth.

  11. Jose Guzman says:

    In Reply to Therese Daniels:

    Just keep talking Therese. The more you open your mouth (or keyboard), the more comfortable I feel that we’ll have the right and duly elected president on Jan. 20th.

    In case you didn’t guess, I am talking about President-elect Barack Obama.

  12. Mike says:

    On the common law issue raised in JimAztec’s latest post, I can hardly think that JimAztec is unaware that immigration law is the result of the accretion of legal decisions (e.g., common law), statutory law, and constitutional provisions and amendments. He has set up what is known in legal circles as a “straw man”, which is a hypothetical so extreme that it can easily be knocked down. I don’t think that any of us would question, even before his latest post, that JimAztec does not like any part of the Supreme Court’s decision in the Wong case. I hardly doubt he is alone in that. Nonetheless, it is one in a long line of decisions (both previous and subsequent) that defines the law in this important area, and like it or not, it is the law of the land until it is overruled. In the Elg Case, the Supreme Court said that US law determines US citizenship, and that fact that a second country might be capable of claiming Ms. Elg as a citizen did not defeat or terminate her status as a natural-born US citizen. The same reasoning would apply to Sen. Obama. And since Sen. Obama’s father was a British citizen at the time of Obama’s birth, the British could also have claimed him as a citizen.

    His point on the “black man” issue has cultural overtones, even if the legal issue was forever laid to rest by adoption of the 13th Amendment. Although Sen. Obama’s mother was ‘white’, he is universally referred to as a black man, and almost never as “half-black.”

    But I can hardly believe that it could be Sen. Obama’s race that has our friend in such a high dudgeon?

  13. JimAZtec says:

    In Reply to Mike:

    No amount of lipstick you try to put on Wong Kim Ark, it is still a BIG lying Pig. You think Wong Kim Ark is so right and controlling, fine; let’s take the absurdity of Wong Kim Ark to the next level, shall we?

    The majority said that “all persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States. In this as in other respects, it must be interpreted in the light of the common law.”

    But wait, there are other exceptions other than children born to ambassadors or foreign ministers. Under common law children born of parents of mixed races the offspring follows the condition of the father!

    So, under common law that J. Gray says is the common law of this country, and nothing has changed since Wong Kim Ark in the year 1898, Obama is not a citizen because he was born to a black father and a white mother. Under common law his citizenship is that of the father and would not be a natural born British subject no matter what.

    This principle prevailed under many laws of the states and even the federal govt. But since the 14th amendment merely reaffirmed the common law under Wong Kim Ark (cough), Obama can not be a citizen of the United States.

    Are you sure you want to continue treating Wong Kim Ark as controlling law?

  14. Mike says:

    In reply to Todd, he might want to keep in mind that a 5-4 vote in conference would be only a vote to hear the case, and NOT a vote on the merits. This could just as easily be attributed to a desire to reaffirm existing law as to rewrite decisional authority dating back to the first days of this country. And Todd might also remember that a decision that Obama is not a NBC would result either in the vice-president becoming president, or a new vote by the democrat-dominated electoral college. I think it is highly unlikely that Sen. McCain would be elected by that body, given its present makeup. However, it is possible that Sen. Clinton would become the first woman president.

    On the issue Todd raised about the common law, I think that the point made in the Wong decision is that at the time of the revolution, the common law of the colonies and future states was the same as the common law of Great Britain. Thereafter, the two diverged in response to diverging judicial decisions. However, as you would see from a review of the Wong decision, there was a substantial inter-relationship between the two, which has lessened over time. One major difference is that the US has a written constitution. One part of that, the 14th amendment, directly contradicts the point JimAztec makes about the law of New York, although even the most casual review of the Wong decision would show him that it was not accurate, even before the 14th amendment was adopted.

  15. Todd says:

    In Reply to Sid Davis:

    SCOTUS will not address the issue in open court, period. The reason is simple: The liberal wing in no way want to have to defend Wong Kim Ark because it can’t be defended without ignoring the truth as did Justice Gray was forced to do. Plaintiff’s will point to the same arguments as Madison has and the court would be in the uncomfortable position of having to say all that does not matter! The common law of England still prevails throughout the country! They might even suggest the 39th Congress could not have meant subject to the jurisdiction to mean political jurisdiction.

    And then there is the uncomfortable prospect McCain would have to be declared the victor, leaving the potential retiring justices being replaced with a conservative. Self-preservation, baby!

  16. Sid Davis says:

    I have been following these cases at the SCOTUS relating to the natural born citizenship issue and Obama.

    The pattern seems to be that initially the applications are denied by a “liberal leaning” Justice (so far Souter, Ginsberg, and Kennedy) and when resubmitted to a “conservative leaning” Justice (so far Thomas, Scilia, Roberts) they are referred to conference. In conference so far two have been denied (Donofrio and Wrotnowski), one has not been reported yet (Berg cert), and two are still scheduled for conference (Berg injunction and Lightfoot). I understand yet another one has just been denied (Broe) by Souter, and probably will be resubmitted to another Justice.

    It takes the vote of four Justices in conference to accept the case for review, so obviously less than four, if any, are voting in conference to accept the cases.

    So what is going on?

    At first I thought there was a contest going on between the two wings of the court and that maybe the conservative wing (Thomas, Scilia, Roberts, and Alito) were case shopping to pick one where the other Justices could not justify ruling for Obama on a procedural technicality.

    I, perhaps naively, thought that the conservative Justices referring the cases to conference actually thought they had merit, but it has now occurred to me that they are using the referral to conference as a means to trash can the cases since denial in conference cuts off any further resubmission.

    Another possibility is that the conservative Justices believe that if they take the case that ultimately the vote will be 5/4 in favor of Obama being a natural born citizen, and that they do not want to take the heat for the consequences of the country having a President where 4 Supreme Court Justices voted that he was not Constitutionally qualified; the wussy cop out alternative.

    I do not understand the significance of the Court taking a case before verses after Obama is sworn in, and if that is involved in their consideration. It did occur to me that once Obama is sworn in that if they then found him not qualified that Biden would become President, and that they might be waiting till then so that they could not be accused of playing politics; a Democrat would still be President.

    It just seems strange that Roberts, who will be swearing in Obama, could ethically or legally go forward and participate in the “coronation” if he has concluded that Obama is disqualified, yet the case he referred to conference (Lightfoot) will not be in conference till Jan. 23, after Obama is sworn.

    My best guess is that they are using referral to conference as a means to quash these cases and that they do not intend to actually address the issue in open Court.

    Comments?

  17. JimAZtec says:

    Mike (#1074) said: “Whew! The decision goes chapter and verse through the legal history supporting the rule of law prior to adoption of the 14th Amendment, that citizenship was determined by place of birth, except for children of diplomatic personnel or foreign occupiers of US soil, and that otherwise, children of aliens born on US soil were US citizens”

    Actually, the decision did no such thing. The cases singled out by the Wong Kim Ark court simply rehashed the English rule prior to the revolution. American judicial thinking rested on Lynch v. Clark and the courts were too stupid to appreciate the fact Lynch v. Clark was overturned by statue. The court was very clear in stating the only reason they were resorting to the common law was because New York had no law on the books in regards to babies born to aliens.

    The fact the conclusion in Lynch v. Clark was overturned and an alien no longer could never again claim citizenship by simply being born in the state of New York just further proves how inept in law Horace Gray really was.

  18. Mikey says:

    In Reply to Mike:

    With all due repect, although Justice Gray wrote alot about the Natural Born Citizen issue, he did not deem that Ark was a NBC, just “citizen”, and this case was not about the qualification to become POTUS.

    “The evident intention, and the necessary effect, of the submission of this case to the decision of the court upon the facts agreed by the parties, were to present for determination the single question, stated at the beginning of this opinion, namely, whether a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States. For the reasons above stated, this court is of opinion that the question must be answered in the affirmative.”

    In Perkins v. Elg SCOTUS gave specific examples of NBCs.

    They even noted that Steinkauler, born of citizen parents, had the ability to be elected POTUS, while Bohn, born of alien parents, was deemed “American Citizen”, not NBC.

  19. Mike says:

    Just found and read much of the Supreme Court’s decision in Wong Kim Ark (1898) 169 U.S. 649.

    Here’s a link to the decision:

    http://caselaw.lp.findlaw.com/scripts/getcase.pl?navby=case&court=us&vol=169&page=649

    Whew! The decision goes chapter and verse through the legal history supporting the rule of law prior to adoption of the 14th Amendment, that citizenship was determined by place of birth, except for children of diplomatic personnel or foreign occupiers of US soil, and that otherwise, children of aliens born on US soil were US citizens:

    “In U. S. v. Rhodes (1866), Mr. Justice Swayne, sitting in the circuit court, said: ‘All persons born in the allegiance of the king are natural- born subjects, and all persons born in the allegiance of the United States are natural-born citizens. Birth and allegiance go together. Such is the rule of the common law, and it is the common law of this country, as well as of England.’ ‘We find no warrant for the opinion that this great principle of the common law has ever been changed in the United States. It has always obtained here with the same vigor, and subject only to the same exceptions, since as before the Revolution.” Ibid, 169 U.S. 662-663 [cit. omitted.]

    The Court also held that adoption of the 14th amendment did not restrict this rule:

    “The first section of the fourteenth amendment of the constitution begins with the words, ‘All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the state wherein they reside.’ As appears upon the face of the amendment, as well as from the history of the times, this was not intended to impose any new restrictions upon citizenship, or to prevent any persons from becoming citizens by the fact of birth within the United States, who would thereby have become citizens according to the law existing before its adoption. It is declaratory in form, and enabling and extending in effect. Its main purpose doubtless was, as has been often recognized by this court, to establish the citizenship of free negroes, which had been denied in the opinion delivered by Chief Justice Tae y in Scott v. Sandford (1857) 19 How. 393; and to put it beyond doubt that all blacks, as well as whites, born or naturalized within the jurisdiction of the United States, are citizens of the United States.” Ibid, 169 U.S. 675-676 [citations omitted.]

    The Court also held that “natural-born” and “native-born” are synonomous.

    Publius and many commenters on this thread and elsewhere may disagree with the holding, but the case is dispositive of Sen. Obama’s right to be president. Given the long history of this line of decisions, I believe that it is extremely unlikely that even the present activist court would overturn a 110 year old decision or try to overturn the election results.

  20. Steve N. says:

    In Reply to Matt L.:

    This question is regarding your post #1033 on 12/23/2008

    Like you, I have become unshakeably convinced that Vattel’s definition for ‘natural born citizen’ is what the founding fathers had in mind when they entered the term into the Constitution.

    But I’m not familiar with the the origin of the further subdivision you listed regarding the mother’s marital status,

    “2) born to a mother who, as of the moment the individual in question is born, was either: a) married to a U.S. citizen, or b) an unmarried U.S. citizen”,

    when Vattel’s text merely says

    “of parents who are citizens”.

    After all, the child of unwed parents still has a father who is considered a parent and may be sued for child support, so it seems to me he should still be relevant to the child’s citizenship status.

    Because if the allowance for an unwed mother is correct, it might provide the loophole that Obama seeks, in that at the time of Barack Obama Senior’s marriage to Stanley Ann Dunham in 1961, he was already married to a woman named Grace Kezia Obama back in Kenya with whom he had two children, and whom he never divorced; in fact, after completing his education in the U.S. he returned to Kenya and bore two more children with her. The marriage to Stanley Ann Dunham could therefore be rendered invalid on the basis of bigamy, meaning Barack Obama was therefore born on U.S. soil to a single unwed mother who was a U.S. citizen, thus meeting your test for a natural born citizen.

  21. caolila says:

    I have lost all respect for SCOTUS. They should have addressed the meaning of Natural Born Citizen long ago. There is great danger in the lack of interpretation … Truly, now there is nothing stopping a child, born on US soil to two alien parents and subsequenly raised in a foreign country, from ultimately becoming POTUS. All the child must do is declare US citizenship when coming of age, and move to the United States. It is NATURAL that our true allegiance stems from our upbringing. Regardless of the geography of birth, a person raised in a foreign country cannot have the same conviction of allegiance to the United States, as someone raised in this country.

  22. tanarg says:

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

    —-

    Except to the degree that “natural born” was something they could never be because of their prior loyalty to the King. Thus, the framers were referencing an “alien influence,” though no longer in existence, that meant they, though born here, were not able to run for president without the grandfather clause.

  23. tanarg says:

    And here we are again…

    My, my, January 20 is literally around the corner, and one can only wonder if the Supreme Court might deign to get involved after that date.

    Anyone have any brilliant ideas of what to do at this point?

  24. PN says:

    In Reply to Jeff, Esq.:

    Our forefathers used the Law of Nations to help frame our Country.

    Jusitce Scalia used it earlier this year in an opinion on right to bear arms.

  25. Jim Delaney says:

    In Reply to Therese Daniels: Quite unfortunately, Ms. Daniels, the Constitution WILL be raped and pillaged with, once again, relative impunity. I fear for my country, as should all Americans, whether they be of the liberal or conservative persuasion.

    “All tyranny needs to gain a foothold is for people of good conscience to remain silent.” Thomas Jefferson.

    Let’s pray–and prod–our “representatives” and our courts to rigorously and selflessly uphold the Constitution.

    Perhaps Jefferson was also prescient when he said ” Every generation needs a new revolution.” Are we yet at that point?

  26. JimAZtec says:

    Jeff, Esq. says “the United States of America is not governed by or through the “laws of nature” and if you think that the ‘laws of nature’ justification would survive strict or intermediate scrutiny, you’re nuts.”

    That’s right, lawyers and liberals desire us to be governed through the edicts of 5 clerics dressed in black robes, not written laws or enactments by the people themselves.

    Sen. Jacob M. Howard: “every person born within the limits of the United States, and subject to their jurisdiction, is by virtue of natural law and national law a citizen of the United States.”

    In Congress, July 4, 1776:

    “When, in the course of human events, it becomes necessary for one people to dissolve the political bands which have connected them with another, and to assume, among the powers of the earth, the separate and equal station to which the laws of nature and of nature’s God entitle them, a decent respect to the opinions of mankind requires that they should declare the causes which impel them to the separation.”

    John Adams: “[N]o doubt, that terrible and critical moment when the Colonies of North America, groaning under the intolerable weight of the chains with which the boundless ambition of Great Britain had loaded them, were forced into a just and lawful war to recover the use and enjoyment of that liberty to which they were entitled by the sacred and unalienable laws of nature.”

  27. Jeff, Esq. says:

    “A child born to an American mother and alien father could be said to be a citizen of the United States by some affirmative act of law but never entitled to be a natural-born citizen because through laws of nature the child inherits the condition of their father.”

    That’s fine, except the United States of America is not governed by or through the “laws of nature” and if you think that the “laws of nature” justification would survive strict or intermediate scrutiny, you’re nuts.

  28. Therese Daniels says:

    In Reply to JimAZtec:

    AFTER ALL IS SAID AND DONE IT BOILS DOWN TO THIS

    There are no misunderstandings here. Sufficient accurate facts and information have come forward that establish beyond a shadow of a doubt that BARRY SOTOERO, AKA BARACK HUSSEIN MOHAMMED OBAMA IS NOT ELIGIBLE TO BE US PRESIDENT. He is not eligible under the USA Constitution, Article II sec.–. Because he does not meet the qualifications of NATURAL BORN CITIZEN.

    BARRY SOTOERO IS ABOUT TO BECOME A USURPER

    IT APPEARS THERE IS NOT ONE PERSON IN OUR GOVERNMENT WITH THE INTEGRITY TO STOP HIM. OH, SHAME, SHAME, SHAME, PISPER SHAME!

    It is no longer a question whether or not Mr. Sotoero is qualified. No matter which way liars try to convolute or twist the facts, it still boils down to: BARRY SOTOERO IS NOT ELIGIBLE TO BE PREIDENT. HE IS A USURPER. HE IS ALSO AN ILLEGAL ALIEN. THE ENTIRE WORLD KNOWS THESE FACT.BARRY IS DOES NOT LEGALLY QUALIFY TO BE PRESIDENT. So does the collection of conspirators who are insisting Sotoero be inaugurated know Barry is not eligible.

    The only real question is will what is left of the government that has the authority to stop this treason against America have the courage to do what it right? It is the choice of the departments of the government who have this authority to either uphold and defend the US Constitution as it is written or betray the people of American by failing to protect the national security of America and permit a USURPER TO STEAL THE AMERICAN GOVERNMENT.

    Will they, (Congress, Senate, Supreme Court, President Bush, and the military) do right by American? Will they do what they should do. What they should do and the only thing they should is save American and forbid Sotoero to take the oath, arrest and put in him jail without bail. Then after a hearing deport him to whatever country his is a citizen. Will these alleged pillars of government look the other way, consciously violate the US Constitution by allowing a traitor to become a usurper? Will they betray their oath to uphold and protect the Constitution, America, and the American people?

    This and only this is the question every patriot American is hanging by its nails between now and January 20m 2009. While Sotoero supporter are using the promise of major riots in the street if the do not follow the “will or the people”, American will face the reality of a greater crisis””A REVOLUTION.

    So which will it be””Uphold and protect the Constitution or rape and violate it; Permit a Usurper in the White House or arrest and throw the bum our; Riots in the streets or an all our revolution?

    USA patriots-shout

    http://www.blogtalkradio.com/vos

  29. PN says:

    Open Audio Letter to Congress

    My presentation to Congressman Tom Cole with the audio from a vietnam vet from Arizona.

    He’s one heck of a Patriot.

    http://www.youtube.com/watch?v=kjhkHTcU2ug

  30. JimAZtec says:

    Interesting quote from Madison’s “What subject to the jurisdiction thereof really means”:

    Chairman of the House Judiciary Committee (39th Congress), James F. Wilson of Iowa, added on March 1, 1866: “We must depend on the general law relating to subjects and citizens recognized by all nations for a definition, and that must lead us to the conclusion that every person born in the United States is a natural-born citizen of such States, except … children born on our soil to temporary sojourners or representatives of foreign Governments.”

  31. JimAZtec says:

    FWIW: Judge Morrow in the case of Wong Kim Ark in the United States District Court for the Northern District of California (1896) said:

    Counsel for the United States have argued with considerable force against the common-law rule and its recognition, as being illogical and likely to lead to perplexing, and perhaps serious, international conflicts, if followed in all cases. … The doctrine of the law of nations, that the child follows the nationality of the parents, and that citizenship does not depend upon mere accidental place of birth, is undoubtedly more logical, reasonable, and satisfactory, but this consideration will not justify this court in declaring it to be the law against controlling judicial authority.

  32. Mikey says:

    In Reply to Mike:

    Wong Kim Ark does NOT conclude that Ark is a Natural Born citizen. It beats around the bush taking about NBC, but in the conclusion states that she is merely a “citizen”, not a Natural Born Citizen.

    Elg v. Perkins, on the otherhand, upholds that Elg is a “Natural Born Citizen” due to her parents being Naturalized citizens at the time of her birth in Brooklyn. It also affirms an earlier case of Mr. Steinkauler, who by virtue of his parents naturalized status at the time of his birth, was a “Native born Citizen”. In the example of Bohn though, because his parents weren’t citizens, he was said to be an “American citizen”. There is a clear differentiation.

  33. JimAZtec says:

    Some misc. items I found researching that is interesting:

    Laws of Mexico [1895]

    Article 1.”” The following are Mexicans:

    I. Those born in the national territory, of a father who is a Mexican by birth or naturalization.

    II. Those born in the national territory, of a Mexican mother and of a father who is not legally known under the laws of the Republic. Those born of unknown parents, or of parents of unknown nationality, shall be classed under this head.

    Article 2.”” The following are aliens:

    I. Those born outside of the national territory who are subjects of foreign governments, and who have not been naturalized in Mexico.

    II. The children of an alien father, or of an alien mother and unknown father, born in the national territory, until they reach the age at which, according to the law of the nationality of the father or of the mother, as the case may be, they become of age. At the expiration of the year following that age they shall be regarded as Mexicans, unless they declare before the civil authorities of the place where they reside that they follow the citizenship of their parents.

    (Geez, can it get any simpler then this?)

    LAW AND PROCEDURE VOLUME VII (1903)

    WILLIAM MACK And HOWARD P. NASH

    THE AMERICAN LAW BOOK COMPANY

    3. Children Of ALIENS. The child of a citizen father and of an alien mother is a citizen; but one born of an alien father and of a citizen mother is not a citizen.

    This appears to be the international view of Obama’s citizenship:

    Article 2. An illegitimate child which, during its minority, is acknowledged by its father only, or simultaneously by its father and its mother, or whose parentage is settled by the same judgment with regard to both, follows the nationality of its father on the day of its birth; if it has been acknowledged only by its mother, it takes the nationality of the latter, and retains it even when its father recognizes it later. (RESOLUTIONS OF THE INSTITUTE OF INTERNATIONAL LAW (1916))

  34. JimAZtec says:

    In Reply to Mike:

    I was not aware of this “long line of decisions” over the meaning of “subject to the jurisdiction thereof.” I was under the impression the Supreme Court had never addressed its meaning. Wong Kim Ark majority never addressed the issue for obvious reasons 🙂

    Would had been nice if Wong Kim Ark was based on American law and not England’s. 🙂

  35. Hugh says:

    In Reply to Mike:

    We really do not know if Obama is born in the United States since we have not seen his vault copy birth certificate. The COLB from Hawaii is not adequate. The crux of the matter is that Obama is most likely born in Kenya with a foreign father, and later adopted by an Indonesian father.

    Whether SCOTUS act on any of the lawsuits Obama is simply not a natural born citizen.

  36. Mike says:

    Jim AZtec said:

    “ELG v. PERKINS is a different subject matter based on a totally different issue. The Secretary of Labor and the Commissioner of Immigration had the correct view of law in the case in that Ms. Elg was not a citizen of the U.S. and should had [sic] been deported. Any case that draws conclusions from the clearly proven incorrect judgment in Wong Kim Ark is always going to be suspect and void of facts.”

    Let’s see, we have a history of US Supreme Court decisions dating back over 100 years interpreting the 14th amendment language in an inclusive sense, and uniformly holding that persons born in the US are citizens. Does anyone want to remind Mr. AZtec that the law is formed by a process of drawing inferences from similar cases over the years. And that the Supreme Court has uniformly upheld the Wong decision over the long period of time since it was decided.

    Mr. AZtec is eager to state his disagreement with this long line of decisions, but fails to state any basis in law or fact – other than his disagreement with the outcome – for his opinion. OK, we know where you stand. But it would be helpful to state some basis from law, fact or statutory language to persuade us that this is based on something other than personal prejudice.

    Now, looking at the decisions, what do we know? The Wong Kim Ark case tells us that a person born in the US is a US citizen, whether or not his parents were US citizens. After that, the Elg case, in which the Supreme Court held that Ms. Elg, who was born in the US and was the daughter of naturalized US citizens, was also a citizen – seems rudimentary, which might well explain the lower court decisions in the case, which uniformly upheld Ms. Elg’s citizenship claims. The upshot of this long line of citizenship cases make the chances extremely remote that the Supreme Court would attempt to block Sen. Obama from becoming president on the basis of his status as a US citizen, because under this long line of precedents, he IS a natural born citizen.

  37. Anonymous says:

    In Reply to JimAZtec:

    I agree somewhat….

    But it’s not a different subject matter, but an aspect of a larger whole. That being citizenship. And the opinion did not firmly set upon the Wong Kim Ark opinion (though clearly further confusing the issue with it’s mixed usage of Native & Natural), but on multiple other cases and laws (Steinkauler’s Case, 1875)(Moore’s International Law Dig.)(etc.) as well.

    It’s fairly easy to see that this case was one of several that confused the citizenship issue.

    Because of Natural Born Citizenship being “assumed” by the court, but I believe this was partially influenced by the older legacy laws of a man giving citizenship to his wife as well. This umbrellaed the children in NBC-hood “correctly” when that ‘law’ existed, however it was incorrectly held-over, or assumed, thus causing the mess today.

    De Vattel’s book makes the issue clear without the sexism (currently) involved.

  38. JimAZtec says:

    In Reply to Mike:

    ELG v. PERKINS is a different subject matter based on a totally different issue. The Secretary of Labor and the Commissioner of Immigration had the correct view of law in the case in that Ms. Elg was not a citizen of the U.S. and should had been deported. Any case that draws conclusions from the clearly proven incorrect judgment in Wong Kim Ark is always going to be suspect and void of facts.

  39. Mike says:

    After reading the linked portions of the decision in the Elg Case, I am even more convinced than before that Sen. Obama is a “natural born citizen,” as that term is used in the US Constitution. In Elg, CJ Hughes cites many of the earlier decisions already discussed in the comments to this article. I also think that Prof. Chin’s article glosses over an important point in Sen. McCain’s case, which is that under US law, the child of US citizens was always considered to be a US citizen from birth. I think that there may well be a related category of “Constitutional citizenship” which is inherent, and Congress would have only limited power to restrict this category of citizenship. Instead, I would describe the statutes cited in Prof. Chin’s article as either clarifying the issue when it was otherwise unclear, or as expanding citizenship to persons who would otherwise not be citizens.

    I thought the legal brief filed in the Hollander case also raised a nuimber of issues relating to jurisdictional and juridical issues not previously addressed, all of which appear to support the eligibility of both Sen. McCain and Sen. Obama to serve as our president.

  40. Frank Lake says:

    In Reply to Kris:

    For the SCOTUS not to hear it makes ‘some’ sense as their is a constitutional provision covering the party’s responsibility for vetting their person (though it’s clear that the States can do vetting on their own, which frankly has lead to this to begin with).

    McCain’s attorneys reached VERY hard to make it seem like he was an NBC didn’t they! However no one can make someone NBC after the fact. It would take a Constitutional change to make it happen.

    http://www.scribd.com/doc/9258498/Why-Sen-John-McCain-Cannot-Be-President

    I disagree with the Professors final point though as ‘fairness’ is a very transient thing with protection of the Nation coming first. Which is why Lincoln was so torn over what he had to do.

  41. Kris says:

    If Mr. McCain’s attorneys are correct, the SCOTUS will not consider any case until Congress certifies on Jan 8. What is the procedure to file suit on or after Jan 8?

    Who would one sue and for what?

    Thanks a million!

    McCain’s reply Hollander v. McCain: http://electionlawblog.org/archives/Hollander-M2DisFAC.pdf

  42. Frank Lake says:

    The case of Perkins v. ELG, 307 U.S. 325 (1939) weaves a rather clear cut definition of what a naturalized citizen is and a citizen born who can run for POTUS office is. However it muddy’s up the terminology slightly with the terms Native & Natural.

    The case is rather large, but here’s a part of it and the final court opinion:

    http://www.theobamafile.com/PerkinsVELG.doc

    IMO, given the weight of evidence it’s pretty clear cut what the Founders meant with the NBC wording. However due to the existing amount & weight of anti-racism & anti-sexism SC judgments & opinions. The SC would rather allow a non-NBC to attain the position of POTUS rather than actually be exercise their authority.

  43. Big Ben says:

    WOW, Berg v Obama is Scheduled TWICE for SCOTUS Conference on Jan 16. What the heck???

    There has got to be more than meets the eye behind closed doors for this issue to keep being scheduled.

  44. Matt L. says:

    In Reply to Mike:

    The very term “natural born citizen” is right there in print (albeit in French) in de Vattel’s treatise published in 1758, and in subsequent English language editions of the work, all very well thumbed by the framers. Vattel was Swiss, so his overall philosophy was informed by continental Europe’s tradition of civil law. However, a key characteristic allowing him to net such a wide and distinguished audience in the American colonies may have been his clear antagonism to Britain’s tradition of common law.

    The framers and ratifiers of the Constitution knew first hand what it meant to be forced to eat the then-rotten fruit of the British common law when it came to the way in which the Colonies were governed. As a result, anyone who believes that the Article II, Section 1 term “natural born citizen” was derived from, or directly related to, the British term “natural born subject” rightly faces an enormous hurdle when it comes to proving their case. Far from embracing it, the framers were desperately trying to make a clean break with the British example.

    If the arguments set forth in Mr. Madison’s article and the following comments have merit, the following appears to be true:

    1) The first child born in the United States after the ratification of the U.S. Constitution in 1787 to a married U.S. citizen father (de Vattel) or, if applicable, to an unmarried U.S. citizen mother (von Bar) was our first “natural born citizen”. Because of the minimum age requirement, it was not until 35 years later that anyone in this class of citizen would be constitutionaly eligible to run for president.

    2) In 1789, the office of POTUS was available to an individual who was at least 35 years old, was a citizen of a U.S. state at the moment the U.S. Constitution was ratified, and had resided in a U.S. state for at least the past 14 years (i.e., from the beginning of the Revolutionary war in 1775 onward). For later presidential candidates, the “start date” of the residency requirement marched forward in time (1779, 1783, 1787, etc.).

    3) With the death of the last U.S. citizen born before the moment the U.S. constitution was ratified (let’s say, 1890) the pool of potential POTUS candidates was finally purged of potential “grandfather clause” candidates so as to only contain those who were born in the United States to married U.S. fathers or unmarried U.S. mothers.

    If those who take issue with Mr. Madison’s position are to be taken seriously, this is where the break occurs. They claim that the 1898 SCOTUS decision in U.S. v. Wong Kim Ark decision worked an important change to the originally-understood meaning of the Article II, section 1 term “natural born citizen”.

    While this notion is not necessarily intellectually bankrupt, it suffers from the fact that, as of yet, it does not bear the imprimatur of the U.S. Supreme Court. In other words, there is actually no precedent in terms of on-point decisional law from the Supreme Court to support this notion, however true it may ring in the ears of certain interested parties today.

    Turning to the particular circumstances of Mr. Wong Kim Ark, he was born to parents who, though permanent residents of the U.S. when he was born, nevertheless remained subjects of the Emporer of China. In its decision in U.S. v. Wong Kim Ark, SCOTUS clearly articulated a broader scope of the 14th Amendment than had previously been recognized. In doing so, SCOTUS considered it important that Mr. Ark’s parents had demonstrated a clear attachment to the United States. In specifically recognizing Mr. Wong Kim Ark as a U.S. citizen under the 14th Amendment, SCOTUS laid down the general rule that any individual (other than children of foreign rulers and diplomats) born on U.S. soil to permanent resident alien parents is a “born” citizen of the United States pursuant to the 14th Amendment.

    Not satisfied with mere citizenship privileges for such individuals based on SCOTUS’s construction of the 14th Amendment, Mr. Madison’s interlocutors now claim that this newly-recognized class of U.S. citizens must also be recognized as Article II, Section 1 “natural born citizens”, fully eligible to run for and assume the office of POTUS. But in order for SCOTUS to endorse such a theory, it will need to do so in a legitimate fashion, in a decision based on the results of an actual case or controversy brought before it, and taking into account all of the circumstances that gave rise to their positive citizenship decision for Mr. Wong Kim Ark, and not just some of them.

    That is, if SCOTUS is to be called upon to loosen up the parental citizenship requirement on the one hand (so as to allow at least some individuals born to one or more non-citizen parents to assume the office of POTUS), it will need to hold these new members of the “natural born citizen” class to the special requirement that they be born to two permanent resident parents. Needless to say, and unfortunately for Mr. Obama, this is a result that does not necessarily accommodate individuals born to foreign fathers present in the United States on temporary student visas.

    Mr. Madison’s detractors should carefully consider Chief Justice Fuller’s dissenting opinion in U.S. v. Wong Kim Ark. In it, Chief Justice Fuller firmly objected to the notion, seemingly raised (but not truly pursued) by the author of SCOTUS’s majority opinion in that case (Justice Horace Gray), that the only thing “natural born” ever meant in the first place was that the individual in question was born on U.S. soil: “[I]t is unreasonable to conclude that ‘natural born citizen’ applied to everybody born within the geographical tract known as the United States, irrespective of circumstances; and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay, or other race, were eligible to the presidency, while children of our citizens, born abroad, were not.”

    Note that Justice Fuller is not agitating in favor of recognizing foreign-born U.S. citizens as eligible to the presidency. Far from it. Rather, he is attempting to illustrating the absurdity of interpreting the 14th Amendment to mean that children born on U.S. soil to two non-citizen resident alien parents are POTUS-eligible in light of what he clearly considers to be an established, irrefutable fact: That children born overseas to two U.S. citizen parents (read: Mr. McCain) are POTUS-ineligible.

  45. Jim Delaney says:

    In Reply to Matt L.: Don’t know where you came from, Matt; but, thanks very much for stepping up on this. It was helpful. And you write VERY clearly as well.

    Mainly to clarify the issue for myself, on my nascent blog, Opinerlog, and relying a good deal on this blog and its commentary, I tried to summarize the issue. Not sure iI did it justice, but I tried.

    I have also been discussing this issue with some friends who are either unfazed, perplexed, burdened with the belief that all is lost anyway so why bother, those who are fearful of the consequences in the streets should the issue be seriously raised, and those who think early dementia is setting in on my part.

    Well, I’ll admit to the possible dementia, but I won’t admit that so many bright, stable guys, as yourself, are nincompoops, blindly partisan hacks or deeply troubled conspiratorial theorists either. It’s a burning issue which deserves the full light of day, come what may.

    I wish some one–or more–of the luminaries about whom you speak would but muster the courage to bring this up publicly. But, frankly, I honestly believe political courage is a rare commodity anymore. In truth, I think it’s dead, symptomatic of a declining America. So very tragic.

    Also, given his baggage, I don’t think Berg helped the cause at all. We need some stellar Americans whose character and history are impeccable.

    Truthfully, for the first time I genuinely fear for the security of American values and traditions. In the malaise in which our country now finds itself, the Constitution no longer appears sacrosanct, and oaths to uphold it have become empty the-means-justifies-the-ends words. Power alone is their God. And I see it day in and day out on the news and C-Span channels. My stomach is in knots watching our political leadership double-speak and obfuscate. Sickening.

    I, for one, have written my congressional “reps” and asked them to openly question the constitutional eligibility of Obama to assume the Presidency on January 20th. I believe that if one Senator and one Rep step up, the issue can be dealt with head-on before inauguration. But, again, I just don’t see that level of courage present in those once venerable halls of Congress.

    In one’s headlong pursuit of power these days, it seems now that nothing is sacred. Nothing is off-limits. Unfortunately, that cynicism is rampant on both sides of the aisle. So, where do little guys like me turn? What recourse do we really have?

    Sorry for rambling. And, thanks again.

  46. Matt L. says:

    In Reply to Jim Delaney:

    You are not going wrong at all. But you are clearly responding in a natural and honest fashion to questions raised.

    I sense that you are also perplexed at the apparent absence of honest, straightforward, and satisfying/satisfactory answers to these questions. Your confusion is all the more justified based on the fact that those who you might expect to be knowledgeable about the circumstances we are discussing, and whose opinions, if presented publicly, would presumably carry much weight (e.g., legal luminaries, high public officials, etc.), have, more or less to a person, been stone cold silent on this issue.

    Ordinarily, this is a signal that justifies a conclusion that the issue in question is not really an issue, but rather, amounts to nothing but misguided ramblings on the part of people who should find something better to do with their time. But there are some ‘twists’ to the current circumstances which ought to give thoughtful, intelligent people with no particular political axe to grind pause to consider whether a different conclusion is justified.

    The most relevant and compelling sources of law (notably, the relevant legal treatises penned during the colonial period by de Vattel and von Bar, respectively) appear to demonstrate that what our framers intended when they inserted the term “natural born citizen” into the Article II, Section 1 presidential eligibility clause (PEC), and what the ratifiers of the original Constitition (together with the first ten Amendments) understood when presented with the final document, is that the office of POTUS was unavailable to any otherwise qualified individual who cannot also show that he or she was both: 1) born on U.S. soil, and 2) born to a mother who, as of the moment the individual in question is born, was either: a) married to a U.S. citizen, or b) an unmarried U.S. citizen.

    Mr. McCain was born in a Panamanian hospital in Colon, Panama. Mr. Obama was born to a father who was a foreign national (a citizen of Kenya). Since Mr. McCain was not born on U.S. soil, he presumably fails prong (1) of the above test. Since Mr. Obama was born to a mother who, though married at the time he was born, was not married to a U.S. citizen, he presumably fails prong (2) of the above test. As a result, prior to November 4th, we were left in the unusual (to say the least) situation in the current national election cycle in which neither of the major party candidates was likely constitutionally eligible to assume the office of POTUS. If neither of these candidates was POTUS-eligible to begin with, neither the results of the November 4th national election, nor the fact of the December 15th Electoral College vote, can be be considered to have solved the problem. Neither will an inauguration on January 20th bring relief: The stringent requirements of the presidential eligibility clause apply equally to sitting presidents and presidential candidates alike.

    To add insult to injury, only this month did we learn that Chester A. Arthur (who became our twenty-first president in 1881 upon the assassination of the previous President, James Garfield), was born to a non-citizen father. For those who are only now realizing this, CAA’s father, William Arthur, was still a British subject at the time of CAA’s birth in 1829. Naturalization records from Washington County, New York show that he did not become a U.S. citizen until 1843. As a result, the legitimacy of CAA’s presidency from 1881-1885 (including any and all U.S. laws that became law under his signature) will now be drawn into question.

    As one astute observer has recently observed, it doesn’t matter how much glory a stadium full of fans heaps on the slugger who hits the game-winning, walk-off grand slam. If you fail to touch first base on on your leisurely trot around the bases, and the pitcher chooses to toss the ball to the first basemen, who then steps on the bag, you will be called out. No questions asked. Or as the SCOTUS saying goes, “though the heavens may fall…”

    If ever silence on the part of legal luminaries or high public officials in the United States could be regarded as something less than golden, the time would appear to be now (prior to January 20th). Is it too much to ask for at least one person meeting this description to weigh in on this issue?

    For any one of the above-categorized persons, it may indeed be too much to ask. The notion of speaking up now, in the absence of a compelling personal reason for doing so, could seem like a career-threatening move of the highest order for folks in high places. To be heard publicly to suggest that the current theory (i.e., that Mr. Obama’s lack of a U.S. citizen father may render him ineligible for the office of POTUS) may actually hold water is to invite public inquiry as to what one’s ultimate personal opinion is on the matter. To withhold one’s personal opinion after raising the issue is to demonstrate a lack of intellectual courage. This is a label nobody in public life wishes to wear if they can avoid it.

    I seems rather more likely that most, if not all individuals in positions of public trust or authority that have seriously considered this question (whether Mr. Obama’s lack of a U.S. citizen father renders him ineligible for the office of POTUS) have concluded that silence in the first instance is the best strategy. In other words, if a Mutually Assured Destruction policy was in effect as between the two major parties during the runup to the November 4th national election, it appears to have given way to a strict regime of Don’t ask, Don’t tell.

  47. Jim Delaney says:

    For Publius

    I know you may be repeating yourself in doing so, but would sincerely appreciate your commenting on #1016 and #1022. Given the range of honest dissent on this subject, and what appears to be a fairly loose interpretation of natural born citizen on the part of many participants here, am beginning to believe that many here would readily accept anyone’s eligibility to run for Prez so long as he can claim us citizenship by whatever means. And, frankly, that is a bit unnerving for me. Thanks very much.

  48. Hugh says:

    In Reply to the truth:

    P.A. Madison and others at Federalistblog.us certainly do not have single-digit IQ’s.

  49. JimAZtec says:

    In Reply to Mike: You have any evidence to prove anyone within the United States was ever considered “subject to the jurisdiction” of the United States prior to 1898?

    I live within the jurisdiction of several courts but I have never been a subject of their jurisdiction.

    The citizenship clause is no different from Sec. 1992 of U.S. Revised Statutes that was enacted the same year: “All persons born in the United States and not subject to any foreign power, excluding Indians not taxed, are declared to be citizens of the United States.”

    I believe the the above law remained the law all the way up until 1965 and was wholly ignored which was a national tragedy

    In Reply to the truth: Madison has documented his sources in other works. If you are looking for well documented sources you should try research or hire Mr. Madison to prepare you a well documented historical analysis.

  50. Mike says:

    As I recall, Rep. Bingham’s comment was part of the debate leading to drafting and passage of the 14th Amendment, which was than adopted by the states. However, a fundamental rule of statutory construction is that legislative history is only relevant to interpretation when the language of the law is not clear. I do not think that the first sentence of the 14th Amendment is unclear on the issue of citizenship, and it does seem to contradict Rep. Bingham’s point on the natural citizen issue, since it confers citizenship on every person born within the US and subject to its jurisdiction, without regard to the citizenship of the parents. It is also important to keep in mind that one fundamental purpose of the 14th Amendment was to guaranty citizenship to freedmen who had been born in the US, but whose parents were not citizens by virtue of their status as enslaved persons, and that may have been the focus of Rep. Bingham’s comment, rather than the children of resident aliens. However, subsequent statutory construction (by the Supreme Court) follows the plain language of the amendment.

    Of course, the question here is whether or not this also amended the “natural born citizen clause, and you already know my perspective on that from previous comments on this forum.