I found this gem in a comment thread at the blog of my collegue Jonathan Turley by commenter “Mick” at 4:42 am, May 22, 2010:
How do you live with yourself? A supposed Constitutional expert that doesn’t know what a Natural Born Citizen is? I would say that you probably do. You know, and are obfuscating the fact that Obama is not an eligible Natural Born Citizen, NO Matter if born in the White House, in JFK’s lap. Obama Sr. was not a citizen when Obama 2 was born. You and Obama both know that makes him ineligible. Destroying the Constitution for the benefit of your Leftist agenda. Fraud!!!
Awesome.
Ed Darrell says:
Appealing to the quirky “logic” of these birthers, let us just stipulate that Barack Obama is a bastard.
A bastard has no father of record, of course, and so would be eligible for the presidency, as opposed to the Obama in this nut’s scheme of things, who has a father who somehow makes his rights less than those of a bastard.
Let’s just stipulate Obama is a bastard, and settle the eligibility thing, can we?
The best part would be Glenn Beck’s having to talk about it on the air, even using the legal term.
August 31, 2010, 12:11 amElemenope says:
The Ultimate Legal Blog Comment?
If by ultimate you mean last, as in the final comment beyond which there is no hope left for humanity…yes.
August 31, 2010, 12:37 amBruce Boyden says:
I think I am going to end all of my blog comments with “FRAUD!” from now on. FRAUD!
August 31, 2010, 12:40 amPatHMV says:
Interesting. The commenter either believes that the 14th Amendment is not a part of the Constitution (a not uncommon believe among a certain circle of whackos) or that while the 14th makes all persons born in the United States citizens, it does not make such persons “natural born citizens.”
August 31, 2010, 12:41 amGuy says:
If you recall, they used to insist he wasn’t a natural born citizen on the more conventional (but equally insane) argument that he wasn’t really born in Hawaii, they change their argument whenever it becomes necessary. Presumably this tactic would just cause them to insist on proof that he wasn’t delivered by c-section. Surely such a person would not qualify as “born”, or at least not “natural born”.
August 31, 2010, 12:47 amRicardo says:
The usual suspects with their ritual denunciations of Wong Kim Ark enter from stage left in 3..2..1…
August 31, 2010, 12:49 amSarcastro says:
I hear his father is Malcolm-X, which totally makes him a citizen as defined by my own legal research into what Jefferson and Lincoln would have worked out if they wrote a Constitution 2.0.
August 31, 2010, 12:50 amDuffy Pratt says:
I thought the argument was that Obama is the anti-christ. Therefore, since he is the spawn of satan, his birth could not be natural. And thus, he cannot be a natural born citizen. It’s pretty obvious, don’t you think?
August 31, 2010, 12:56 amSteve P. says:
Truly an exceptional argument, grounded in facts and legal reasoning. Fraud!!!
August 31, 2010, 1:01 amCrazyTrain says:
How is that commenter unhinged. It seems pretty clear from Section 1 of the 14th Amendment that BHO is not a natural born citizen:
It’s the actervist courts who refuse to apply the ordinary meaning of this clause.
August 31, 2010, 1:08 amDave M. says:
I’m not so sure one even would need to renounce WKA to hold that position. The issue in WKA was constructed so narrowly that I honestly doubt it has any real applicability beyond any situation that possesses its precise facts.
Also, I have to admit that the argument that current conventional wisdom concerning birthright citizenship reads out of the 14A the phrase “subject to the jurisdiction thereof” is not without merit… And reading a law in such a way as to render a part of it redundant or null is a blatant violation of even the most basic canons of statutory construction.
Thus, I think more thorough discussion about the legislative intent and original public understanding of this phrase is warranted. It couldn’t hurt, could it?
August 31, 2010, 1:10 amJosh Bornstein says:
I’m always depressed when I read things like this; since, I know, his votes exactly cancel out my votes in every election. Sigh. (Oops. I mean, FRAUD!!!)
August 31, 2010, 1:16 amBrett says:
That comment makes me laugh. Does that mean that I’m actually a British citizen, because my dad’s one? I’ve been living a lie!
August 31, 2010, 1:18 amLiam says:
Since the British don’t have a written constitution, it’s up to the judges to decide those things.
Not that that’s actually any different than being over here, according to some of the regulars on VC; our judges just have to be a bit more creative.
August 31, 2010, 1:30 amGuy says:
I don’t see what the citizenship status of the parent has to do with jurisdiction, especially since the circularity of such a requirement would prevent the Clause from doing what it was primarily intended to do (ensure that the freed slaves would be citizens). Under the English common law a natural born subject was anyone who was born in England not to an ambassador, Blackstone was crystal clear on this. The “subject to the jurisdiction thereof” requirement is not surplusage, since it excludes members of Indian tribes and the children of ambassadors.
August 31, 2010, 1:35 amSarcastro says:
Birth Certificate: Muslim father, atheist mother….
My personal take on the “Citizen” requirement was that the President must have an absolute loyalty for the USA FROM BIRTH.
That would mean BOTH PARENTS must be citizens.
P.S. Muslim isn’t a religion…it’s a political system and all his daddies, including Franklin Marshal Davis, Malcolm X and Satan, were part of that system.
August 31, 2010, 1:53 amCornellian says:
Also, I have to admit that the argument that current conventional wisdom concerning birthright citizenship reads out of the 14A the phrase “subject to the jurisdiction thereof” is not without merit.
I have yet to see any explanation for why, on the plain language of the 14A, the phrase “subject to the jurisdiction thereof” somehow applies, not to the person born in the United States, but to one or both of the parents of the person born.
August 31, 2010, 2:05 amDave M. says:
“Subject” and “citizen” aren’t interchangeable terms. The framers viewed them as sufficiently different enough, and I can prove it. They named them both in Article III when establishing the jurisdiction of federal courts.
Further, children are held to have the domicile of their parents (primarily their father). There’s plenty of case law from the Early Republic era to support that assertion. And domicile of the the parents is one of the elements necessary to citizenship in the Court’s opinion in U.S. v. Wong Kim Ark.
In the face of the existing case law, the conventional view of automatic birthright citizenship sort of pans out as pretty weak… Unless you can reconcile those discordant elements in some way. Feel free. I’m open-minded.
August 31, 2010, 2:05 amChris Travers says:
We should totally do this. FRAUD!
August 31, 2010, 2:15 amRicardo says:
Nobody said they were literally interchangeable. The point is that if you want to assert that “natural born citizen” has a certain precise meaning, you have to cite authority for that meaning. Blackstone is a pretty good authority here considering that the U.S. borrows much of its legal framework from English common law. If the founders or the authors of the 14th Amendment intended to depart from Blackstone, it’s reasonable to think they would have explicitly signaled such an intent.
No, it is not “necessary.” That’s like saying that one of the “necessary” elements to fall under the Civil Rights Act as per Heart of Atlanta is that you have to operate a motel in close proximity to an interstate highway.
August 31, 2010, 2:21 amJ. Aldridge says:
Because the child inherits his/her citizenship/condition through the father.
That is all natural born citizenship is, inheritance under the laws of nature and not statute or location.
August 31, 2010, 2:22 amChris Travers says:
The Naturalization Act of 1790 doesn’t address jus soli questions at all. While it grants natural-born citizenship to children born of US citizens beyond the sea, it does not address what the requirements are for children born in the US, though it specifies that 20-year-old children (and younger) of immigrants who naturalize also become US citizens upon naturalization of their parents.
I think given the silence on this matter, I think it’s important to look back at the development of common law citizenship law and it’s extension by statute prior to the founding of our Republic. Jus soli was in fact the earliest form of citizenship recognized in England. Initially one had the citizenship of the place of birth, and this was extended in the 14th century by statute to include children born to citizen families (i.e. where both parents were citizens) but who were living abroad. Shortly before the Revolutionary War, this was again extended to cover children of British fathers residing abroad but whose mothers were not British citizens.
In other words, jus sanguinis has in Anglo-American law generally been a creature of statute, while jus soli has been a common law right.
I don’t know where this would have come up. Can you cite any cases which address the lack of jus soli in the early Republic?
Oh, I forgot to add FRAUD!
August 31, 2010, 2:34 amChris Travers says:
Yet Congress saw fit to state that children born of US citizens abroad were “natural born” citizens in 1790.
FRAUD!
August 31, 2010, 2:35 amChris Travers says:
Not to mention the atheists!
August 31, 2010, 2:37 amChris Travers says:
Don’t feel bad. We’ve had a Republican President with the same problem (British citizenship).
(Interestingly there were birthers around when Arthur was president.)
August 31, 2010, 2:39 amJ. Aldridge says:
That is because only state law could address the requirements. The trouble was not all states had enacted laws on the subject and that forced a court to look at English law. That is what happened in NY with Lynch v. Clarke (1844), forcing NY to overturn Lynch by statute.
August 31, 2010, 2:43 amJ. Aldridge says:
The law was just stating a truism as put forward by guys like Vattel.
August 31, 2010, 2:46 amChris Travers says:
Yet the naturalization law discusses birthright citizenship as the same as natural-born citizenship, as if becoming a citizen by birth is a part of that naturalization process. I grant that’s not a very 14th Amendment way of looking at it but that amendment hadn’t been put to pen and ink yet.
However, if you accept that, then you must think that the citizenship part of the Dred Scott decision was wrong because states could grant citizenship to free blacks if they wished or not. Is that correct?
August 31, 2010, 3:19 amJ. Aldridge says:
If I remember correctly, the whole reason for the natural-born part was to send a strong message against the English practice of claiming people to be forever British subjects who were born in the British dominion. We went to war with Britin over this.
August 31, 2010, 4:02 amGuy says:
Of course they’re not interchangeable, the difference is one of allegiance to a crown and allegiance to a republic, but that doesn’t mean that “natural born citizen” and “natural born subject” aren’t intended to be parallel terms, and it would be strange if the framers intended the meaning of “natural born” to be different but didn’t bother to explain how.
I don’t understand what you’re getting at here. Are you saying Obama’s parents weren’t living in the United States when he was born?
August 31, 2010, 4:20 amRicardo says:
And the issue was not resolved by that war. The U.K. did not change its law on this matter until the 1870s — up until then, children of British subject parents (whether the parents were naturalized American citizens or not) were natural born subjects for life and were prohibited from renouncing their allegiance.
August 31, 2010, 4:24 amJ. Aldridge says:
Sure the issue was resolved, at least on our end: British stopped blockading American ports where they were boarding every ship looking for British born subjects even if they were American to ship off to war.
August 31, 2010, 5:30 amJ. Aldridge says:
He wasn’t always reliable with the facts however.
August 31, 2010, 5:35 amJ. Aldridge says:
No need to renounce WKA since the WKA court did that all by itself by totally putting its ruling in direct conflict with the meaning of “subject to the jurisdiction” found in Elk.
Gray was horrible at steering around what he said in Elk.
August 31, 2010, 5:50 amPersonFromPorlock says:
Well, if we’re going to be fiddly, any close reading of Article Two Section One:
shows that all eligible persons had to be present “at the time of the adoption of this Constitution.” Thus, Martin van Buren (b.1782) was the last legitimate president.
And do we want to absolutely close off the eligibility issue? After all, come Nov. Third, various senior Democrats may want to speculate ‘off the record’ that there may be something to it after all….
August 31, 2010, 6:08 amleo marvin says:
I so want to believe that comment is real, but it’s so-o-o-o brilliant I have to admit it gives me pause.
August 31, 2010, 6:27 amBrett Bellmore says:
I’d dismiss the entire Birther thing out of hand, on the basis that conspiracies are hard to maintain, if it weren’t for one thing:
We STILL haven’t gotten to see that long form birth certificate. Just the certificate of live birth, which isn’t the same thing.
But I suspect Obama IS a natural born citizen, he just finds this a useful ‘red herring’ to keep those same people from applying all that energy to looking for something they might actually find. Otherwise he could have settled this over a year ago.
But I say, no constitutional clause without a remedy! If the President is required by the Constitution to be a natural born citizen, he ought to be required to prove it on demand. That’s a challenge I think McCain was actually the one who couldn’t have met…
August 31, 2010, 6:40 amBrian says:
I’ll remind Mr. Kerr that no prominent Republican or conservative endorses the Birther craziness. On the other side of the political spectrum, however, something like a half a dozen sitting Democratic Senators (including Senate Minority Leader Tom Daschle) – plus a few Democratic House members, plus Democratic officials such as Terry McAuliffe – attended the DC screening of Michael Moore’s whack-job war-for-oil (or for an oil pipeline) movie Fahrenheit 9/11 in 2004.
Dem Senator Tom Harkin:
“It’s important for the American people to understand what has gone on before, what led us to this point, and to see it sort of in this unvarnished presentation by Michael Moore.”
From Byron York at National Review:
And Michael Moore was, we remember, a featured guest at the 2004 DNC convention, seated next the President Carter.
The number and influence Birthers are magnified by the left-leaning media, because it feeds their irrational stereotypes of the opposition. But the actual opposition to President Obama is almost entirely centered on his public actions and statements.
August 31, 2010, 6:48 amRicardo says:
There is no conflict at all. As I recall, we’ve been through this before: you insist on taking quotes from Elk out of context to get the result you want. Elk is quite clear that Indian tribes occupy a unique space in U.S. law.
August 31, 2010, 7:32 amJeffDG says:
I’ve always thought of the “natural born citizen” think quite simply. Was a person a citizen at the moment of birth, or did they acquire such citizenship later in life.
Born in the US? Yep, and if you say that children of illegals are not “subject to the jurisdiction of the United States”, how does the US deport them? The US cannot deport an ambassador, it can only demand that the host state recall that ambassador. If an illegal kills someone, are they subject to prosecution?
Born to US citizen parents abroad? Subject to somewhat more complex laws regarding residency of the citizen parent(s), if that test is met, then yep…
Naturalized? Nope…your US Citizenship was conferred upon you after birth.
August 31, 2010, 7:53 amArkady says:
It’s easily provable on the basis of that “natural born citizen” vs “native born citizen” nonsense that very few of us would be eligible to be president of the United States, including, probably, Ronald Reagan.
August 31, 2010, 8:02 amJonathan H. Adler says:
Orin –
Mick’s posted stuff like that here too. See, e.g., http://volokh.com/2010/05/23/taking-the-washington-post-to-school/#comment-835520
JHA
August 31, 2010, 8:12 amArkady says:
I guess in fairness, I should lay out the proof.
The argument proceeds by asserting that since Obama’s father was a British citizen at the time of Obama’s birth in the United States, Obama inherited his father’s citizenship. And thus, while he was born in the United States, he is not a natural born citizen, but merely a native born citizen.
However, since he has never renounced this (supposed) British citizenship, he is still a British citizen, as are, therefore, Sasha and Malia, as they inherit his British citizenship. But the argument can be made purely general.
If any one of us has a male ancestor who was living in the United States, who had not become a citizen of the United States at the time he had children in the United States, then we’ve inherited whatever citizenship he had at the time his children were born, and thus we are not natural born citizens but merely native born citizens. We are not eligible to become president of the United States (according to the argument).
About Ronald Reagan. If you check his wiki page, it’s not clear that his greatgrandparents had become citizens at the time of the birth of their children, and if not, then he was not eligible to become president of the United States.
August 31, 2010, 8:28 amRicardo says:
As far as I know, it is correct that Obama technically held some sort of British nationality at the time of his birth (in addition, of course, to his American citizenship). An added wrinkle is that Kenya gained independence which meant that everyone eligible for citizenship in the new Kenyan state automatically lost British nationality and instead acquired Kenyan citizenship.
Apparently, you have to take affirmative steps to retain Kenyan citizenship upon reaching adulthood and there is no evidence Obama ever took any of those steps.
The irony behind all this dual citizenship business is that it makes eligibility for the Presidency contingent on foreign law. A child of Indian citizens would never run into this issue as India does not normally grant citizenship to children born outside the country nor does it recognize dual citizenship. On the other hand, the American-born children of a British or Canadian couple would get dual nationality at birth whether anyone wanted that result or not.
August 31, 2010, 8:52 amcboldt says:
The word “dual” hasn’t appeared yet, and I think dual citizenship is a necessary and useful part of the debate over eligibility.
August 31, 2010, 9:01 amObama was a dual citizen at birth, which creates an indefinite or variable allegiance; depending on where a person is located (early in life, presumably at the parents’ direction and decisions), and on decisions made later in life.
A good discussion of dual citizenship in Kawakita v. US, 343 U.S. 717 (1952).
cboldt says:
– if you say that children of illegals are not “subject to the jurisdiction of the United States”, how does the US deport them? –
August 31, 2010, 9:09 amI think of citizenship as associated with domicile, which is more than mere or transient presence. I am subject to the (traffic law) jurisdiction of every state I drive in. That does not make me a citizen of that state.
Connie says:
Ooh, Orin, trying for a 200+ comment thread?
August 31, 2010, 9:18 amdearieme says:
“…Kenya gained independence which meant that everyone eligible for citizenship in the new Kenyan state automatically lost British nationality”: are you sure of that as a matter of fact? In earlier times when the old Dominions became independent, people got the new nationality and retained the old one too. That is, for example one became both an Australian citizen and remained a British subject, with automatic rights to enter and settle in the UK and so on. Perhaps that had been changed when Kenya’s turn arrived?
August 31, 2010, 9:25 amsteve ellis says:
Oh, come on, Orin. More than likely, that commenter is a natural born Moby. Some enjoy acting/ hamming up the part, while others are paid to make right-of-center types and Tea Partiers look loony and heartless (Birther-Creationist-racist-homophobic) to discredit their legitimate issues.
Sure, there are teh crazies on both sides of the spectrum, but I expect to see a pod of Moby (dicks) in the run-up to the election, especially on the higher trafficked blogs.
Unless they’re getting traction, eye rolling might be the best reaction toward both the genuine outliers and the Hope, Change, and Delegitimize pros.
August 31, 2010, 9:29 amThatGuy says:
No one said that it did. However, if you were subject to that jurisdiction WHEN YOU WERE BORN you would be.
Really, the number of people on this page who cannot read simple immigration and nationality law is frightening. That Obama is a natural born citizen, from birth, either by virtue of his unwed mother’s citizenship at his birth or by virtue of being born within the borders of the United States and subject to the laws thereof, could be easily determined by any high-school educated immigration officer at any port of entry into the US.
August 31, 2010, 9:47 amRexx says:
It seems to me that Obama could end this debate anytime by releasing his birth certificate instead of that certificate of live birth which only certify that he was born alive but not where.
August 31, 2010, 9:55 amliamascorcaigh says:
All this intellectual and moral superiority over a single comment on some blog. Awesome!
August 31, 2010, 9:58 amcecil kirksey says:
It would seem to me a straight forward reading of the 14A would grant US citizenship to anyone born in the US with the stated exceptions. If this was not so it might be impossible for some black people with black parents to ever become US citizens. States can not grant US citizenship. Prior to the 14A states granted citizenship which then in some cases granted US citizenship, nut Dred Scott changed that.
August 31, 2010, 9:58 amslimslowslider says:
Oh good lord. Really?
August 31, 2010, 9:59 amJeffDG says:
But if you’re born in a state, and you’ve now admitted that you’re subject to the jurisdiction thereof, you’ve met both prongs of the plain text of the 14th Amendment.
August 31, 2010, 10:09 amBZ says:
Sorry, dude, but it’s far from “ritual.” For decades the Supreme Court had a different view from WKA (Please note that I am not supporting the Obama as non-citizen position, which I think is just wrong):
[/legal brief mode on]
I. The Jurisdiction Requirement in the First Sentence of Section One of the Fourteenth Amendment Means Something More Than Just Geography of Birth:
The jurisdiction requirement of Section One of the Fourteenth Amendment must mean something. The jurisdiction requirement was added to the draft of the Fourteenth Amendment by the Senate after a lengthy and acrimonious debate. CONGRESSIONAL GLOBE, May 30, 1866, 39th Congress, 1st Session, pp. 2890-97. Both contemporary jurisprudence and the authors’ expressed statements indicate that the jurisdiction requirement was to include some indication of allegiance to the country in addition to the geography of birth. As a later case described it in the context of naturalization, the Founders sought some “talisman of dedicated attachment.” Rogers v. Bellei, 401 U.S. 815, 834 (1971), citing, Weedin v. Chin Bow, 274 U.S. 657, 666-67 (1927).
A. Allegiance to the United States Was Important to the Authors of the Fourteenth Amendment:
As early as the Act of Jan. 29, 1795 (1 Stat. 414, c. 20), applicants for naturalization to the new United States were required to absolutely renounce and abjure all allegiance to every foreign prince or state, and to support the Constitution. The English common law theory of absolute and perpetual allegiance to the Crown from birth was rejected. 8 Ops. Atty Gen. 139 (1856), 9 Ops. Atty Gen. 356 (1859). Citizenship thus required some demonstration of allegiance to the United States.
The drafters of the Fourteenth Amendment, and the earlier Civil Rights Act of 1866 (14 Stat. 27, c. 31), were well aware of this difference between the old English system of permanent allegiance by birth and the new American system of some form of allegiance by choice and consent. “It is perfectly clear that the mere fact that a man is born in the country has not heretofore entitled him to the right to exercise political power.” CONGRESSIONAL GLOBE, supra, 2890 (Sen. Cowan).
On May 30, 1866, on the floor of the Senate, Senator Jacob Merritt Howard of Michigan proposed an amendment to the Fourteenth Amendment resolution passed by the House of Representatives. Id., 2890. The amendment, ultimately enacted without change as the first sentence of Section One of the Fourteenth Amendment, read: “All persons born in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the States wherein they reside.” Id.
Sen. Howard said that “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.”5 Id.
Sen. James Doolittle of Wisconsin proposed an amendment to Howard’s amendment to add language to exclude “Indians not taxed.” Id. Sen. Edgar Cowan of Pennsylvania asked questions about the definition of citizen:
If [the children of Chinese immigrants in California and Gypsies in Pennsylvania are citizens], what rights do they have? Have they more rights than a sojourner in the United States? If a traveler comes here from Ethiopia, from Australia, or from Great Britain, he is entitled, to a certain extent, to the protection of the laws. . . . He has a right to the protection of the laws; but he is not a citizen in the ordinary acceptation of the word.”
Id. (Emphasis added).
Sen. Cowan noted that he had been unable to get answers to his questions, either from his discussions about the Fourteenth Amendment, or from decisions of the Supreme Court. Id. Cowan read prior law as permitting States to describe certain rights of “aliens and others who acknowledge no allegiance, either to the State or the General Government.”Id. Cowan asked for clarification of rights: “Or is it only that he is entitled as a sojourner to the protection of the laws while he is within and under the jurisdiction of the courts?” Id., 2891.
Sen. John Conness of California, himself an immigrant from Ireland, responded to Sen. Cowan’s questions by declaring that his intention was to “declare children of all parentage whatever, born in California, should be regarded as citizens of the United States.” Id. There followed discussion of the need for language excluding “Indians not taxed” from the language.
Finally, Sen. Lyman Trumbull of Illinois, the Chairman of the Judiciary Committee and a member of the Committee of Fifteen which drafted the Fourteenth Amendment, stepped forward to explain the jurisdiction requirement:
The provision is, that ‘all persons born in the United States, and subject to the jurisdiction thereof, are citizens.’ That means ‘subject to the complete jurisdiction thereof.’ . . . What do we mean by ‘subject to the jurisdiction of the United States?’ Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe [sic] Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them, and therefore they are not subject to our jurisdiction. If they were, we would not make treaties with them.”
Id. (emphasis added).
Chairman Trumbull continued: “It cannot be said of any Indian who owes allegiance, partial allegiance if you please, to some other government that he is ‘subject to the jurisdiction of the United States.’” Id. (emphasis added). Trumbull thought Sen. Doolittle’s amendment regarding “Indians not taxed” was unnecessary. Id.
Sen. Reverdy Johnson of Maryland, the lone Democrat participating in the debate, then spoke up to support Doolittle’s amendment as a clarification. “Now all this amendment provides is, that all persons born in the United States and not subject to some foreign Power – for that, no doubt, is the meaning of the committee who have brought the matter before – shall be considered as citizens of the United States.” Id. (emphasis added). Johnson suggested that Doolittle’s amendment would do no harm if it were adopted, id., and pointed out that the language of the recently-passed civil rights bill had “the same provision”6 in it. Id., 2894.
I read now from the civil rights bill as it passed: ‘That all persons born in the United States and not subject to any foreign Power, excluding Indians not taxed, are hereby declared to be citizens.’ What did these words mean? They meant something; and their meaning as they are inserted in that act is the same meaning which will be given to them if they are inserted in the first section of this constitutional amendment.
Id.
In further remarks, Chairman Trumbull repeated his description of “Indians being subject to our jurisdiction. They are not subject to our jurisdiction in the sense of owing allegiance solely to the United States.” Id. (emphasis added). Reminded that Supreme Court decisions treated Indians as “subjects” and not as citizens, Trumbull replied: “In some sense they are regarded as within the territorial boundaries of the United States, but I do not think they are subject to the jurisdiction of the United States in any legitimate sense; certainly not in the sense that the language is used here.” Id.
After more discussion, Sen. Howard, the author of the original amendment, said:
I concur entirely with the honorable Senator from Illinois, in holding that 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, . . . . that is to say, the same jurisdiction in extent and quality as applies to every citizen of the United States now.
Id.
Sen. Howard summed up the debate by saying:
In one sense, all persons born within the geographical limits of the United states are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians. . . . I understand the words here ‘subject to the jurisdiction of the United States,’ to mean fully and completely subject to the jurisdiction of the United States.
Id., 2897.
The Senate then rejected Sen. Doolittle’s amendment on Indians by a recorded vote, and passed the amendment to the proposed Fourteenth Amendment on a voice vote. Id.
Certain lessons can be drawn from this debate. The authors of the Fourteenth Amendment did not want to grant citizenship to every person born in the United States. They wanted to grant citizenship only to persons born here who were also “subject to the jurisdiction” of the United States. They understood that phrase to be the same as the phrase “and not subject to any foreign Power,” used in the recent civil rights bill. And by “subject to the jurisdiction,” they meant “subject to the jurisdiction of the United States in every sense,” and “[n]ot owing allegiance to anybody else.” Even “partial allegiance” was sufficient to demonstrate that a person was not subject to the “complete jurisdiction” of the United States.
The authors made a distinction between those within the jurisdiction of the United States and “a sojourner in the United States,” or “a traveler [who] comes here from Ethiopia, from Australia, or from Great Britain.” In other words, the authors of the jurisdiction requirement were concerned about “drive-by citizenship” and thought that the jurisdiction requirement would exclude persons who had even a “partial allegiance” to another government.
B. This Court’s Initial Applications of the Jurisdiction Requirement Reflected the Authors’ Intentions:
For three decades following the Senate debate noted above, this Court recognized the jurisdiction requirement as including a non-geographical distinction between those with allegiance and those without. In The Slaughter House Cases, 83 U.S. (16 Wall.) 36 (1873), the Court noted that the phrase “subject to the jurisdiction thereof” was “intended to exclude from its operation children of ministers, consuls, and citizens or subjects of foreign states born within the United States.” 83 U.S. at 73 (emphasis added).
In Minor v. Happersett, 88 U.S. 162 (1874), the Court said:
At common-law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also. These were natives, or natural-born citizens, as distinguished from aliens or foreigners. Some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents. As to this class there have been doubts, but never as to the first.
88 U.S. at 167-68 (emphasis added).
In Elk v. Wilkins, 112 U.S. 94 (1884), Justice Gray, for the Court, described the jurisdiction requirement as intended “to put it beyond doubt that all persons, white or black, and whether formerly slaves or not, born or naturalized in the United States, and owing no allegiance to any alien power, should be citizens of the United States.” 112 U.S. at 101 (emphasis added). Justice Gray continued: “The evident meaning of these last words [“subject to the jurisdiction thereof”] 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.” 112 U.S. at 102.
This Court should not, in any decision in this case, ignore or undermine this clear intent by suggesting that geography is the sole determinant of citizenship. The Court should find meaning in the jurisdiction requirement.
II. Some of This Court’s More Recent Interpretations of the Jurisdiction Requirement Are Inconsistent With American History, Earlier Precedent and the Explicit Intention of the Authors of the Jurisdiction Requirement:
Unfortunately, some of this Court’s more recent precedents don’t reflect the authors’ intentions, as expressed in the debate described above. In fact, some of this Court’s rulings appear to contradict the authors’ intentions, and make assertions directly opposite to those expressed in the debate.
The most extensive – and problematic – discussion of the jurisdiction requirement is in United States v. Wong Kim Ark, 169 U.S. 649 (1898). In Wong, the Court considered 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 domicil and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the Emperor of China, becomes at the time of his birth a citizen of the United States, by virtue of the first clause of the Fourteenth Amendment of the Constitution.”
169 U.S. at 653 (emphasis added). The Court, in an opinion by Justice Gray, held that the child does become a citizen. 169 U.S. at 705.
This result is consistent with the Senate debate discussed above. As Justice Gray noted in passing, during the Senate debates on both the civil rights act and the jurisdiction requirement in the Fourteenth Amendment, the question of the American-born children of Chinese immigrants was explicitly discussed and the expressed intention was that these children would be citizens. 169 U.S. at 697-99, citing CONGRESSIONAL GLOBE, supra, pp. 498, 573, 574, 2890-92.
A. Justice Gray’s Analysis in Wong Kim Ark Conflicts With the Authors’ Intentions, This Court’s Other Decisions, and Logic:
Justice Gray’s reasoning, however, was inconsistent with earlier decisions of this Court, and the intentions expressed clearly in the Senate debate quoted above. Justice Gray’s analysis in Wong asserts a different understanding of “allegiance” – the crux of both his and the authors’ understanding of “jurisdiction.”
To Justice Gray, in Wong, once within a national territory, an alien gives up all allegiance to all other governments, at least temporarily. Given the importance the authors placed on allegiance, this belief is crucial to understanding the elemental contradiction between Justice Gray’s reasoning and that of the authors of the jurisdiction requirement.
Justice Gray said that an alien’s “allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory. . .” 169 U.S. at 693. This, to Justice Gray, was “complete” jurisdiction: “it can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides.” 169 U.S. at 694.
Justice Gray’s belief in an alien’s allegiance shifting in such a total and complete manner simply upon entry to the United States, however, is foreign to American history, this Court’s earlier precedents, and logic. Under Justice Gray’s analysis, for example, there would be no reason to require aliens to take an oath of naturalization renouncing all allegiances to foreign princes or powers, as had been required since 1795, and continues today. “I absolutely and entirely renounce and abjure all allegiance and fidelity to any foreign prince, potentate, state or sovereignty. . .” 8 U.S.C. § 1448(a)(1) (2001); U.S. Dept. Of Homeland Sec., Oath of Naturalization,
http://uscis.gov/graphics/aboutus/history/teacher/oath.htm.
The authors of the jurisdiction requirement apparently believed in a different definition of “complete” jurisdiction and “allegiance.” For example, Indians were thought to be within the territory of the United States, but not completely subject to its jurisdiction; this was considered so obvious that it was sufficient reason to defeat Sen. Doolittle’s amendment to explicitly exclude Indians:
In one sense, all persons born within the geographical limits of the United states are subject to the jurisdiction of the United States, but they are not subject to the jurisdiction of the United States in every sense. Take the child of an ambassador. In one sense, that child born in the United States is subject to the jurisdiction of the United States, because if that child commits the crime of murder, or commits any other crime against the laws of the country, to a certain extent he is subject to the jurisdiction of the United States, but not in every respect; and so with these Indians.
CONGRESSIONAL GLOBE, supra, at 2897 (Sen. Howard).
To the authors, as expressed by the amendment’s author, Sen. Howard, and the Chairman of the Judiciary Committee, Sen. Trumbull, “subject to the jurisdiction” of the United States meant simply that the person did not “ow[e] allegiance, partial allegiance if you please, to some other government.” Id., at 2984 (Sen. Trumbull).
In other words, rather than believing that presence in the United States would immediately and automatically oust any and all other allegiances to other governments, the authors of the jurisdiction requirement believed that allegiance to a foreign government could remain even while an alien was within the territory of the United States. The remaining allegiance to a foreign power, even if only “partial,” was cognizable in determining whether someone was “subject to the jurisdiction” of the United States. If a person retained even some allegiance to another government while within the United States, the person was not subject to the “complete jurisdiction” of the United States.
In this Court, naturalization-related cases, including some which cite Wong, similarly recognize the continuation of partial allegiance by those residing in the United States and require some type of residence, allegiance or permanence on the part of the applicant for citizenship. In Rogers v. Bellei, 401 U.S. 815, 834 (1971), for example, the Court noted “the importance of residence in this country as the talisman of dedicated attachment”, citing, Weedin v. Chin Bow, 274 U.S. 657, 666-67 (1927).
Seen in this manner, “partial” allegiance analysis is not difficult. Persons born of citizens have no such partial allegiances. Persons on the road to citizenship or otherwise precluded from immediate citizenship could demonstrate allegiance through their intentions to join society as best they could. They have, in other words, “talismans of dedicated attachment.” Rogers v. Bellei, 401 U.S. at 834. Persons who were only temporary “sojourners” would have more difficulty demonstrating they did not have at least partial allegiances to another power.
This sort of analysis was recognized by this Court in Elk v. Wilkins, written by Justice Gray himself. 112 U.S. 94 (1884). In Elk, John Elk, an Indian who had forsaken his tribe, sought the right to vote. Elk argued that he had renounced his allegiance to his tribe. Justice Gray, for the Court, rejected his claim – on telling grounds:
Though the plaintiff alleges that he “had fully and completely surrendered himself to the jurisdiction of the United States,” he does not allege that the United States accepted his surrender, or that he has ever been naturalized, or taxed, or in any way recognized or treated as a citizen by the state or by the United States.
112 U.S. at 99.
Even Justice Gray’s opinion in Wong uses these tests as its final foundation. After a very long (though selective and incomplete) analysis of English common law, Justice Gray concludes his analysis by reviewing the statement of facts agreed upon by the parties. Justice Gray emphasized that the Wongs “ha[d] a permanent domicil and residence in the United States.” 169 U.S. at 653. Although they could not have become citizens under the naturalization laws of the time, the Wongs demonstrated the allegiance to the United States sought by both Justice Gray and the authors of the jurisdiction requirement, not by accident of geography, but by explicit indicators of will and intent: “his residence has always been in the United States, and not elsewhere,” 169 U.S. at 704; his temporary visits abroad were always made with the intention of returning to the United States, id., he always returned to the United States, id., and neither he nor his parents ever renounced his citizenship or did anything to exclude him from citizenship. 169 U.S. at 704-05. These “talismans of dedicated attachment,” Rogers v. Bellei, 401 U.S. at 834, were sufficient to show that Wong Kim Ark had been born subject to the complete jurisdiction of the United States.
Justice Gray’s concern about using the full jurisdiction requirement was apparent in this passage: “To hold that the fourteenth amendment of the constitution excludes from citizenship the children born in the United States of citizens or subjects of other countries, would be to deny citizenship to thousands of persons of English, Scotch, Irish, German, or other European parentage, who have always been considered and treated as citizens of the United States.” 169 U.S. at 694. But as shown above, this concern is easily ameliorated by something less than evisceration of the authors’ intent to require some form of allegiance; any other form of demonstration of allegiance would produce the same result as it did in his own opinion in Wong.
Put simply, in an effort to avoid a perceived ill effect, Justice Gray swung too broadly in Wong Kim Ark. In so doing, he cut down the jurisdiction requirement to something less than its authors and this Court’s earlier cases intended.
B) The Faulty Wong Analysis Lives On and Exacerbates Other National Problems:
Nevertheless, Justice Gray’s analysis in Wong lives on. This Court has cited Wong with approval, but without further analysis. See, e.g., Weedin v. Chin Bow, 274 U.S. 657, 670 (1927)(“The majority in [Wong], as already said, held that the fundamental principle of the common law with regard to nationality was birth within the allegiance of the government and that one born in the United States, although of a race and of a parentage denied naturalization under the law, was nevertheless, under the language of the Fourteenth Amendment, a citizen of the United States by virtue of the jus soli embodied in the amendment.”); Rogers v. Bellei, 401 U.S. 815, 830 (1971)(Citizenship Clause reflects law existing at the time); Kennedy v. Mendoza-Martinez, 372 U.S. 144, 159 n.10 (1963)(same).
Other cases have simply asserted that a child of alien parents “born in the United States, was a citizen of this country” without further analysis. INS v. Rios-Pineda, 471 U.S. 444, 446 (1985)(child of illegal immigrants from Mexico); Morrison v. California, 291 U.S. 83, 85 (1933)(child of parents of Japanese descent).
In Plyler v. Doe, 457 U.S. 202 (1982), however, the majority opinion went further than earlier cases, by quoting, in a footnote, from Justice Gray’s analysis in Wong and describing the analysis as detailing “the predominantly geographic sense in which the term ‘jurisdiction’ was used.” 457 U.S. at 211. Yet, as shown supra, the authors of the jurisdiction requirement did not suggest any “geographic sense” to the term “jurisdiction;” they were predominantly concerned with allegiance, since geography was already addressed by birth “in the United States.”
Even the Plyler dicta employed the same type of “permanence” test used in Wong and cited in Weedin and Bellei to decide that illegal immigrant children should not be charged out-of-state educational tuition. 457 U.S. at 218-19 and n. 17 (“This situation raises the specter of a permanent caste of undocumented resident aliens. . .”, citing “legalization” or amnesty proposals, and quoting the Attorney General as noting that this “subclass is largely composed of persons with a permanent attachment to the Nation”). The Plyler Court noted that the District Court’s findings of fact in that case found that the families there “migrated illegally and – for all practical purposes – permanently to the United States.” 457 U.S. at 207. In footnote 3, the Plyler Court noted the lower court’s distinction between these “permanent” illegal residents and “those illegal aliens who entered the country alone . . . and who in many instances remained in this country for only a short period of time.” 457 U.S. at 207 n. 3.
The irony of the Plyler dicta is that it is more likely to increase the probability of creating “the specter of a permanent caste of undocumented resident aliens,” 457 U.S. at 418, than to ease it. The actual result of Plyler is to create or strengthen a magnet for more illegal immigration to the United States in the hope of obtaining free education and other welfare benefits. See, n. 4 supra; League of United Latin American Citizens v. Wilson, 908 F.Supp. 755 (C.D.Cal. 1995) (citing Plyler to strike down ballot initiative)
[/legal brief mode]
August 31, 2010, 10:25 amSterngard Friegen says:
If we are interested in interpreting the phrase “naural born Citizen,” shouldn’t we be interested in what the word “natural” meant to the Framers? In 1787 it meant “native.” So, “natural born” = “native born.”
That, of course, would also be consistent with an originalist approach. (And, as Scalia wrote in Heller, words are to be interpreted using their generally understood contemporaneous meanings, not some secret or special meanings, as the birthers try to argue.)
To allow a foreign country to determine which of our citizens are eligible to be elected to political office cedes our sovereignty to another country. But the same birthers who push this issue (the de Vattel interpretation) are the same ones who see conspiracies and plots in which they accuse others of ceding our sovereignty. Except for Orly Taitz, of course. She wants the U.N. to step in and help her.
Fraud!!!
August 31, 2010, 10:26 amSterngard Friegen says:
If we are interested in interpreting the phrase “naural born Citizen,” shouldn’t we be interested in what the word “natural” meant to the Framers? In 1787 it meant “native.” So, “natural born” = “native born.”
That, of course, would also be consistent with an originalist approach. (And, as Scalia wrote in Heller, words are to be interpreted using their generally understood contemporaneous meanings, not some secret or special meanings, as the birthers try to argue.)
To allow a foreign country to determine which of our citizens are eligible to be elected to political office cedes our sovereignty to another country. But the same birthers who push this issue (the de Vattel interpretation) are the same ones who see conspiracies and plots in which they accuse others of ceding our sovereignty. Except for Orly Taitz, of course. She wants the U.N. to step in and help her.
Fraud!!!
August 31, 2010, 10:26 amcboldt says:
– But if you’re born in a state, and you’ve now admitted that you’re subject to the jurisdiction thereof, you’ve met both prongs of the plain text of the 14th Amendment. –
August 31, 2010, 10:33 am“Subject to the jurisdiction” is capable of a range of meaning, and therefore isn’t amenable to a definite conclusion based on its “plain text.”
You’d asked about the deportabilty of either illegal aliens or their citizen children – how can one or the other be deported if they are not subject to the jurisdiction? Applying my point, that an illegal alien is deportable (and in that sense, subject to the jurisdiction) does not make them a citizen; and under current ConLaw, the child is a citizen and therefore NOT deportable.
The most common construction of the 14th amendment results in a person born in the US on a citizenship vacation (e.g., Korean mom comes to the US for the purpose of obtaining US citizenship for her child to be born), then raised as a foreigner, by foreign parents, in a foreign country, having birthright eligibility for the presidency – even if that child is also considered a citizen of the foreign land. This would be an application of a minimalist quantum of “subject to the jurisdiction.”
you bastard! says:
This doesn’t affect the birther stories, but re this:
I’m surprised more people don’t talk about Obama’s status as an illegitimate child. His parents got “married” after mom was pregnant, but no one seems to dispute that dad was already married back in Kenya. Assuming the Kenyan marriage would get full faith and credit in Hawaii for benefits, would it not also count as a first marriage rendering the second one void?
Not that any of it matters for citizenship, or really, for anything, but I am suprised it isn’t kicked about more.
August 31, 2010, 10:38 amJeffDG says:
cboldt, I can’t disagree with you about the parents not being citizens. US law applies to all on US soil, with the exception of those granted treaty immunity (like diplomats).
That’s why the children satisfy both prongs of the 14th, being born in the US, and being subject to the jurisdiction thereof.
If someone claims they’re not citizens because their parents, being illegal (excepting those like myself who are non-resident aliens here legally) are not subject to the jurisdiction, then you cede jurisdiction over said parents in other areas, like deportation laws…if the parent is not subject to the jurisdiction of the US, then they are not subject to the jurisdiction of the INA, which among other things, provides for deportation of illegal aliens.
Personally, IMHO, parents who have children in the US should be given the protection the law currently allows…ie, none. They should be deported forthwith. The child, however, cannot be deported, as a US Citizen and entitled to all the privileges and immunities that come with that status. The parents, now subject to deportation, then have a choice. They can leave the child in the US, with trusted relatives or friends as guardians, or take the child with them to their home country. Once that child is 21, as a US Citizen, that child has the right to file an I-130 petition to request lawful permanent residency for his/her parents, and no rights should confer before that time.
August 31, 2010, 10:50 amuh_clem says:
Not much to add here that hasn’t already been said.
FRAUD!!
August 31, 2010, 10:50 amcboldt says:
– Assuming the Kenyan marriage … also count as a first marriage rendering the second one void … Not that any of it matters for citizenship, or really, for anything … –
August 31, 2010, 10:53 amMarried or not would matter for the dual citizenship question. Granted, only on the slim to no probability chance that dual citizenship and the accompanying split allegiance at birth is ever held to come short of the “natural born citizens” qualification requirement in the constitution.
MCM says:
Did the Founders lack the word “native”? Where’s your evidence that “natural” meant “native”? FRAUD!!!
August 31, 2010, 10:54 amGuy says:
That may qualify for natural born citizen status, but there is a fourteen year residency requirement to be President as well. Also, I don’t see what the tourist scenario has to do with “anchor babies”, I suspect that most illegal immigrants who have children in the United States have established permanent (if not legally authorized) residency.
August 31, 2010, 10:56 amJames says:
Everyone is missing the important part of the 14th Amendment: The Equal Protection Clause.
It doesn’t matter where Obama, Arnold, or Jennifer Graham were born, or who their parents were. Once you become a US Citizen, (and meet the age and residency requirements) you are eligible to become President, because the clause requires equal protection: naturalized and natural born alike may be president.
Of course this argument would be much better and more easily made with the P&I Clause instead.
August 31, 2010, 11:01 amDavid M. Nieporent says:
Bingham, bingham, bingham. (Just to get that out of the way.) Now here’s an appropriate use of FRAUD!: Aldridge’s inability to understand basic English, such that he mistakenly thinks Elk and WKA conflict. Elk, of course, only dealt with Indians, who were a unique case.
August 31, 2010, 11:02 amcboldt says:
– If someone claims they’re not citizens because their parents, being illegal (excepting those like myself who are non-resident aliens here legally) are not subject to the jurisdiction, then you cede jurisdiction over said parents in other areas, like deportation laws…if the parent is not subject to the jurisdiction of the US, then they are not subject to the jurisdiction of the INA, which among other things, provides for deportation of illegal aliens. –
August 31, 2010, 11:06 amAgain, my point is that “subject to the jurisdiction” doesn’t have a fixed meaning. The parents can be subject to the jurisdiction for deportation purposes (as I am subject to traffic law jurisdiction no matter where I drive); and being subject to traffic law does not put me subject to the military conscription law of whatever country I happen to be located and driving in.
Simple location and presence is enough to justify some state action either on my behalf or against me; domicile and residency results in a different set of rights and duties; and citizens covers different ground.
I disagree with your conclusion, that citizenship necessarily attaches to the birthchild of people in the country illegally, because the illegals are deportable and therefore “subject to the jurisdiction.” The result you assert flows from a footnote in Plyler; not from “the plain text” of “subject to the jurisdiction” in the 14th amendment.
jukeboxgrad says:
I’ll remind Brian that Palin has indeed endorsed the birther craziness.
And are you really going to claim that Limbaugh and Hannity are not “prominent?”
And maybe it doesn’t pass the “prominent” test, but you should notice what the AZ House did.
And are members of Congress “prominent?” Because there was also a birther bill introduced there.
Pretending that there are no “prominent” birthers is almost as nutty as being a birther.
And let’s get a sense of how the nuttiness has taken hold among non-prominent Rs: “Twenty-seven percent of Republicans say he was probably not born here, and another 14 percent of Republicans say he was definitely not born in the U.S.”
So 41% of Rs aren’t sure he was born here, even though, according to WSJ, “Obama has proved that he is a native of Hawaii.” 41% of Republicans being this divorced from factual reality is a big clue about the current state of the GOP.
August 31, 2010, 11:07 amnatural mom says:
The real question is whether his mom had an epidural. If so, he was not natural-born. Most of the rest of you are also ineligible to be president for that reason, too.
Plain language is fun.
August 31, 2010, 11:22 amgrog says:
Not bad for a blog comment. However, for an actual ultimate blog post, the true connoisseur needs a finer vintage of nutty. And this is where reputation does matter: the Obama/Malcolm X connection is brought to you by one of the earliest sources of the anti-Cordoba House poutrage.
Brian – would you care to provide your definition of “prominent” for us?
August 31, 2010, 11:22 amDavid M. Nieporent says:
Wow. Wrong on both issues.
1) The “Mick” crowd of nuts are not basing their argument on where Obama was born, so him proving he was born here would not “end this debate.” Their argument is based on the (false) legal claim that unless both your parents are citizens, you’re not a natural born citizen.
2) His COLB does, in fact, certify that he was born here. There’s no other birth certificate for him to “release.”
August 31, 2010, 11:24 amChris Travers says:
So was at least one Republican president.
August 31, 2010, 11:47 amGuy says:
That’s hardly an inexorable outcome, the Equal Protection Clause merely requires that similarly situated people be treated similarly. Besides, as a matter of interpretation, usually the specific governs the general. Also, the Equal Protection Clause only constrains the states, even the equal protection principle incorporated into the Fifth Amendment’s Due Process Clause is only binding on the federal government, not on the Constitution itself. It would be a stretch to say that the 14th Amendment was an implied repeal of the Presidential eligibility requirements. Even the tension between the 14th and 11th Amendments, which is much more direct, has not been resolved simply by setting the concept of sovereign immunity aside.
August 31, 2010, 12:04 pmChris Travers says:
Best comment yet!
August 31, 2010, 12:08 pmGuy says:
Is that a Constitutional rule, or a question of statutory interpretation? Do you think it would be unconstitutional to draft illegal aliens? Seems to me we could charge an illegal alien with treason if he levied war against us, I don’t see why a person’s illegal status should give them an advantage relative to lawful resident aliens.
August 31, 2010, 12:08 pmRicardo says:
Pregnant women can be denied entry to the U.S. if immigration inspectors suspect they intend to give birth while in the U.S. I think it is right that very few babies born to foreign nationals in the U.S. are born to temporary visitors.
August 31, 2010, 12:10 pmRoger says:
The “gem” comment makes a comprehensible legal argument, even if it is wrong or overstated. That makes the comment a lot better than a lot of others on this subject, such as those that just resort to name-calling.
August 31, 2010, 12:14 pmslimslowslider says:
No it doesn’t, Roger.
August 31, 2010, 12:24 pmcecil kirksey says:
OK. Not much legal substance so far. So how about a quiz.
When the 14A was ratified did the blacks who were former slaves and who were born in the US automatically become US citizens? If not what was the process by which they became citizens? If a child was born of such black noncitizens was the child automatically a US citizen?
It would be helpful to work your way in answering these simple questions.
August 31, 2010, 12:28 pmDan Weber says:
Orin owes me a beer. Fraud.
August 31, 2010, 12:45 pmGuy says:
Also, it’s important to recall that we’re talking about whether the child is subject to our jurisdiction, not the parents, so this consideration is largely irrelevant.
August 31, 2010, 12:47 pmOrin Kerr says:
Fraud!!!
August 31, 2010, 1:24 pmSterngard Friegen says:
MCM – Some of the most literate people of the 18th Century wrote our Constitution They even had a “style committee” to make sure it was done in a way that they thought would be appropriate. Did they have the word “native”? Beats me. But they had the word “natural,” which had a contemporaneous meaning for them. My “proof”? Take a look at the 26 volume Oxford English Dictionary, first meaning. While it is now an archaic meaning, it was the meaning at the time.
But your post makes an even more important point. If the Framers wanted to make sure that only those born of citizens would be considered “natural born Citizens,” they would have written that rather than hoping people would resort to some hidden meaning buried in a Swiss legal philosopher’s French language survey of the law of Europe (a survey which didn’t, by the way, use the word “natural born” at all but “indigenes”; “natural born” didn’t show up until a 1797 English translation).
In fact, the similar phrase “natural born subject” had several hundred years of meaning — it meant “native born” (as we now understand and use the term “native”). Why would the Framers use a parallel term but seek to ascribe a very different meaning to it? It defies common sense. But that’s what the birthers are all about in looking for a magic bullet to disqualify the scary black man in the White House.
August 31, 2010, 2:18 pmNickM says:
How can it be the ultimate legal blog comment? It doesn’t use either “Hitler” or “Nazi” anywhere.
Nick
August 31, 2010, 2:36 pmJeffDG says:
I wasn’t aware that the either the Equal Protection or the PorI clauses of the 14th applied to the federal government now.
August 31, 2010, 2:38 pmJakeD says:
jukeboxgrad:
Gov. Palin has NOT endorsed birthers. She said that they have the RIGHT to bring the issue up — similarly, I think that the Muslims have the RIGHT to build Cordoba House — does that mean I “endorse” them now too? In fact, she specifically noted “I don’t know if I would have to bother to make it an issue, because I think that members of the electorate still want answers … The McCain-Palin campaign didn’t do a good enough job in that area.”
http://www.politico.com/blogs/bensmith/1209/Palin_Obama_birth_certificate_a_fair_question.html
August 31, 2010, 3:04 pmJakeD says:
natural mom (and Chris Travers):
Epidural anesthesia for childbirth in the U.S. was still rarely used in 1961 (assuming arguendo that’s when / when he was born). In fact, only 589 women in several participating hospitals gave birth using this method during the first approved clinical testing in 1942. The results were published in the January 23, 1943, issue of the Journal of the American Medical Association.
I think that we can safely assume that no such procedure would have taken place in Kenya ; )
August 31, 2010, 3:14 pmRoger says:
I nominate jukeboxgrad’s comments for this prize. He will find any excuse to make false and gratuitous attacks on Palin.
The “gem” comment interprets “natural born Citizen” in Article II as requiring the President to have been born from citizen parents. I do not interpret it that way, but he expresses his opinion clearly enough.
August 31, 2010, 3:40 pmConstantin says:
His own wife has claimed in public, on several occasions, that he was born out of wedlock. Recall the dustup over this during the Scott Brown campaign. Throw in his (at best) imprecise claim that his parents met at Selma, and his own contradictory statements about what hospital he was born in, and I think there’s some legitimate confusion about young Barack’s situation that has nothing to do with Kenya or Malcolm X or the Whoomp There It Is video.
August 31, 2010, 3:57 pmMichael Drake says:
The “Ultimate” claim runs head-on into the inverse Highlander equilibrium problem: since blog-comment shark-jumpers have achieved arbitrarily long distances, there cannot be only one.
August 31, 2010, 4:01 pmChrisTS says:
Guy:
OMG. How am I going to tell my 18 year old son that he hasn’t been born? (Maybe this explains why my clothes are tight.)
August 31, 2010, 4:14 pmChris Travers says:
Well, you have a larger issue (and one of circular dependencies here). If the child is born here and a citizen then the child is under the full jurisdiction of our laws. If the child is born here and is not a citizen, then the child is not under the full jurisdiction of our laws. However, reading it in this way renders that phrase mere surplus words and I cannot imagine that a court would read it as such.
I think a better way to read it is “and is not exempted from the jurisdiction of our laws” (i.e. through treaty or other international arrangement). This would be consistent with the idea that foreign troops stationed on US soil by treaty are not eligible to have their kids born on US soil obtain US citizenship any more than the child of a foreign diplomat is.
August 31, 2010, 4:33 pmohwilleke says:
People care because it represents a movement that has the backing of a stunningly large share of the community of politically active people at the moment. It is living proof that emotional froth can trump sanity even on the civilized modern salons we call law blogs. It is Exhibit A in the case that we are going to hell in a hand basket because we as a nation deserve to.
August 31, 2010, 4:40 pmTexEd says:
The “birther” issue is a red herring created by the Obama owners to give the leftists something to deride. We haven’t seen Obamma’s birth certificate, school records, medical records, client lists etc. HE IS HIDING SOMETHING!!
August 31, 2010, 4:43 pmBut, as “McCarthyism” was an absolute defense by any American communist against the charge that he was an American communist, so too, is the shield of “birther” being used as an absolute defense against charges that Obama was born in Kenya AND any reference to any of the hidden documents.
The concealment (which would never be tolerated if done by Bush) allows normal thinkers to draw whatever conclusions they wish. No birth certificate because he wasn’t born here; no thesis because it would quickly be proven to have been plagiarized; no medical records because he is HIV positive and impotent and, therefore, not the father of Michelle’s children; no transcripts because he never really graduated.
Heck, he even blocked his birth DATE on the photo of his passport that was published last week. He is hiding something.
ChrisTS says:
I would like to think we do not all deserve to, although I fear that we may all be dragged along.
August 31, 2010, 4:44 pmChrisTS says:
Joke, right? (The HIV and impotency parts are the giveaways?)
August 31, 2010, 4:47 pmWelsh Dragon says:
Actually if there was no legitimate marriage there would be no dual citizenship. Under the UK Nationality Act 1948 citizenship by descent was only confered at birth on legitmate children.Illegitiamte children could only acquire it if their parents subsequently married.
August 31, 2010, 4:57 pmliamascorcaigh says:
It is merely an opportunity for desperate leftists to take their elitism for a promenade, as in such gems of preciosity as the civilized modern salons we call law blogs. Ovid posturing piteously in Tomi comes to mind. Or Oscar Wilde’s Caliban gurning before the glass.
August 31, 2010, 5:00 pmAndrew says:
I want to do my part to get this thread up to 100 comments, so here goes….
There are some respectable authorities that say Wong Kim Ark was wrongly decided. I think George Will has taken that position, along with Lino Graglia, and also the Heritage Foundation. And, of course there were dissenters in that case. If that case was wrongly decided, then Obama might not be eligible for the presidency even if he were born in Hawaii. But, I think Wong Kim Ark was correctly decided, or at least the Constitution is sufficiently ambiguous that the decision was a plausible interpretation that should not be overturned at this late date.
So, the only way to snare President Obama would be if it’s proved that he was born outside the United States. There’s no evidence that he was born anywhere other than Hawaii. But it’s mystifying why he won’t release a copy of the original 1961 birth certificate that names the doctor and hospital. Maybe there’s something else on that 1961 document that he wants to keep secret.
Anyway, we know that Obama and his mother were in Seattle in August 1961, which is rather unusual considering that’s the month he was born. But it’s hardly proof that he was not born in Hawaii. Perhaps more tantalizing is the fact that she told friends in Seattle that she was on her way to be with her husband, and at that time he was a student in Hawaii—but maybe he was away from Hawaii at that time.
In any event, I don’t see the need for all the secrecy about the original 1961 document. Just release the damn thing. Has any other president ever suppressed a document related to eligibility? Not that I know of.
It’s possible (though extremely unlikely) that Ann Dunham went to Kenya for the birth, found out there that her husband already had a Kenyan wife and child (which he did), and decided that it would be important for custody reasons to have the child’s birth registered in the United States. She hypothetically could have traveled via Vancouver (in Canada) to and from Kenya without a passport, because no passport was required between Canada and the US, or between Canada and the rest of the British empire. And then she could have plopped the baby on the counter when she got back to Hawaii, to get the birth registered there. It’s all EXTREMELY unlikely, but releasing the original 1961 document would certainly put the matter more definitively to rest. In any event, the 1961 document is an interesting historical record in its own right, so it’s hard to understand why it’s being concealed (Andy McCarthy at National Review has written that the request for the original 1961 document is therefore a “reasonable” request and I agree).
So, all in all, release the stupid document. It will prove what we already know: he was born in Hawaii and eligible for the presidency. And it will provide other historically relevant info.
Incidentally, the Wong Kim Ark case involved children of legal aliens rather than illegal aliens, but no one is suggesting that Obama’s Dad was here illegally. He certainly was not.
August 31, 2010, 5:09 pmslimslowslider says:
It is merely an opportunity for Orin Kerr to say FRAUD with three exclamation points.
August 31, 2010, 5:11 pmWelsh Dragon says:
For the purposes this debate the original statement is substantially true. There are nuances but simply put the rights to enter and settle you refer to were increasingly restricted from the sixties on, and indeed in the late sixties many Kenyan asians who’d retained british nationality were deported from Kenya but refused entry to the UK.
August 31, 2010, 5:14 pmWelsh Dragon says:
Emphasis mine. Quite simply not true!- a passport would have been required to travel from Canada to Kenya. By then this is not ‘the British Empire’ but ‘the Commonwealth’.
August 31, 2010, 5:21 pmAndrew says:
Welsh Dragon, after World War II, no passport was required for Brits wanting to travel between Great Britain and Canada. See here, for example. I don’t know exactly when that changed. I’ll look into it, and comment later in this thread if I find anything definitive. Kenya was a British colony in 1961, if I remember correctly.
August 31, 2010, 5:30 pmcboldt says:
– Actually if there was no legitimate marriage there would be no dual citizenship. –
August 31, 2010, 5:41 pmThat was the point of “Married or not would matter for the dual citizenship question,” in reaction to “Not that [married or not] matters for citizenship, or really, for anything.”
Andrew says:
Welsh Dragon, as of 1963 a Canadian could travel to either the US or to Britain without a passport, according to this. And that’s about all the research time I can devote to the matter right now. Cheers.
August 31, 2010, 5:47 pmJakeD says:
Canada did not gain complete independence until 1982, which severed the vestiges of legal dependence on the British parliament, although it is still a constitutional monarchy with Queen Elizabeth II as its head of state.
August 31, 2010, 5:50 pmJakeD says:
The question remains: why won’t Obama simply authorize the release the [purported] original 1961 birth certificate that names the doctor and hospital?
August 31, 2010, 5:52 pmAndrew says:
JakeD, my theory is that the original 1961 document explicitly says that the newborn was a Moslem. Personally, I couldn’t care less what religion he was assigned at birth, and I don’t even care much what his religion is now. But in many Islamic countries, “apostasy” is a capital offense. So, my theory is that Obama does not want to appear to be an apostate. Personally, I don’t think that’s a legitimate reason for concealing an eligibility-related document, but that’s my theory. Anyhow, I’m going to exit this conversation now. Apparently discussing such things is taboo, and I may get tarred as part of the lunatic fringe! Cheers.
August 31, 2010, 5:56 pmWelsh Dragon says:
Quite prepared to accept that fact – but since President Obama’s mother wasn’t Canadian it’s irrelevent.
August 31, 2010, 6:02 pmWelsh Dragon says:
My apologies – I misread your post.
August 31, 2010, 6:03 pmAndrew says:
Ahem…. If a Canadian could travel to the US or Kenya without a passport in 1963, it seems quite possible that a US citizen (who definitely could travel to Canada without a passport) could travel to the British Colony of Kenya (via Canada) in 1961 without a passport. So, the link I gave is persuasive and relevant, but not conclusive. And anyway, she hypothetically could have used a passport.
August 31, 2010, 6:07 pmWelsh Dragon says:
That theory doesn’t hold water since there’s nowhere on the form to record religion.
August 31, 2010, 6:08 pmBABH says:
From Wikipedia (follow link for cites):
August 31, 2010, 6:12 pm“The Obama campaign released a 2007 certified copy of his birth certificate (in this instance referred to as a “Certification of Live Birth”) that states Obama was born in Honolulu, Hawaii, on August 4, 1961. Frequent arguments of those questioning Obama’s eligibility are that he has not released a photocopy of his “original” birth certificate, and that the use of the term “certification of live birth” on the document means it is not equivalent to one’s “birth certificate”. These arguments have been debunked numerous times by media investigations, every judicial forum that has addressed the matter, and Hawaiian government officials—a consensus of whom have concluded that the certificate released by the Obama campaign is indeed his official birth certificate.”
JakeD says:
Thanks for your contribution, Andrew. Perhaps the original birth certificate lists a different “father” (see BASTARD theory above)?
August 31, 2010, 6:13 pmAndrew says:
Welsh Dragon, you appear to be correct about that. See here. That makes it all the more puzzling why the document is being suppressed. Maybe the explanation is simply that David Axelrod is entertained by comment threads like this one. :-)
August 31, 2010, 6:14 pmAndrew says:
BABH, Wikipedia does not consider itself to be a reliable source. We should humor them.
JakeD, maybe the 1961 certificate says that his father was Richard Nixon. I’d certainly want to cover that up. :-)
Oops, I said above that I was going to get out of this taboo conversation. Darn.
August 31, 2010, 6:18 pmBABH says:
Or perhaps it’s just that there is no such document, and the whole birther movement is a crazy conspiracy theory. AND A FRAUD!!!
August 31, 2010, 6:19 pmJakeD says:
BABH:
I am not disputing that Obama’s “Certification of Live Birth” is legally sufficient for all purposes (i.e. drivers license, Social Security, acceptable by the State Department for the issuance of passport) except as to the certain Constitutional qualifications to be President of the United States.
August 31, 2010, 6:25 pmAndrew says:
BABH, the 1961 document exists and is being suppressed. See
“Hawaii officials confirm Obama’s original birth certificate still exists”
The only issue is whether it should or should not be suppressed. I think it should not be suppressed, but I don’t feel as strongly about it as the excited commenter “Mick” quoted in Orin’s blog post. Obama is the one who stands to benefit the most from releasing it.
August 31, 2010, 6:28 pmJakeD says:
There IS allegedly such a document:
“… the director of Hawaii’s State Department of Health, Dr. Chiyome Fukino, has just repeated her statement from October that she has personally and with her very own official eyes seen the ‘original vital records’ regarding Obama’s birth …”
http://latimesblogs.latimes.com/washington/2009/07/barack-obama-birth-certificate-hawaii.html
August 31, 2010, 6:28 pmJakeD says:
For the sake of the historical record, and to clear up these questions on his legitimacy, Obama should release his “original vital records”. Unless there’s some other reason — like no doctor’s signature and, instead, a notation that the birth was recorded based solely on his mother’s affidavidt — then it would NOT be in his best interest to release it.
August 31, 2010, 6:39 pmJ. Aldridge says:
Actually no. If you read Elk it approved of the same definition for “subject to the jurisdiction thereof” as the U.S. Attorney general’s opinion, the 39th Congress and probably Slaughterhouse. Surely you are not going to argue “subject to the jurisdiction” applies only to Indians and “not all persons”? Gray himself said the meaning applied to “all persons” and just not Indians or Asians.
August 31, 2010, 6:40 pmJ. Aldridge says:
You are confusing equal protection with equal benefits of the laws. See here for a explanation.
August 31, 2010, 6:46 pmMike says:
Let me get this straight. So at the time the Fourteenth Amendment was drafted, the authors intended presidents to present only long-form birth certificates as proof of natural born citizenship? No short-form birth certificates? Can you point to the text from which you’ve derived this theory?
August 31, 2010, 7:25 pmJakeD says:
Mike:
The “text” specifically fails to mention NATURAL BORN citizenship. To make the freed slaves citizens, naturalization was the only power the 14th Amendment granted Congress to use. Congress had no intention and no authority to making everyone born under the 14th Amendment “a natural born citizen.” This is born out (pun intended) by Congressional records regarding the debate of the Fourteenth Amendment. From the chief architect of Section 1 of this amendment:
“I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen; but, sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or color of power to say that any man born within the jurisdiction of the United States, and not owing a foreign allegiance, is not and shall not be a citizen of the United States.” John A. Bingham, (R-Ohio) US Congressman, Architect of Section 1 of the 14th Amendment, March 9, 1866 Cong. Globe, 39th, 1st Sess., 1291 (1866), Sec. 1992 of U.S. Revised Statutes (1866), Cf. U.S. Const. XIVth Amend.
There is no doubt that anyone born under the 14th Amendment who is not subject is a “naturalized citizen,” or just “a citizen,” as the Amendment states. They are not natural born citizens however.
To further understand why this is so, is to look at the first clause carefully:
“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.”
The words “born or naturalized” are joined with the conjunction “or,” and logically an or implies either of the two are equal. What they are equal in is being a citizen. Not “a natural born citizen.” This expressly negates the idea that simple birth of a person who is “subject to the jurisdiction” confers the coveted “natural born” status. If the term “citizen” did in fact convey a “natural born” status, then who were naturalized would be considered “natural born.”
Obviously, this is not the case, as it would mean that people like Kissinger, Albright and Schwarzenegger could run for President. Clearly, the Fourteenth Amendment is not conferring “natural born” status on anyone, it only confers simple “vanilla-type” citizenship and the universal rights given to all citizens, “native born” and naturalized. In fact, several Supreme Court Cases since the ratification of the Fourteenth Amendment restrict citizenship claims based on being born geographically within the United States, and bestows the coveted “natural born citizen” title to the children of citizens, while affirming simple citizenship to the children born to aliens. Someone mentioned Elk and the Slaughterhouse cases, have you read those?
August 31, 2010, 7:47 pmJakeD says:
See, also Minor v. Happersett 88 U.S. 162 (1874): The Fourteenth Amendment draws a CLEAR distinction between the children of aliens and children of citizens. “The Constitution does not in words say who shall be natural-born citizens. Resort must be had elsewhere to ascertain that. At common law, with the nomenclature of which the framers of the Constitution were familiar, it was never doubted that all children born in a country of parents who were its citizens became themselves, upon their birth, citizens also.”
August 31, 2010, 7:53 pmleo marvin says:
Yes, that is the question.
Please keep asking it.
Pretty please.
August 31, 2010, 8:16 pmChris Travers says:
Then he goes on to quote Minor v. Happersett. What he omits, of course, is the part where this distinction falls apart. The complete paragraph including the part Jake quoted is:
So much for a clear distinction.
August 31, 2010, 8:22 pmleo marvin says:
Enough with all this “Obama the secret Muslim” nonsense. Everyone knows Obama’s marching orders come from Soros (via encrypted messages in Krugman’s and Rich’s columns), and Soros is a Stalinist, not a Muslim. True, islamofascists are the same as nazis, except worse, and nazism is just a moderate offshoot of communism, so there is some strong ideological continuity there. But here’s the thing: Islam is totally gay, and Obama opposes gay marriage. Explain that!
August 31, 2010, 8:33 pmChris Travers says:
There is no basis to this division based solely on parentage. A natural-born citizen is one who is not naturalized post-birth. That’s been the definition since before the revolution and was clearly in the 1790 naturalization act. This means children born here regardless of parents (except for those who are here by treaty or similar arrangement, such as Native Americans, foreign diplomats, foreign soldiers stationed temporarily under treaty, and the like), but also those to whom statute extends citizenship at birth, such as Native Americans, children born abroad to US citizens assuming residency requirements are met, etc.
Of course, I’d humbly submit a different reading of the relevant section of the Constitution:
Now, parsing this clause is difficult due to the commas, but I’d conclude that normally we see the structure of “term, or …,” as being an alternate explanation for the term. Therefore I’d suggest that “natural born Citizen” here means a “Citizen of the United States, at the time of the Adoption of this Constitution.”
Moreover, I’d conclude that the age requirement of 35 years is only applicable to those who have resided in this country for fourteen years, so someone 14 years of age who is a citizen meeting other criteria, but has never previously set foot in this country is eligible, but someone who is 34 years of age who has lived here his whole life is not.
(Just pointing out this clause is a mess)
August 31, 2010, 8:33 pmMANEGO says:
An entire thread devoted to a troll post. Well done, VC.
August 31, 2010, 8:34 pmJakeD says:
Chris Travers:
“I’d conclude that the age requirement of 35 years is only applicable to those who have resided in this country for fourteen years…….”
You are joking, right?
August 31, 2010, 8:38 pmVince Treacy says:
Readers should be aware that, in the passage quoted by Jake D, Bingham was not even talking about the 14th Amendment, which had not even been introduced at that time. He was discussing the Civil Rights Act, which President Andrew Johnson opposed. The Republicans put the citizenship definition in an Amendment to make it permanent. This is the problem with cherry picking stuff from the net, out of context. The language of the Amendment differed from the Act.
The reader should also be aware that the question left open in Minor was resolved in Wong Kim Ark, which wrote that a person born of aliens in the United States “is as much a citizen as the natural-born child of a citizen.”
Jurisdiction is power. A person born in the United States is a citizen by virtue of his or her birth, that is, a natural born rather than naturalized, citizen, unless he or she is not subject to its jurisdiction. Who are exempt from its jurisdiction? Well, the children of ambassadors, for one, since they are beyond the power to be arrested. Children of hostile occupying military forces, for another, since they are beyond jurisdiction. The exception originally applied to American Indians, but that has been eliminated by statute.
Neither Kenya, nor the British Empire, nor any other nation had any power or jurisdiction over Obama at birth. He had conditional Kenyan citizenship by virtue of his father’s Kenyan citizenship, but that lapsed when he failed to claim it by age 21. Kenya never had any jurisdiction or power over him, since he never went there.
There have been thousands of postings on the Turley blog on this topic, beginning with the lawsuit of Leo Donofrio in 2008. Most can be located by searching terms like Donofrio, Taitz, retired general, and natural born citizen. I have written hundreds of those posting myself, many on the two citizen theory. Mick must have been unaware of these discussions.
There is nothing in the Constitution that requires two citizen parents, no language at all, and nothing that requires that interpretation. The Supreme Court has written that there are two kinds citizens, native born [born in the United States itself] and naturalized. The only difference between them is that naturalized citizens may not serve as President or Vice President.
The two citizen idea was rejected on the merits by the court in Ankeny v. Governor of Indiana, http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf., by a court of general jurisdiction not limited by Article III case or controversy standing limitations. The State’s highest court left it standing. The birthers could have petitioned for cert, but let the time pass. The trial court has a good discussion of the issue.
http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf
The two citizen notion is just a crank constitutional theory, on a level with the guys who think that women are barred from the Presidency because the constitutional amendment only gave them the right to vote, and did not amend the parts that refer to the President as “he.”
August 31, 2010, 8:50 pmDave M. says:
Nope. I believe they were living in Hawaii. It’s more like Obama’s father wasn’t a U.S. citizen and wasn’t domiciled in the United States. But I’m not even concerned with that.
I’m focusing more on the larger problem of children of unlawful entrants.
August 31, 2010, 8:51 pmChris Travers says:
Yep. Just noting how hard it is to strictly construe the textual constructions in the Constitution.
August 31, 2010, 8:54 pmDave M. says:
Incorrect. The question in Heart of Atlanta was pretty broad.
Seems almost straightforward there. They were asking the Court for an up or down vote on the constitutionality of the law “as applied.”
The issue as presented and accepted by the Court here didn’t hem it into qualifying the legal issue with the specific facts of the case.
August 31, 2010, 8:57 pmChris Travers says:
Agreed, except that native born citizens also extends to children of US citizens born abroad, who are granted such citizenship at birth through statute. Such was the case in 1790 and I see no reason to doubt that this has changed since then.
August 31, 2010, 8:59 pmChris Travers says:
Also you missed the point that my suggested reading would disqualify everyone alive today from serving as POTUS.
August 31, 2010, 9:03 pmAndrew says:
Just FYI, the apostasy issue was flagged in the NY Times well before Obama was elected.
http://www.nytimes.com/2008/05/12/opinion/12luttwak.html
But apparently there isn’t a spot on the original 1961 form for religion, so apostasy cannot have anything to do with the suppression of the 1961 form. More likely the White House just feels indignant about providing a document that mere citizens are interested on seeing.
August 31, 2010, 9:06 pmChris Travers says:
The Equal Protection Clause doesn’t bind the Federal Government.
August 31, 2010, 9:07 pmVince Treacy says:
Chris, most but not all authorities agree that children born to US citizens abroad are “natural born.” They are not “native born” because they were not born in the US. See Mr. Sterngard Friegen up above on the term “native born.” The term “native born” refers to persons actually born in the United States.
A native born citizen is a natural born citizen.
According to most authorities, some natural born citizens, like McCain, may not be native born.
August 31, 2010, 9:08 pmRexx says:
Governor Schwarzenegger and those who would like to see him become President do not believe this, else why would they want an Constitutional Amendment allowing him to run?
August 31, 2010, 9:11 pmVince Treacy says:
Chris: “The Equal Protection Clause doesn’t bind the Federal Government.”
No, the Supreme Court ruled in 1954 that the Federal Government IS bound by the Equal Protection Clause through the Due Process Clause of the Fifth Amendment.
The Court used the equal protection aspect of the due process clause to outlaw school discrimination in
August 31, 2010, 9:18 pmD.C. at the same time it handed down Brown v. Board of Education.
Vince Treacy says:
James says: “Everyone is missing the important part of the 14th Amendment: The Equal Protection Clause.
“It doesn’t matter where Obama, Arnold, or Jennifer Graham were born, or who their parents were. Once you become a US Citizen, (and meet the age and residency requirements) you are eligible to become President, because the clause requires equal protection: naturalized and natural born alike may be president.”
Actually, James, this has come up in a DC Circuit case. People in DC argued that they were denied equal protection because they have no representation in Congress. The Court rejected the argument.
Even though Equal Protection applies to all legislation by Congress and actions by the President, it does not apply to inequalities in the Constitution itself.
The most glaring inequality is the unequal representation of citizens in the Senate. Wyoming and California have the same number of Senators despite the difference in population.
So that dog won’t hunt.
August 31, 2010, 9:28 pmjukeboxgrad says:
That’s what you wish she said, but it’s not what she said. She said this:
That doesn’t mean what you’re claiming it means.
Please consider these two statements:
A) It’s right for them to do it.
B) They have the right to do it.
Those statements could be applied to mosque-builders or birthers. Those statements do not mean the same thing, even though you are pretending they mean the same thing. Palin said A, not B.
She also said that challenging Obama on his birth certificate is “a fair question,” even though, according to WSJ, “Obama has proved that he is a native of Hawaii.”
There’s a word for people who think it’s “fair” to challenge Obama on his birth certificate even though he’s already proven that he’s a native of Hawaii: birther.
Here’s how the wacky leftists at WSJ answered that question:
WSJ is obviously part of the conspiracy to defend the Kenyan usurper.
JakeD at least made a pretense of presenting an argument.
August 31, 2010, 9:45 pmChris Travers says:
Not the way I read it. The Supreme Court ruled in that decision equal protection was a requirement of substantive due process, not that the EPC itself bound the federal government.
This makes a difference because it means that the EPC can’t be read as affecting federal powers/offices/etc. in terms of the text of the Constitution. So you can’t argue that the EPC changed the requirements for President.
August 31, 2010, 9:49 pmChris Travers says:
This argument strikes me as entirely specious because the very first Naturalization Act (of 1790) clearly designates children of US citizens born abroad as “natural born” citizens unless the father is a US citizen who has never resided in the US. The fact that the very first Congress believed this to be the view of the Constitution strikes me as a very high hurdle to overcome for those who wish to argue otherwise.
For a long time, this language remained. I think it’s clear that this is what Congress believed for many decades and it seems more clearly cut than whether the Alien and Sedition Acts were unconstitutional.
August 31, 2010, 9:52 pmVince Treacy says:
Chris, I did not argue that the EP clause “changed the requirements for President.” See, e.g., my post at 9:28 PM.
The EP does not affect an inequality in the text of the Constitution, like the different treatment of natural born and naturalized citizens for the Presidency.
But the Federal Government — Congress, President, and Courts– is bound. A law restricting cabinet offices to natural born citizens would be unconstitutional.
August 31, 2010, 10:04 pmVince Treacy says:
Chris: “This argument strikes me as entirely specious…”
It is not an argument, but a clarification of terms. Native born means born on United States soil.
Most authorities give a broader meaning to natural born, to mean “born as a US citizen,” and include both native born persons (Obama) and persons born to US citizens abroad (McCain) in the term.
Once again. A native born citizen was born on US soil and is a natural born citizen.
Please reread Sterngard’s posting. Sterngard is a veteran poster at politijab.
Sterngard Friegen says:
MCM — Some of the most literate people of the 18th Century wrote our Constitution They even had a “style committee” to make sure it was done in a way that they thought would be appropriate. Did they have the word “native”? Beats me. But they had the word “natural,” which had a contemporaneous meaning for them. My “proof”? Take a look at the 26 volume Oxford English Dictionary, first meaning. While it is now an archaic meaning, it was the meaning at the time.
But your post makes an even more important point. If the Framers wanted to make sure that only those born of citizens would be considered “natural born Citizens,” they would have written that rather than hoping people would resort to some hidden meaning buried in a Swiss legal philosopher’s French language survey of the law of Europe (a survey which didn’t, by the way, use the word “natural born” at all but “indigenes”; “natural born” didn’t show up until a 1797 English translation).
In fact, the similar phrase “natural born subject” had several hundred years of meaning — it meant “native born” (as we now understand and use the term “native”). Why would the Framers use a parallel term but seek to ascribe a very different meaning to it? It defies common sense. But that’s what the birthers are all about in looking for a magic bullet to disqualify the scary black man in the White House.
Quote
August 31, 2010, 10:15 pmAugust 31, 2010, 2:18 pm
Ricardo says:
Um, no.
August 31, 2010, 10:26 pmChris Travers says:
In general that would be correct, I would think. I’d assume that other than the President and Vice President offices, that such a restriction, to be Constitutional, would have to meet strict scrutiny.
August 31, 2010, 11:36 pmOrin Kerr says:
JukeBoxGrad, welcome back. Your research and links are always very much appreciated.
August 31, 2010, 11:56 pmjukeboxgrad says:
Thanks, Orin. That means a lot to me. The respect is mutual.
I never really leave. There are just long periods where I have time to read but not write. That pattern will probably continue.
September 1, 2010, 12:01 amGuy says:
But aren’t they domiciled in the U.S. as well?
September 1, 2010, 12:16 amJ. Aldridge says:
One thing that bothers me about Obama’s released BC is the certificate No.: No. 151 – 1961 – 10641
All other released BC’s for August 1961 use – 61 – instead of – 1961 -.
Also interesting are those born in August 1961 were able to obtain their long form BC.
Not that any of this matters in the big picture.
September 1, 2010, 1:43 amVooodooo84 says:
A vote for the Constitution Party is generally wasted
September 1, 2010, 1:58 amjukeboxgrad says:
Is “all other released” a euphemism for ‘the Nordykes BC’s I read about in WND?’ Or can you support this claim with anything remotely resembling evidence?
The key word in that sentence is “were.” Hawaii used to issue them, but doesn’t anymore. Why is that “interesting?”
September 1, 2010, 2:23 amJ. Aldridge says:
Interesting as in whether they still retain the long form information since their short forms omit most of the info from the long forms. Do you have any evidence whether HI still retains long form info they omit from the short form?
September 1, 2010, 3:09 amMick says:
Chris Travers says:
J. Aldridge: That is all natural born citizenship is, inheritance under the laws of nature and not statute or location.
Yet Congress saw fit to state that children born of US citizens abroad were “natural born” citizens in 1790.
FRAUD!
Common, That’s an easy one. The NA 1790 was repealed by the NA 1795, which took out the words Natural Born. The combination of the 2 Acts make it clear that birth in the US of US Citizen parents defines a Natural Born Citizen.
September 1, 2010, 4:01 amMick says:
Vince Treacy says:
James says: “Everyone is missing the important part of the 14th Amendment: The Equal Protection Clause.
There is no “right” to be POTUS. One must be eligible. Are you saying that the requirements for POTUS violate the equal protection of 34 year olds?
September 1, 2010, 4:23 amMick says:
Brett says:
“That comment makes me laugh. Does that mean that I’m actually a British citizen, because my dad’s one? I’ve been living a lie!”
No it means that if you were born in the US while your dad was a British citizen (and married to a US Citizen mother), that you were born a dual citizen. Place of domicile would determine which country had jourisdiction over you until the age of majority, at which time place of domicile (if in the US) would naturalize you by “election”.
September 1, 2010, 4:33 amWhat you all are not understanding is that Citizen and Natural Born Citizen are 2 seperate things as demonstrated by A2S1C5 (“OR A CITIZEN….”). The founders knew that they were citizens of the US in 1787, but were not Natural Born Citizens since they were born British subjects. Citizens have no more rights than Natural Born Citizens, but only NBCs are eligible to be POTUS. This concept is demonstrated in WKA when Gray quotes Story and says, “the citizen child of an alien has the same rights as the Natural born child of a Citizen”.
Mick says:
I want to thank professor Kerr for starting this thread!
“Jourisdiction” is the whole basis of this argument. If you read the Civil Rights Act of 1866, jourisdiction is said to be “jourisdiction of the US and NO OTHER FOREIGN POWER”. The legislative intent of the 14 A was to incorporate the Civil Rights Act of 1866 into the USC, so that states would be compelled to grant citizenship to negroes and their children. “Jourisdiction” was ruled as meaning “subject to the jurisdiction of the US and no other foreign power” in Elk v. Wilkins (1885), 19 years after the 14A was ratified.
In Wong Kim Ark the same justice (Gray) ruled that children of RESIDENT ALIENS (who had legally accepted jourisdiction) who were NOT Naturalizable (the parents were subject to the Chinese Exclusionary Acts)were citizens, NOT that they were Natural Born Citizens. Justice Gray actually compared Wong to the children of Negro slaves, given citizenship by the 14A, and whose parents were not allowed to be citizens before Emancipation.
In Wong Kim Ark justice Gray repeated the Vattel Law of Nations definition of Natural Born Citizen found in Minor v. Happersett (1874) by stating that the children of US Citizens born in the US are Natural Born Citizens, also stating that the question before him was whether the child of an alien born in the US is even a “citizen”, not whether that child is a Natural Born Citizen. He also quoted Joseph Story, “the CITIZEN child of an alien has the same rights as the NATURAL BORN CHILD of a Citizen”.
No statute is needed to make a child born in the US of US Citizen parents a Natural Born Citizen. The US has immediate and SOLE JOURISDICTION over parents and child. It is a concept of Natural Law, and the Laws of Nature are what the whole “Republican” experiment and Constitution are based on, as evidenced by the Declaration of Independence. Natural Law is embedded in the USC at A1S8C10 (law of nations) as our common law of international relations, which include citizenship issues. It is ancient Natural Law that a people be led by one of there own, an indigenous citizen, born of it’s citizens on it’s soil. The Natural Born Citizen requirement is a security measure, designed to ensure the highest PROBABILITY of Allegiance and Attachment in the Commander in Chief of the Armed forces, and to reduce the possibility of Foreign influence on the highest office. This is verified by the Federalist Papers. If that is the case, would the framers have possibly thought that the children of aliens, born in the US could be POTUS?
An overdue book, some 220 years overdue was recently returned to the NY Library. It was said to be open on G. Washington’s desk often after his inauguration in NY. In it were theories of Natural Law, the same laws that were referred to in the Declaration of Independence. The Declaration of Independence said our freedom is based on NATURAL LAW, not British Common Law (that would be ridiculous, seeing as how we fought to throw off the BCL that we found suffocating). That book defined Natural Born Citizens as INDIGENOUS Citizens, born fromm within the citizenry on the soil of a nation.
That book was Vattel’s “Law of Nations”. I think this story refutes all the Obama apologists, who say that Vattel was not the inspiration of the term of art “Natural Born Citizen”. It was George Washington speaking from the grave.
http://theweek.com/article/index/203282/george-washingtons-221-year-overdue-library-book-a-timeline
September 1, 2010, 5:26 amMick says:
Ricardo says:
“Dave M.: “Subject” and “citizen” aren’t interchangeable terms.
Nobody said they were literally interchangeable. The point is that if you want to assert that “natural born citizen” has a certain precise meaning, you have to cite authority for that meaning. Blackstone is a pretty good authority…”
So why not cite the deinition from the source where the actual, literally exact term appeared, rather than extrapolate it from Blackstone, where one would have to do the mental gymnastics of equating “Subject” with “Citizen” which mean different levels of acceptance of jourisdiction. Vattel defined the EXACT TERM, and was certainly studied by the framers.
http://theweek.com/article/index/203282/george-washingtons-221-year-overdue-library-book-a-timeline
September 1, 2010, 5:34 amRicardo says:
Simple, because de Vattel was writing a treatise on the law of nations. Both Blackstone and the founders knew that citizenship was regulated by municipal and not international law. It has always been the rule that where statutory or constitutional law is silent, the default fallback is English common law and not treatises written by Swiss legal scholars.
September 1, 2010, 5:45 amMick says:
Chris Travers says:
“JakeD: The Fourteenth Amendment draws a CLEAR distinction between the children of aliens and children of citizens.
Then he goes on to quote Minor v. Happersett. What he omits, of course, is the part where this distinction falls apart. The complete paragraph including the part Jake quoted is:”
Ah the level of Obfuscation is the sure sign of an Obama apologist. The dicta of M v. H
September 1, 2010, 5:46 amdefines Natural Born Citizen, then goes on to say that there are doubts as to whether children of aliens are even “Citizens”. The judge didn’t say it was doubtful that they were “Natural Born Citizens.” He clearly makes the distinction. The apologists like to say that this indicates there are a whole slew of different Natural Born Citizens, and that those born on uS soil of US Citizens are just one type. They like to say that a Natural Born Citizen is the same as a “Citizen at birth”, like those described in Title 8 Section 1401, which includes those born abroad to one citizen parent, who are CRETAINLY not NBCs.
Neither the 14A nor Title 8 contain the words Natural Born Citizen.
Mick says:
Ricardo said,
“Simple, because de Vattel was writing a treatise on the law of nations. Both Blackstone and the founders knew that citizenship was regulated by municipal and not international law. It has always been the rule that where statutory or constitutional law is silent, the default fallback is English common law and not treatises written by Swiss legal scholars.”
Nonsense. International Law recognizes the right of all nations to define their citizenship laws, and, like the US, may define as Citizens, those born Inernationally of it’s citizens—that’s Natural Law. The USC is certainly not silent on the meaning of NBC (so you can’t just make it what you want), and is supported by a number of SCOTUS case dictas (including The Venus in 1814, only 27 years after ratification) which directly quote Vattel, which was the most quoted source of SCOTUS in the 19th century ( and sourced by Scalia recently in Heller).
September 1, 2010, 5:54 amMick says:
Guy says,
“But aren’t they domiciled in the U.S. as well?”
No Obama Sr. was here on a student Visa. Obama’s relavent admission at “Fight the Smears”:
”
“When Barack Obama Jr. was born on Aug. 4,1961, in Honolulu, Kenya was a British colony, still part of the United Kingdom’s dwindling empire. As a Kenyan native, Barack Obama Sr. was a British subject whose citizenship status was governed by The British Nationality Act of 1948. That same act governed the status of Obama Sr.‘s children.
Since Sen. Obama has neither renounced his U.S. citizenship nor sworn an oath of allegiance to Kenya, his Kenyan citizenship automatically expired on Aug. 4,1982.”
How can one born a British Subject be a Natural Born Citizen of the US eligible to be POTUS in light of the well known rationale that the requirement was designed to prevent foreign influence?
September 1, 2010, 6:07 amMick says:
In resolution 511 Congress declared John McCain to be a Natural Born Citizen since he was “BORN IN US Controled Territory” of “Citizen parents”, reflecting exactly he same 2 Blood and soil requirements that Vattel defined. They didn’t answer the more exact question, since he was born in Colon, Panama, across from the base. Would Panama’s “birthright” citizenship laws at the time exclude McCain as a Panamanian citizen because his father was part of a foreign army? Their cite of the US Naturalization Act of 1790 is meaningless, since it was repealed by the NA 1795, which cancelled the words “Natural Born”. So they never fully answered the question, did McCain have dual citizenship at birth? That is still up in the air, but Obama admits to dual citizenship at birth, and that alone excludes him from eligibility.
September 1, 2010, 6:31 amLaurence Tribe, a Harvard Constitutional Law professor that I’m sure that you all are aquainted, along with Ted Olsen testified as to the meaning of Natural Born Citizen at the Res. 511 hearings. They said that a Natural Born Citizen was one “born WITHIN a Nation’s TERRITORY AND ALLEGIANCE”. Lets break that down. Within the territory is obviously within territory controlled by the US (which would include Puerto Rico, and DC District). Now when they say WITHIN the Allegiance of a Nation that cannot mean that the child has an allegiance outside of the nation, and true allegiance is a Singular concept is it not. It would certainly be more desirable that the CIC of the Armed forces not have ever had a foreign allegiance. Where is a childs allegiance? Well, first to his/her parents, and by extention to the parent’s country.
Mick says:
leo marvin says:
“I so want to believe that comment is real, but it’s so-o-o-o brilliant I have to admit it gives me pause.”
If you are referring to my comment to Turley, YES it is real.
September 1, 2010, 6:38 amMick says:
Welsh Dragon said,
“Actually if there was no legitimate marriage there would be no dual citizenship. Under the UK Nationality Act 1948 citizenship by descent was only confered at birth on legitmate children.Illegitiamte children could only acquire it if their parents subsequently married.”
I believe you may be correct WD. But there is a legal divorce decree on file which verifies the legal fact of their marraige.
http://citizenwells.wordpress.com/2009/01/02/obamas-parents-divorce-decree-stanley-ann-soetoro-lolo-soetoro-child-custody-obama-indonesian-obama-not-natural-born-citizen-obama-born-in-kenya/
September 1, 2010, 6:52 amMick says:
Vince Treacy said,
“A native born citizen is a natural born citizen”.
Incorrect, a native born child of 2 US Citizen parents is a Natural Born Citizen. A Native Born Citizen of 2 aliens, by the correct reading of the 14A is not a US Citizen at all.
September 1, 2010, 6:58 amAndrew says:
JukeBoxGrad quoted the Wall Street Journal as saying that Obama has released the only type of birth certificate that the State of Hawaii makes available.
That’s not exactly correct. While the State of Hawaii does not normally provide copies of the original document (including the name of the hospital and doctor), it sometimes has done so (which is how we know what one looks like, e.g. see the Nordyke document that I linked to above). In this particular instance, Janice Okubo of the Hawaii Department of Health has said: “If someone from Obama’s campaign gave us permission in person and presented some kind of verification that he or she was Obama’s designee, we could release the vital record.”
It’s unfortunate that the WSJ misspoke about this, but it seems clear that the WSJ did so.
September 1, 2010, 7:24 amAndrew says:
Incidentally, that statement by Okubo was in reply to a request for “a copy of Obama’s birth certificate, and related files and records”, after the 2007 COLB had already been released.
Incidentally, at this point I don’t think any respectable media outlet is contending that the original 1961 form no longer exists, so it’s kind of hard to imagine that the State of Hawaii would refuse to provide a copy to POTUS. I’m not losing any sleep over the continued suppression of the document by the White Housr, but it seems pretty clear that (for whatever reason) it’s being suppressed.
September 1, 2010, 7:42 amMick says:
PersonFromPorlock says:
“Well, if we’re going to be fiddly, any close reading of Article Two Section One:
No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President….
shows that all eligible persons had to be present “at the time of the adoption of this Constitution.” Thus, Martin van Buren (b.1782) was the last legitimate president.”
Wrong, A2S1C5 makes the distinction between Natural Born Citizen and Citizen. It is the “grandfather clause” that allows those present during the Revolution and ratification of the USC to be President even though they were not Natural Born Citizen, since they were born British Subjects. Van Buren was the first Natural Born Citizen, since his parents became citizens at the ratification preceeding his birth.
September 1, 2010, 7:46 amJ. Aldridge says:
Do you know why “natural born” was dropped?
I’ll give you a clue: Did Congress ever pass a law that says who is a citizen at birth within States?
September 1, 2010, 7:47 amMick says:
Orin Kerr says:
“The “gem” comment makes a comprehensible legal argument, even if it is wrong or overstated. That makes the comment a lot better than a lot of others on this subject, such as those that just resort to name-calling.”
Thanks for posting this Prof. Kerr. But it is not “wrong or “overstated”, and no one here has proven me wrong. I do’t see your opinion on the matter here though.
September 1, 2010, 7:53 amMick says:
Arkady says:
“It’s easily provable on the basis of that “natural born citizen” vs “native born citizen” nonsense that very few of us would be eligible to be president of the United States, including, probably, Ronald Reagan.”
Another that doesn’t get it or doesn’t want to. The Natural Born Citizen requirement of the POTUS and VP only requires that ones parents be citizens when born on the soil, not that they be Native Americans.
September 1, 2010, 7:56 amMick says:
Aldridge said,
“Do you know why “natural born” was dropped?
I’ll give you a clue: Did Congress ever pass a law that says who is a citizen at birth within States?”
Of course, because they had ammended the USC to include as NBCs those born overseas, when the original meaning only made those born within US territory of US Citizen parents eligible Natural Born Citizens. Congress can make naturalization law, but cannot ammend the body of the Constitution (A2S1C5) w/o the Constitutional Congress ammendment process. They wanted to include the children of those who fought the Revolution as eligible, but quickly closed that door. It’s funny how congress cited the NA 1790 in Res. 511, when they should know that it would only apply to McCain if he was born between 1790-1795. HMMM. Let’s see, who sponsored that Resolution (which has no force of law), ah yes, Obama. Quid Pro Quo.
September 1, 2010, 8:03 amPersonFromPorlock says:
You miss my point. Read exactly, A2S1 says that whether citizen or ‘natural born’ citizen, any eligible person had to be such “at the time of the adoption of this Constitution.” Regardless of other qualifying factors, the set of persons eligible to be president therefore became empty when the last person alive at the time of the Constitution’s adoption died.
This point is raised mostly to discomfit those who place a great deal of emphasis on where the commas fall in the Second Amendment.
September 1, 2010, 8:05 amMick says:
PersonFromPorlock says:
“Mick: Wrong, A2S1C5 makes the distinction between Natural Born Citizen and Citizen.
You miss my point. Read exactly, A2S1 says that whether citizen or ‘natural born’ citizen, any eligible person had to be such “at the time of the adoption of this Constitution.” Regardless of other qualifying factors, the set of persons eligible to be president therefore became empty when the last person alive at the time of the Constitution’s adoption died.
This point is raised mostly to discomfit those who place a great deal of emphasis on where the commas fall in the Second Amendment.”
Yes I have seen that argument, but what do YOU think. It would be silly to insert an expiring security requirement. Some people say it was to prevent Hamilton from being POTUS, but he was a Citizen in 1787 so he would have been grandfathered in.
September 1, 2010, 8:12 amStopFloggingDeadHorse says:
Not releasing a document that no law requires releasing is not “suppressing”. I could ask to see your tax returns. However, since I have no right to see them it would be incorrect to say you were “suppressing” them if you told me to F-off.
The facts are quite simple-Obama has released his birth certificate, something no previous candidate ever did, and something he was under no legal requirement to do. If that isn’t good enough for you, you have a remedy-don’t vote for him in 2012.
September 1, 2010, 8:16 amStopFloggingDeadHorse says:
Mick (AKA yguy): The court in Ankeny disagrees with you. Yes, they are a state court, so what? It could have been appealed, but it wasn’t. Tough luck…
September 1, 2010, 8:18 amStopFloggingDeadHorse says:
Mick (AKA yguy): The court in Ankeny disagrees with you. Yes, they are a state court, so what? It could have been appealed, but it wasn’t. Tough luck…
September 1, 2010, 8:18 amMick says:
Vince Treacy said,
“But your post makes an even more important point. If the Framers wanted to make sure that only those born of citizens would be considered “natural born Citizens,” they would have written that rather than hoping people would resort to some hidden meaning buried in a Swiss legal philosopher’s French language survey of the law of Europe (a survey which didn’t, by the way, use the word “natural born” at all but “indigenes”; “natural born” didn’t show up until a 1797 English translation).”
The USC was written in the plain language of the day, for the ommon man to undrestand. The meaning of Natural Born Citizen was widely known at the time. That meaning has been verified by SCOTUS dicta over centuries. There are plenty of terms in the Constitution that weren’t given a stated definition, “Corruption by Blood”, “Letters of Marquis”, and “Ex Post Facto” to name a few.
September 1, 2010, 8:27 amVince Treacy says:
Mick says “In resolution 511 Congress declared John McCain to be a Natural Born Citizen since he was “BORN IN US Controled Territory” of “Citizen parents”, reflecting exactly he same 2 Blood and soil requirements that Vattel defined. They didn’t answer the more exact question, since he was born in Colon, Panama, across from the base.” September 1, 2010, 6:31 am
Sorry, but Mick has been hoaxed by a forged birth certificate on the web that has long taken in gullible birthers. Dr. Conspiracy long ago exposed this little charade at his site.
http://www.obamaconspiracy.org/2010/04/john-mccains-fake-birth-certificate/
(Use search terms McCain, panama, birth in Doc’ search window).
McCain, unlike Obama, never released his birth certificate to the press or independent fact checking organizations. But it was shown to a Washington Post reporter, Michael Dobbs: “A senior official of the McCain campaign showed a reporter [Dobbs]a copy of the senator’s birth certificate issued by Canal Zone health authorities, recording his birth in the Coco Solo ‘family hospital.’” So McCain was in fact born in the Canal Zone, not in Colon. Dobbs wrote that in his autobiography, “Faith of My Fathers,” McCain wrote that he was born “in the Canal Zone” at the U.S. Naval Air Station in Coco Solo, which was under the command of his grandfather, John S. McCain Sr. “The senator’s father, John S. McCain Jr., was an executive officer on a submarine, also based in Coco Solo. His mother, Roberta McCain, now 96, has vivid memories of lying in bed listening to raucous celebrations of her son’s birth from the nearby officers’ club. The birth was announced days later in the English-language Panamanian American newspaper.”
See: McCain’s Birth Abroad Stirs Legal Debate
His Eligibility for Presidency Is Questioned
By Michael Dobbs
Washington Post Staff Writer
Friday, May 2, 2008
http://www.washingtonpost.com/wp-dyn/content/article/2008/05/01/AR2008050103224_pf.html
(web search Post, Dobbs, McCain, birth, Panama).
(Poor, hapless Air Force Lt. Colonel Lakin thinks that McCain released his birth certificate to Congress, but it does not appear to have happened).
Sooooo…. it sure looks as if the poster who cried “Fraud!!!” has been perpetuating, perhaps unknowingly, an ongoing internet fraud. McCain was not born across from the base in Colon. He was born in a small medical facility in the sub base in the Zone itself. Now that the facts are established, maybe the debate can continue with a little less heat.
I hope this helps to clarify the debate a little by removing some obvious misinformation.
September 1, 2010, 8:30 amAndrew says:
To “suppress” means to withhold from publication or disclosure.
http://dictionary.reference.com/browse/suppress
That’s what has been happening with the 1961 birth certificate for quite sometime, which is mystifying to me. It reminds me of a certain Hans Christian Anderson tale.
I never said that Obama has a legal duty to release it, but then again he doesn’t have a legal duty to do a lot if things he does, such as holding press conferences.
Mccain’s original birth certificate is publicly available, and I suspect the same us true if many presidents. There is greater reason for Obama’s to be publicly available. Unlike McCain, Obama was elected. Unlike most presidents, Obama did not have US citizen parents from whom he could automatically receive citizenship regardless if birth location. Unlike most presidents, it’s been verified that Obama was flying across the Pacific Ocean before he was a month old (between Hawaii and Seattle), which is unusual but not proof of anything. Many presidential candidates have had their eligilibity questioned, and as far as I know none of them have suppressed something so innocuous as an original birth certificate showing the doctor and hospital.
Anyway, whether I voted for or against Obama had nothing to do with his suppression of this innocuous document.
September 1, 2010, 8:33 amMick says:
That case was denied on Standing, not the merits of the case. The NBC definition was grandstanding by an activist court trying to cover for Obama, and means nothing. It wasn’t appealed because the plaintiffs thought that they would have the same “standing” problem. As per the USC, the SCOTUS has the final say on what Constitutional terms mean.
September 1, 2010, 8:33 amVince Treacy says:
Mick said “The USC was written in the plain language of the day, for the [c]ommon man to und[e]rstand. The meaning of Natural Born Citizen was widely known at the time. That meaning has been verified by SCOTUS dicta over centuries. There are plenty of terms in the Constitution that weren’t given a stated definition, “Corruption by Blood”, “Letters of Marquis [Marque]”, and “Ex Post Facto” to name a few.”
Yes, and all those terms, like many others in the Constitution, were taken from the English common law, where the words “natural born” were taken from. The Supreme Court looked to the common law in an early case to limit ex post facto to criminal statutes.
In the common law commentaries of Blackstone, “natural born” subjects were all persons born in the realm, regardless of the citizenship of the parents, other than offspring of diplomats. So the plain language of the day, understood by the common man, was that natural born citizens included all persons born in the United States, regardless of the citizenship of their parents.
Vattel’s little treatise did not even include the translation “natural born citizen” until ten years after the Constitutional Convention. The copy borrowed by George Washington did not have those words in English.
September 1, 2010, 8:40 amStopFloggingDeadHorse says:
So are you suppressing your tax returns, credit card statements, diaries, intimate notes to your spouse? To the best of my knowledge you haven’t published them nor disclosed them. I demand you release all of the above IMMEDIATELY.
A link would be greatly appreciated.
September 1, 2010, 8:41 amStopFloggingDeadHorse says:
yguy-No, Ankeny was not denied on Standing. The court specifically examined the “merits” of the 2 citizen parents and rejected it. Cases not appealed to the Supreme Court within the specified deadline stand. We can’t base law on speculation about what the Supreme Court “might” do. You are simply arguing an exotic legal theory, certainly not law, nor anything that serious people need to take notice of.
September 1, 2010, 8:45 amcecil kirksey says:
Hmmm. The first sentence of the 14A is:
“Section 1. 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.”
Now by your logic children, born in the US, whose parents were imported slaves are not citizens. And their children will not be citizens either.
The quoted sentence is straight forward and not ambiguous. If you are born in the US and subject to its jurisdiction you are a US citizen regardless of the status of your parents. Simple.
September 1, 2010, 8:46 amArkady says:
Native Americans? Is that a joke? If not, and that’s indicative of your level of reading comprehension, then not a thing you write is worth a nanosecond of attention.
September 1, 2010, 8:46 amStopFloggingDeadHorse says:
wait, I forgot, FRAUD!
September 1, 2010, 8:46 amVince Treacy says:
Mick, there is nothing about standing in Ankeny, because it was decided by a state court of general jurisdiction, not an article III court. The court dismissed for failure to state a claim on which relief could be granted. They could have taken it to the Supreme Court on cert on the merits, but they did not.
Mick cannot quote anything on standing in that case. Here it is. Everyone can read for themselves.
http://www.in.gov/judiciary/opinions/pdf/11120903.ebb.pdf
September 1, 2010, 8:47 amMick says:
Vince treacy said,
“Sooooo…. it sure looks as if the poster who cried “Fraud!!!” has been perpetuating, perhaps unknowingly, an ongoing internet fraud. McCain was not born across from the base in Colon. He was born in a small medical facility in the sub base in the Zone itself. Now that the facts are established, maybe the debate can continue with a little less heat.”
First, the Panama Canal Zone was leased. Leased property belongs to the owner, not the lessee. Third was this little quip:
September 1, 2010, 8:56 am“Curiously enough, there is no record of McCain’s birth in the Panama Canal Zone Health Department’s bound birth registers, which are publicly available at the National Archives in College Park. A search of the “Child Born Abroad” records of the U.S. consular service for August 1936 included many U.S. citizens born in the Canal Zone but did not turn up any mention of John McCain.”
You mean that his father and grandfather were bigwig commanders and they didn’t record his birth?
There is certainly enough gray area there for discussion, but the fact remains that the US had no “ownership” of the Canal Zone, it was leased. The fact also remains that Res. 511 made a point to say that McCain was born in “US CONTROLLED” territory of US CITIZEN parents. If that is the reason he is a Natural Born Citizen, then how is Obama a Natural Born Citizen? HMMM
Mick says:
Ah the Obama apologist obfuscator has gone to work ignoring the major points as to why Obama is not eligible, and focuses on irrelevencies. Failure to state a claim on which relief can be granted IS Standing. This activist state court’s opinion means zero.
September 1, 2010, 9:00 amGuy says:
Mick, why should a treatise on international law be a better authority than Blackstone’s Commentaries on the Laws of England? Surely reading “indigenes” as “natural born citizens” is at least as much “mental gymnastics”, and as has been noted, “natural born citizen” is terminology taken from common law, so presumably one would look to common law authority.
September 1, 2010, 9:01 amAndrew says:
StopFloggingDeadHorse, here’s a link to what appears to be McCain’s:
http://commons.wikimedia.org/wiki/File:McCain_Certificate_of_Birth.jpg
I’ve just been commenting here from my iPhone, so am not able to easily research stuff like this. In any case, like I said, Obama (unlike McCain) was elected, and there is no natural born citizen requirement to be a US Senator.
September 1, 2010, 9:02 amStopFloggingDeadHorse says:
Mike (AKA yguy)-Do you understand the difference between “and” vs “or”? A natural born citizen is either: 1. Born in the US; OR 2. Born outside the US to US citizen parents. This is the same as saying in baseball that the batter is out at first if either the first baseman touches the base while holding the ball OR tags the runner. It isn’t necessary to do both (though a fielder could if he wanted to).
September 1, 2010, 9:03 amcboldt says:
– Failure to state a claim on which relief can be granted IS Standing. –
September 1, 2010, 9:07 am“Standing” and “failure to state a claim” are different principles. Absence of standing means the party has no right to a trial, even if their claim rings of a well-recognized legal form of action. Failure to state a claim supposes the party has a right to trial, if a claim is made under a legal theory the court will recognize.
Mick says:
Cecil Kerksey said,
“Now by your logic children, born in the US, whose parents were imported slaves are not citizens. And their children will not be citizens either.
The quoted sentence is straight forward and not ambiguous. If you are born in the US and subject to its jurisdiction you are a US citizen regardless of the status of your parents. Simple.”
Ah more obfuscators. The 14th Amendment gave citizenship to slaves who were working and had residence in the US, and their children since they were not allowed to become citizens before Emancipation. Children of Non Resident aliens owe allegiance first to their parents, then to their parent’s country, not to the US.
September 1, 2010, 9:08 amStopFloggingDeadHorse says:
That “certificate” was long-ago debunked as a FRAUD! You can read about it on obamaconspiracy.com. If you’re not in a position to research a claim, then don’t make it. Anyway, Obama has released his birth certificate. The fact that you would like him to release a bunch of other stuff carries no weight. None. Zero.
Now Andrew, when are you going to release the information I demanded?
September 1, 2010, 9:08 amGuy says:
Call it what you like, but the court considered and rejected the underlying Constitutional argument.
September 1, 2010, 9:12 amAndrew says:
FloggingDeadHorse, what information did you demand? By the way, I’m well aware that what I say carries no weight.
Do you have a link to the material at obamaconspiracy.com that you would like me to read?
September 1, 2010, 9:12 amMick says:
Guy says:
“Mick, why should a treatise on international law be a better authority than Blackstone’s Commentaries on the Laws of England? Surely reading “indigenes” as “natural born citizens” is at least as much “mental gymnastics”, and as has been noted, “natural born citizen” is terminology taken from common law, so presumably one would look to common law authority.”
The founders spoke French fluently. They translated “Indigenes” or Indigenous, meaning from within, to the term of art Natural Born Citizen, which is how it appeared in English editions later. Come on give me a hard one.
September 1, 2010, 9:12 amRicardo says:
Get thee to a Logic 101 seminar. A => B does not imply NOT A => NOT B. Obama is a natural born citizen because he was born on incorporated U.S. territory and was subject to U.S. jurisdiction. Since the Panama Canal Zone was never incorporated, McCain’s situation is different. Still, if we rely on the authority of Blackstone, McCain is also a natural born citizen.
September 1, 2010, 9:14 amStopFloggingDeadHorse says:
No. Some countries don’t even grant citizenship to those born abroad. Here, for example, are the laws of India: “From 3 December 2004 onwards, persons born outside of India shall not be considered citizens of India unless their birth is registered at an Indian consulate within one year of the date of birth. In certain circumstances it is possible to register after 1 year with the permission of the Central Government. The application for registration of the birth of a minor child must be made to an Indian consulate and must be accompanied by an undertaking in writing from the parents of such minor child that he or she does not hold the passport of another country.”
So if 2 Indian students in New York have a child and decide or simply forget to register the child, that child has no claim on Indian citizenship. Under your completely invalid idea they would be a stateless person. The US couldn’t deport them, because no country would be obliged to accept them.
September 1, 2010, 9:14 amMick says:
Guy said,
“Call it what you like, but the court considered and rejected the underlying Constitutional argument.”
They didn’t reject it on the merits. Plain and simple.
September 1, 2010, 9:14 amGuy says:
But Blackstone, again, is crystal clear that the parents owe temporary allegiance, and their children possess a permanent allegiance upon birth.
September 1, 2010, 9:15 amGuy says:
And that’s the only permissible translation? It’s not even a literal translation, is that really more clear than the parallel between natural born citizen and natural born subject? Why are both prefaced by “natural born”? Is it just a coincidence?
September 1, 2010, 9:18 amStopFloggingDeadHorse says:
They did. Plain and simple. FRAUD!
PS-Since your silly arguments and clumsy phrasing are identical to those of the poster “yguy” on other sites, are you he? Assuming yes, are you trying to make it look like ther are several of you? FRAUD!
September 1, 2010, 9:20 amStopFloggingDeadHorse says:
http://www.obamaconspiracy.org/2010/04/john-mccains-fake-birth-certificate/
You must have a very liberal cell phone plan if you waste minutes on this nonsense. FRAUD!
September 1, 2010, 9:22 amGuy says:
I don’t know what you mean by “on the merits” if you don’t think the part under the heading “Natural Born Citizen” is that. It’s clearly an alternative holding resolving on the central Constitutional issue as a matter of law.
September 1, 2010, 9:23 amGuy says:
Why is “indegenes” even more properly translated as natural born citizen than as natural born subject anyway? The difference is just a stylistic one reflecting the fact that the people, and not a king, are sovereign in our polity.
September 1, 2010, 9:25 amAndrew says:
FloggingDeadHorse, my cell phone plan would best be characterized as “unlimited”. And that is the only reason I’m commenting here.
Thanks for the link to the blog entry at obamaconspiracy.com. I found the last (unrebutted) comment by John McQueeg (20. May, 2010 at 7:50 pm) to be interesting. Anyways, have a nice day. :-)
September 1, 2010, 9:34 amMick says:
It is a term of art that defies literal translation, but the original meaning of Natural Born Citizen is certainly closer to “indigenes” than Natural Born Subject. It means a citizen from within, as in from within it’s citizenry, whereas NBS could mean from without it’s citizenry (aliens). To think that the founders thought that Citizens were the same as subjects is laughable.
September 1, 2010, 9:46 amdearieme says:
“The question remains: why won’t Obama simply authorize the release the [purported] original 1961 birth certificate that names the doctor and hospital?
Yes, that is the question.
Please keep asking it.”
I demur because the answer, to those versed in the antics of humans, is obvious – there’s something embarrassing on it. But the existence and nature of the embarrassing entry on his birth certificate is secondary. The primary question is “Who knows the nature of the embarrassing entry on his birth certificate, and what do they do with that knowledge?” (For what it’s worth, I’d be astonished if it meant that he’s unqualified to be President.)
September 1, 2010, 9:47 amMick says:
Dearieme said,
“I demur because the answer, to those versed in the antics of humans, is obvious — there’s something embarrassing on it. But the existence and nature of the embarrassing entry on his birth certificate is secondary. The primary question is “Who knows the nature of the embarrassing entry on his birth certificate, and what do they do with that knowledge?” (For what it’s worth, I’d be astonished if it meant that he’s unqualified to be President.)”
The answer is that he wishes to keep the “conspiracy” going to shield the known fact that is already admitted, and makes him ineligible, he was a dual citizen at birth, thus not Natural Born Citizen.
September 1, 2010, 9:55 amMick says:
OK so? Mexico grants citizenship to children of it’s citizens born abroad. For those that don’t, send them back with the parents to their parent’s country where they can be naturalized. The thing about India is very relevent. Bobby Jindal was born in Louisiana of Non Citizen indian immigrants (legal residents I believe) way before 2004, so he is certainly NOT a NBC and will be challenged if he decides to run for POTUS.
September 1, 2010, 10:01 amVince Treacy says:
The birthers NEVER discuss the rationale and purpose of the Clause. It was drafted because of the concern expressed in Jay’s letter about the “admission of Foreigners” into our government. The documented historical concern was that the republic would fail, and that a prince, like one of the sons of George III, would have to be invited to be head of state. They wanted to prevent this, so they acted to prevent any foreign leader from being installed in the government after naturalization by Congress. The Electoral College was another safeguard against this possibility. They never expressed concern about infants born in the United States to aliens, and that subject was resolved by the 14th Amendment anyway.
Hamilton was there, and he proposed that the presidency be limited to persons then a citizen or “hereafter born a Citizen of the United States.” Born a citizen. How many times does it have to be repeated. He wanted anyone who would be “born” a citizen after the date of ratification to be eligible. He wanted to exclude naturalized foreign royalty, nobility and generals.
Jay wanted to exclude grown-up foreigners from being naturalized and acclaimed as leaders of the new nation. The phrase “natural born” citizen, based on the common law concept of “natural born” subject, achieved this. That is what happened. So just like the definition above, the Presidency was reserved to those who were “born” a citizen.
September 1, 2010, 10:03 amcecil kirksey says:
Please provide verbage in the 14A that states anything about working, slave, etc.
September 1, 2010, 10:04 amLoophole says:
“there’s something embarrassing on it. But the existence and nature of the embarrassing entry on his birth certificate is secondary.”
Given that the Hawaii original vital record (Certificate of Live Birth) is a form with places to input only limited information; what block of that form could contain “embarrassing” information?
Could you please indentify the block number and possible entry that you consider such to be possible? An example would be helpful.
http://the.honoluluadvertiser.com/dailypix/2009/Jul/28/M1139416728.GIF
September 1, 2010, 10:07 amStopFloggingDeadHorse says:
Comments added a month later to a thread often go “unrebutted”. The simple fact is the John McCain did NOT release his birth certificate, despite your statement that he did. The source of the fake b.c. shown was Fred Hollander, a litigant against McCain, not McCain. McCain supposedly showed his b.c. to a single reporter and no photos were allowed. By contrast, Obama posted his for all to see.
September 1, 2010, 10:07 amMick says:
Arkady says:
“Mick [responding to my account of the goofy argument that one can be native born but not natural born]: Another [that would be me, Arkady] that doesn’t get it or doesn’t want to. The Natural Born Citizen requirement of the POTUS and VP only requires that ones parents be citizens when born on the soil, not that they be Native Americans.
Native Americans? Is that a joke? If not, and that’s indicative of your level of reading comprehension, then not a thing you write is worth a nanosecond of attention.”
The Alinskyites are alive and well. None of the Obama eligibility obfuscators can prove me wrong, and must resort to ad hominem.
September 1, 2010, 10:07 amGuy says:
Can Obama authorize its release? If the state doesn’t issue it, then the state doesn’t issue it. It’s my understanding that Obama wouldn’t be entitled to recieve it even if he wanted it.
The only difference is a question of who is the sovereign, I don’t see why the standard for being a natural born subject should be any different than natural born citizen as far as situation of birth goes, it’s a question of allegiance and jurisdiction, and the analysis is the same in a republic as in a monarchy.
September 1, 2010, 10:07 amMick says:
Guy said,
“The only difference is a question of who is the sovereign, I don’t see why the standard for being a natural born subject should be any different than natural born citizen as far as situation of birth goes, it’s a question of allegiance and jurisdiction, and the analysis is the same in a republic as in a monarchy.”
Seriously. You don’t think it mattered to the framers that as Citizens the People are sovereign rather than the King? Citizens choose their allegiance, Subjects don’t get to choose. Everyone seems to forget that the Declaration of Independence made clear that the political philosophy of the US was based on the Laws of Nature, not the laws of a king.
September 1, 2010, 10:14 amStopFloggingDeadHorse says:
First of all, the possessive form is “its”, not “it’s”. Your knowledge of English as as bad as your knowledge of the law. Second, no country has to accept someone who is not a citizen. A Chinese citizen has to be deported to China; if you drop them at the Mexican or Canadian border, Mexico or Canada is quite within their rights to turn them back. So deporting a stateless person is not so simple, which is why countries pass laws to avoid such situations.
As for Jindal, I can’t speak for what someone might do. I would be prepared to bet a large sum of money that any challenge would fail. I would also bet that you are not man enough to take the bet.
September 1, 2010, 10:14 amDave M. says:
Again, I don’t care about the Obamas. There’s isn’t a current case.
Since you ask, however: domicile requires, at least, that the person
(1) removed from their domicile of origin,
(2) established a permanent residence within a new jurisdiction, and
(3) specifically intended to permanently remain in the new jurisdiction.
Much of the early republic case law didn’t address the issue of the lawfulness of establishing one’s new permanent residence, but that’s because it was never an issue at that time… Open borders, and all (the way it should be again, once we first reform the welfare state). However, with our current state of border security drama, there’s an argument to be made that the lawfulness of that new permanent residence should be an additional element to consider.
But, back to your question: Obama Sr was on a student visa. That’s prima facie evidence of intent to return to his domicile of origin, which in the event he did. As such, he never intended to permanently remain in the U.S., and thus was never domiciled here.
September 1, 2010, 10:14 amAndrew says:
FloggingDeadHorse, perhaps McCain has denied the authenticity of the birth certificate introduced in litigation against him. If so, it would be nice to have a link to McCain’s denial.
September 1, 2010, 10:16 amGuy says:
I think the difference mattered, but I don’t see why it would affect the question of who is “natural born” with the respective status.
The antecedent of “they” is illegal aliens, sorry for being unclear. I can understand, as a matter of policy, why you might want illegal presence of the parents to prevent the child from being a citizen (although I disagree with that policy judgment), but I don’t see how you can shoehorn that principle into the text of the 14th Amendment.
September 1, 2010, 10:26 amMick says:
The purpose of the 14th Amendment was clear. Slaves were not allowed to be citizens before Emancipation, thus their children were not either. Some states refused to grant them citizenship, so the 14th Amendment encoded the Civil Rights Act of 1866 into the USC and granted the slaves citizenship that they were denied. It granted them amnesty, including the children of slaves not considered to be citizens before Emancipation.
Parsing and probing by the Obama apologists with a fine tooth comb, ignoring the large FACTS that say that NBCs are born in the US of 2 US Citizen parents, and hillariously insisting that the framers thought BCL was a good way to determine citizenship.
September 1, 2010, 10:26 amVince Treacy says:
First of all, a correction. My link to Ankeny above should have said “court of appeals,” not “trial court.”
Second, this has all been debated over at Professor Turley’s blog:
http://jonathanturley.org/2009/10/13/attorney-orly-taitz-fined-20000-for-frivolous-birther-litigation/#comment-127231
As I wrote there, the Court of Appeals stated: “The sole issue is whether the trial court erred when it dismissed Plaintiffs’ complaint.” Slip op. at 3.
The argument by plaintiff was that the Governor had a duty to ascertain the eligibility of candidates. The Court noted that Plaintiffs cited no authority for such a duty, but that even if the Governor had such a duty, it could not rule that either Obama or McCain were not eligible for the Presidency.
Plaintiff argued first that a sitting Senator could not be an Elector. The court concluded that the argument that the Governor had violated a sitting Senator rule “fails to state a claim upon which relief can be granted.” Slip op. at 10.
The second argument by plaintiffs was that the Governor should have barred both Obama and McCain from the ballot because neither were natural born citizens. The Court wrote at page 10 that “Second, the Plaintiffs’ argue that both President Barack Obama and Senator John McCain are not ‘natural born citizens’ as required for qualification to be President under Article II, Section 1, Clause 4 of the U.S. Constitution…,” and that therefore the Governor should have been prohibited by the trial court from issuing a certificate of ascertainment.
The Court’s discussion took the next 10 pages. The Court stated: “Based upon the language of Article II, Section 1, Clause 4 and the guidance provided by Wong Kim Ark, we CONCLUDE [emphasis added] that persons born within the United States are natural born Citizens’ for Article II, Section 1, regardless of the citizenship of their parents.” Slip op. at 17.
The courts traditionally preface their holdings with language that states that they have “concluded” or “determine” a matter or issue.
If there were any doubt at all that this was one of the holdings of the case, it is
resolved by footnote 15: “We reiterate that we do not address the question of natural born citizen status for persons who became United States citizens at birth by virtue of being born of United States citizen parents, despite the fact that they were born abroad. That question was not properly present to this court. Without addressing the question, however, we note that nothing in our opinion should be understood to hold that being born within the fifty United States is the [ital] only [ital] way one can receive natural born status.”
From the footnote, then, we know that the natural born citizen status of Obama WAS properly before the Court. We know that the Court held that Obama was a natural born citizen regardless of parents. We know that the court did not hold that McCain was one because of birth overseas to citizen partners. We know that Court did not rule out persons who were not born within the 50 States (e.g., DC or the territories) from having natural born status.
These amateur birther legalists pounced on the Ankeny decision from the very beginning on this holding-dicta hook. But the Court’s ruling on Obama’s natural born citizen status was essential to its holding. If it had ruled that Obama was not natural born because his father was an alien, then the Plaintiffs would have stated a claim upon which relief could be granted, and the Court would have had to rule on the Governor’s duties.
But the Court ruled as follows:
[quote] Plaintiffs do not mention the above United States Supreme Court authority in their complaint or brief; they primarily rely instead on an eighteenth century treatise and quotations of Members of Congress made during the nineteenth century. To the extent that these authorities conflict with the United States Supreme Court’s interpretation of what it means to be a natural born citizen, we believe that the Plaintiffs’ arguments fall under the category of “conclusory, non-factual assertions or legal conclusions” that we need not accept as true when reviewing the grant of a motion to dismiss for failure to state a claim. Irish, 864 N.E.2d at 1120. Thus, we cannot say that the trial court erred when it dismissed the Plaintiffs’ case. [unquote]
As I read the case, the Court never did reach the issue of the Governor’s duty to ascertain eligibility because it found that none of Ankeny’s claims had any merit. The Court could not have held that the Governor had no duty, because the question never reached it on the basis of a claim with merit.
I think I have summarized the case fairly and accurately. But read the case for yourselves. It is a good discussion of the two-parent birther theory—and it is the Court’s holding.
http://nativeborncitizen.wordpress.com/2009/11/12/ankeny-v-gov-of-indiana-natural-born-defined-born-on-us-soil-regardless-of-citizenship-parents/
At any rate, if there had been any mistakes, it was up to the Indiana Supreme Court to correct them. Looks like “Review denied.”
“INDIANAPOLIS — The Indiana Supreme Court has refused to hear a case claiming Barack Obama is ineligible to be president because he is not a natural born citizen.
“The court announced Tuesday that justices unanimously voted against hearing the appeal from two Indiana residents.”
http://www.theindychannel.com/news/23068154/detail.html
September 1, 2010, 10:29 amMick says:
Then those cases would be handled one on one.
September 1, 2010, 10:32 amMore ignoring of Large FACTS that say Obama is not a Natural Born Citizen and continued Alinskyan ad hominem. I would say that you may be one of the Usurper’s internet gatekeepers, but you can never be sure who anyone is on the internet can you? You still have failed to prove me wrong despite how dumb I am.
Arkady says:
And we’re still left with your “Native American” misunderstanding, misapprehension, mischaracterization, misreading, misjustabouteverything. You are not a serious person.
September 1, 2010, 10:38 amRicardo says:
Wrong on two counts. First, according to the Dred Scott case, non-white people in general were prohibited from acquiring citizenship at birth. The 14th Amendment could have singled out slaves but did not — the simple text of the amendment proves it went further than only granting citizenship to former slaves and their children.
Second, according to your rather idiosyncratic legal theories, black people were still ineligible for the Presidency even after the passage of the 14th Amendment since their parents would not have been citizens at the time of birth. That’s an indefensible reading.
September 1, 2010, 10:42 amVince Treacy says:
Mick: “Ah more obfuscators. The 14th Amendment gave citizenship to slaves who were working and had residence in the US, and their children since they were not allowed to become citizens before Emancipation. Children of Non Resident [sic] aliens owe allegiance first to their parents, then to their parent’s country, not to the US.”
Mick, the discussion here is about children of RESIDENT aliens. The children of non-resident aliens have nothing to do with it. It is obvious that a child born to a non-resident alien, in any country other than the U.S., is not a citizen of the U.S. by birth.
Also, Dred Scott held that not only slaves, but freed slaves, were ineligible for citizenship. Just trying to get the facts straight.
And the framers of the Fourteenth Amendment debated its impact on the children of aliens. They were very clear that the phrase “subject to the jurisdiction” was intended to carry forth the traditional principle that the children of diplomats born in the U.S. did not become U.S. citizens, nor did the children of hostile occupying military forces.
September 1, 2010, 10:43 amGuy says:
You don’t see a problem with a nation allowing a person who has spent their entire lives in its jurisdiction to remain stateless? One of the points of the 14th Amendment was to ensure that states would be responsible for giving people within their jurisdictions the protection of their laws.
Is Bobby Jindal a citizen at all in your view? If he’s not a citizen by virtue of birth under the 14th amendment (and I understand your position to be that that’s equivalent to being an NBC) then he would have had to be naturalized under a statute.
September 1, 2010, 10:46 amcboldt says:
– But the Court’s ruling on Obama’s natural born citizen status was essential to its holding. –
September 1, 2010, 10:46 amIf so, then a similar conclusion would be essential as to the Court’s conclusion to dismiss the claim against McCain’s candidacy.
But that’s not so. In your synopsis of the case, you say “The Court noted that Plaintiffs cited no authority for [the Governor had a duty to ascertain the eligibility]” That’s enough, right there and without more, to conclude the plaintiff has failed to state a claim against the governor. The failure to state a claim is equally valid as to McCain, Obama, or any other candidate whose name appears on the state ballots – regardless of whether or not the candidate is in fact qualified for the office.
I think the Court’s conclusion is useful, just the same, as it expressly sets forth that a child born in the US (of any parent except diplomats, including parents illegally in the US) has the NBC qualification for the presidency. I think that is incorrect as a matter of ConLaw, but that is exactly what the Court’s interpretation of WKA requires, and admits.
Chris Travers says:
But it did so by enshrining Jus Soli in our tradition of Constitutional law. There is really no way of getting around that short of making a treaty with other countries on the subject of illegal immigration. And I think the treaty would have to remove some substantial jurisdiction components to make it work.
Something like: “All crimes committed by unlawful immigrants or their children shall be under the jurisdiction of their home home nation, and the home nation agrees to faithfully prosecute them.”
That would do it.
September 1, 2010, 10:52 amcecil kirksey says:
Sorry. Your reading comprehension is apparently very weak. Exactly where in the 14A does it refer at all to children of former slaves? Or slaves at all? Your are correct about the purpose of a portion of the 14A. But the wording is broad enough to include anyone born in the US is a citizen, period, with the stated exception.
The requirement to trace the citizenship of ones parents is ridicuous. How would you do that? Birth certificates are insued at the discretion of states. Births can be recorded in bibles, etc or not. The place of your birth is the only thing that counts. Simple. Have a nice day.
September 1, 2010, 10:56 amGuy says:
Wait, is your position that the parents must be citizens of the United States, or that any allegiance somehow destroys jurisdiction? If the former, I don’t see how the 14th Amendment could achieve its intended result. If an NBC is a person who is a citizen by birth under the 14th Amendment, but you interpret that to turn on the citizenship of the parents, then you have an entirely circular definition that does nothing to clarify the question of who is and is not a citizen.
Unless Indiana courts don’t follow the rule that alternative holdings are binding precedent (doubtful), the discussion of who is a natural born citizen isn’t dicta.
September 1, 2010, 10:57 amChris Travers says:
Yet we had President Arthur. Having a child born of a non-citizen immigrant and a citizen become President is not unprecedented in this great nation. Indeed President Arthur was a dual citizen at the time he served as President.
Oh, and he was a Republican.
September 1, 2010, 11:00 amAndrew says:
Chris (regarding your statement “That would do it”) that’s an interesting point, though tangential to this thread. Congress could probably treat illegal aliens like diplomats unilaterally rather than by treaty. Also, note that the 14th Amendment refers only to jurisdiction of the United States, and not jurisdiction of the states. So even if Congress were to decide to treat illegal aliens like diplomats, states would not have to do so, in order for illegal aliens to fall within the jurisdiction exception of the Citizenship Clause.
September 1, 2010, 11:04 amMick says:
Vince Treacy said,
“Mick, the discussion here is about children of RESIDENT aliens. The children of non-resident aliens have nothing to do with it. It is obvious that a child born to a non-resident alien, in any country other than the U.S., is not a citizen of the U.S. by birth.”
“Citizen by birth” can include the child of 1 citizen parent born abroad, and those are certainly not Natural Born Citizens.
September 1, 2010, 11:05 amHow does Laurence Tribe’s definition of “one born within a nation’s territory and allegiance” jibe w/ the thought that Natural Born Citizens are citizens at birth. If simple birth in the territory was enough he wouldn’t say “and ALLEGIANCE”.
Chris Travers says:
BTW, it’s worth looking at the Wikipedia page on Chester Allen Arthur. This is interesting for a couple of reasons (and also helps to dispel concerns about calling birthers ‘racist’).
Presidents Arthur and Obama were both mothers who were citizens and fathers who were not at time of birth (Arthur’s father naturalized a few years later). In both cases, there were conspiracy theories about where they were born and controversies over whether they were natural-born citizens. In both cases, those controversies were fairly marginal.
September 1, 2010, 11:07 amdearieme says:
“To think that the founders thought that Citizens were the same as subjects is laughable.” Remember that the founders hadn’t been subjected to indoctrination in the foundation myths of the USA.
September 1, 2010, 11:08 amVince Treacy says:
I want to write in defense of Professor Turley. This thread started with Mick’s accusation “You know, and are obfuscating the fact that Obama is not an eligible Natural Born Citizen, NO Matter if born in the White House, in JFK’s lap. Obama Sr. was not a citizen when Obama 2 was born. You and Obama both know that makes him ineligible. Destroying the Constitution for the benefit of your Leftist agenda. Fraud!!!”
Professor Turley is owed an apology for this intemperate charge of “Fraud!!!” He opened the discussion of the two-citizen parent issue back in 2008. He even revised his posting to clarify Leo Donofrio’s position. Leo was profuse in his praise of Turley. (Leo has since pulled nearly all his postings from his sites).
The Professor’s blog now has literally thousands of postings on threads searchable by terms like Obama birth, natural born citizen, retired general, Donofrio, and Taitz. Many more are found on unrelated threads hijacked by birthers. All the birther posters have been allowed full opportunity to post their views, and their questions have been addressed.
So where is the fraud? The legal definition requires (roughly) a conscious misrepresentation of a present fact, upon which a person reasonably relies, and which turns out to be false, to his detriment. All that Mick is complaining about is a disagreement over legal interpretation.
Mick is the only one who has unrepentantly introduced a fraudulent factual claim, to wit, that McCain was born in Colon.
Turley’s earliest thread on the issue his here:
http://jonathanturley.org/2008/12/04/eligibility-questions-can-clinton-serve-obama-and-can-obama-serve-the-country/
September 1, 2010, 11:11 amcboldt says:
– Unless Indiana courts don’t follow the rule that alternative holdings are binding precedent (doubtful), the discussion of who is a natural born citizen isn’t dicta. –
September 1, 2010, 11:13 amIs the finding that Obama is a NBC essential to the Court’s upholding of the dismissal? My remark was that if one answers this in the affirmative, then one must admit a similar finding would be essential to uphold the dismissal as to the governor’s handling of McCain’s candidacy.
As to labeling the finding “dicta” or “holding,” I think it (the labeling by us) doesn’t matter. Courts will pick and choose whatever language suits the outcome they prefer, without regard to it being “dicta” or “holding” as a matter of strict and correct logic. One Court may take the portion of the Indiana case we are discussing, and call it irrelevant dicta, and another Court might call it essential to the outcome.
Mick says:
Chester Arthur went great lengths to hide his Non Natural Born Citizen status, including lying about his family history, his date of birth, and burning all family historical records before he died. Just like today, but as the VP candidate to Garfield, there was a big uproar over the fact that he may have been born in Canada (he was born in Vt.), aided by his own obfuscations (just like today). Hiding in plain site was the fact that his father never naturalized until Chester was 13, but that was not known to the public then, and has only recently been discovered. CA was the only other Non Natural Born Citizen not grandfathered in by A2S1C5. However fraud is not precedent. Obama is now the 2nd Usurper, and he is following Chester Arthur’s game plan of hiding his family history. In Due Time…
September 1, 2010, 11:14 amGuy says:
I don’t know about “certainly”, but I’m inclined to agree that a person who is a citizen from birth by virtue of statute is a naturalized, and not natural born, citizen.
I don’t think anyone’s disagreeing that the person must be born within the United States’ territory and allegiance, so long as allegiance and jurisdiction are understood to be equivalent terms, but the point is that your understanding of allegiance is at odds with precedent and history. Why is allegiance (forget about citizenship and subjecthood, let’s just talk about allegiance) not defined by the common law, even though the common law is the foundation of our legal heritage?
September 1, 2010, 11:15 amChris Travers says:
Simple:
You have to start with the idea of jus soli, which is the idea that nearly all people born in a nation owe allegiance to that nation because this nation protects them. Exceptions include children born to accredited officers of foreign governments, friendly or neutral armed forces stationed on US soil by international treaty, other autonomous sub-nations negotiated with via treaty (Native Americans), and the like.
The 14th Amendment doesn’t prevent Congress from recognizing others as natural-born citizens through statute, such as those born in Puerto Rico or Guam, nor does it prevent Congress from extending those rights to Native Americans, children born to US citizens residing abroad, and the like.
Otherwise you run into a bit of circular logic: one owes allegiance if one is a citizen, so the definition ends up being fully statutory, which wouldn’t make sense. Saying that one owes allegiance to the US and nobody else means we’ve already had at least one President (not Obama) who didn’t meet that criteria.
September 1, 2010, 11:17 amChris Travers says:
Does that include Native Americans? Are they ineligible for this office? Was McCain ineligible for office too?
Also was the Naturalization Act of 1790 unconstitutional in this regard?
September 1, 2010, 11:20 amcboldt says:
– Yet we had President Arthur. –
September 1, 2010, 11:21 amMy unfounded impression is that the citizenship of Arthur’s father was not a matter of public knowledge and/or contention; but the location of candidate VP Arthur’s birth was at least a contemporary sideline issue.
That is, my impression is that the public was unaware or ignorant of Arthur’s father not being an American citizen – the public assumption being that his parents were US citizens.
Be that as it may, the position of the anti-birthers seems to be that the citizenship of Obama’s parent is completely irrelevant; and the only factor that matters is geography at the moment of birth.
Chris Travers says:
I haven’t found much about him lying about his family history other than his date of birth, which wasn’t that uncommon. My grandmother lied about her date of birth because she wanted to seem younger (and she managed to get a drivers license which subtracted ten years off her age). I suspect this was probably remarkably common in the 19th and early 20th centuries.
He had most of his papers burned, and these went well beyond family historical records.
I still don’t see where the fraud is. People knew his father didn’t naturalize until well after his birth.
September 1, 2010, 11:32 amjukeboxgrad says:
No. Do you? And why did you ignore the other question I asked you (about your claim “all other released BC’s for August 1961 use — 61 — instead of — 1961 -”)? What is your basis for that claim?
And you also haven’t explained why you said this: “also interesting are those born in August 1961 were able to obtain their long form BC.” Decades ago, everyone used to be “able to obtain their long form BC.” There’s nothing special about “August 1961″ in this regard. Why are you suggesting there is?
The one who misspoke is you. You cited Okubo making this statement: “if someone from Obama’s campaign gave us permission in person and presented some kind of verification that he or she was Obama’s designee, we could release the vital record.” You are claiming that “vital record” is a reference to “the original document.” Trouble is, it’s not. That statement by Okubo goes back to 2008, and the context indicates that she simply means ‘legal birth certificate.’
Okubo has also said this:
What’s been true for decades is that Hawaii only issues the short form. Period. “The Hawaii Department of Health’s birth record request form [pdf] does not give the option to request a photocopy of your long-form birth certificate” (link).
It’s misleading to say “it sometimes has done so.” It did so a long time ago, and then stopped doing so.
Indeed. Okubo was simply responding to the fact that people were asking her for a copy of Obama’s birth certificate. She was telling them she could give them nothing because they weren’t Obama. Duh.
Who cares? So what? That means nothing. Birthers were claiming that document was a forgery, and therefore they were trying to get a document directly from Okubo.
It’s hard to imagine the legal basis for POTUS to tell a state that their normal document policies that have been in place for decades need to be set aside, just because he says so. I bet you really like the concept of federalism, except when you don’t. My hunch is that you made a similar exception for Teri Schiavo.
When POTUS refrains from telling a state how to run itself, and refrains from requesting that they create a special policy tailored just for him, and not applicable to anyone else, that is not “suppression of the document by the White Housr.” If Obama did such a thing, I think he would be accused of abusing his power, and I think the accusation would have some merit.
If Hawaii issues the old form for Obama, how are they supposed to respond to everyone else who then suddenly decides that they also want to see their old form? Tell them they have to get elected POTUS first?
The suit got tossed before it got to any stage where McCain would feel a need to issue a denial.
Yes.
September 1, 2010, 11:32 amChris Travers says:
Which is my view based on a simple reading of the 14th Amendment and relevant Congressional record.
September 1, 2010, 11:34 amMick says:
Con Law experts like Turley and Tribe know what a Natural Born Citizen is. There is PLENTY of historical data that shows the original meaning and rationale. There is no US Statute (including the 14A and Title 8), or SCOTUS dicta that changes the meaning of Natural Born Citizen, as Born in the US of US Citizen parents from Vattel’s Law of Nations. Tribe has defined it in a veiled way “those born within a nation’s territory and allegiance.” If Territory is all that’s neccessary, why does he say ALLEGIANCE?
September 1, 2010, 11:35 amAs for McCain, he is no hero, as he has allowed the Usurpation. There is NO record of his birth @ the on base hospital (even though his father and grandfather were commanders), and we are told to believe a lone reporter that has seen his BC. We are told that NA 1790 makes him eligible, when that would be true if he were born between 1790 and 1795. Turley doesn’t know this? As for Obama’s BC, Since when does a lawyer accept a pic on a website as proof of anything? IT’s HEARSAY.
They are allowing the Usurpation of the presidency by saying nothing, and aiding in the destruction of said document, of which Obama cares little. It is an affront to me and should be to you. I stand by my words, now wipe that brown stuff off your lips.
Vince Treacy says:
Mick now says “’Citizen by birth’ can include the child of 1 citizen parent born abroad, and those are certainly not Natural Born Citizens.”
So?
Sorry, but what Mick wrote was “alienS,” [emphasis supplied] plural, more than one.
He wrote “Children of Non Resident aliens owe allegiance first to their parents, then to their parent’s country, not to the US.” Look it up.
When caught in a contradiction, forget what was written.
To repeat, children born to non-resident aliens have no claim to U.S. citizenship.
Children born to one citizen parent and one alien parent overseas may or not be citizens by birth, depending on whether the citizen parent meets certain statutory residency requirement.
September 1, 2010, 11:36 amStopFloggingDeadHorse says:
That is what the one court that has pronounced on the matter (the Ankeny court) said. The law is what courts, not blog commenters, say it is. Unless and until some court says differently (there are no active cases so this can’t possibly happen until 2012) that is the law.
To Mick/yguy the proof in legal matters is rendered by courts. They have proven you wrong. Therefore I don’t have to do so, I merely have to concur in their opinion.
September 1, 2010, 11:36 amGuy says:
Well, the court says in footnote 10 that it doesn’t address the argument with respect to McCain because the plaintiffs didn’t develop a “cogent legal argument”, this footnote would be essential if the other grounds weren’t relied upon. Presumably the court didn’t want to address it directly because it’s a closer question and the court would have preferred better briefing. And although the line between dicta and holding is slightly manipulable, I think it’s fairly clear in this case.
September 1, 2010, 11:37 amGuy says:
Assuming that what I said is true (I don’t have an official position, but like I said, my inclination is that that’s the correct view), then the questions would be whether Native Americans are still not subject to our complete jurisdiction, whether the Canal Zone is a part of the United States for purposes of the 14th Amendment, and whether Congress possessed the power to define the law of citizenship prior to the 14th Amendment’s ratification, respectively.
September 1, 2010, 11:44 amcboldt says:
– Exceptions include children born to accredited officers of foreign governments, friendly or neutral armed forces stationed on US soil by international treaty, other autonomous sub-nations negotiated with via treaty (Native Americans), and the like. –
September 1, 2010, 11:46 amThe legal fiction as to diplomats is that their domicile remains in their home country, regardless of where they actually reside.
My point is that legal domicile is an important factor. FWIW, I find WKA’s diminution of “subject to the jurisdiction” to the point of a triviality to be wrong. If the authors of the 14th amendment had omitted the phrase, children of diplomats would still be found, as a matter of law, to follow the citizenship of their parents; which is based on home-country domicile rather than on what could be an accident of location in a foreign country at the moment of birth.
I hadn’t heard about birthright citizenship being denied to friendly armed forces stationed in the US; and thought denial of citizenship was to enemy/invading forces.
cboldt says:
– And although the line between dicta and holding is slightly manipulable, I think it’s fairly clear in this case. –
September 1, 2010, 11:57 amI find the classification of the 10 page discussion of WKA to be clear too, but we are on opposing sides in that regard.
If the finding that Obama is an NBC is essential to the court’s upholding of the decision below, then a similar finding is essential as to McCain. The Court did not make a similar finding as to McCain, yet upheld, in entirety, the decision below. Therefore the finding as to Obama is not essential. That makes it dicta. Being dicta doesn’t make it correct or incorrect. The “dicta/holding” line aims to probe the need for a finding, in order to reach the legal conclusion in the case at hand.
If a finding of NBC was essential to uphold the decision below, the appellate Court would have had to either reach a finding on the record, or remand it for a finding.
Andrew says:
JukeBoxGrad, it’s not apparent to me from your comments that I misspoke at all. I never said that President Obama should tell the State of Hawaii what to do. Rather, Obama could simply request that the state provide him with a copy of the 1961 document if he does not already have it. I’ve seen no indication that such a request has been made, much less rejected by the state. The main purpose of the law is to guard against unauthorized access by third parties.
Hawaii’s confidentiality laws have been on the books since 1949, and yet lots of people have obtained copies of the original documents.
Regarding the specific quote from Ms. Okubo, U did not take it out of context. But just to be clear, here’s a link to the article, followed by an extended excerpt:
http://the.honoluluadvertiser.com/article/2008/Oct/18/ln/hawaii810180353.html
The lawsuit filed in Honolulu seeks to have the court order the state to turn over a copy of Obama’s birth certificate, and related files and records.
The lawsuit names Gov. Linda Lingle and Dr. Chiyome Fukino, health department director.
Attorney General Mark Bennett said he had not seen the lawsuit and could not comment on it.
“But pursuant to the Hawai’i Revised Statutes, vital records are confidential and it would violate the law to release them to anyone except the individuals listed in the section,” Bennett said.
The suit claims that because Obama is a presidential candidate, releasing his birth certificate is a “topic of intense national speculation.”
Obama in March posted a copy of his birth certificate on his Web site, http://www.fightthesmears.com/articles/5/birthcertificate, to prove that he was born Aug. 4, 1961, in Honolulu…..
The law that restricts the release of vital records dates to 1949, Okubo said. Many other states have similar laws on vital records, she said.
Hawai’i law states that only the person whom the record is concerned with, or a spouse, parents, descendant or someone with a common ancestor, can obtain a copy of a vital record. In addition, someone acting on behalf of the person — a personal representative or adoptive parents — can obtain a vital record. A copy could also be obtained via court order.
However, Okubo said, “If someone from Obama’s campaign gave us permission in person and presented some kind of verification that he or she was Obama’s designee, we could release the vital record.”
September 1, 2010, 12:03 pmAndrew says:
Meant to say, “I did not take it out of context.”
September 1, 2010, 12:10 pmGuy says:
It’s not essential in the sense that it could be excised from the opinion, but it is an alternative holding, it seems to me. Like I said, footnote 10 would presumably be an essential part of this alternative holding. Then again, why the whole case wasn’t simply dismissed just on the grounds of being moot is beyond me, maybe the court foolishly thought addressing the merits would satisfy the plaintiffs.
September 1, 2010, 12:12 pmVince Treacy says:
Mick, 11:35 AM: “Con Law experts like Turley and Tribe know what a Natural Born Citizen is.”
I doubt that Mick is able to read the minds of Turley and Tribe.
Mick is more adept at name calling and abuse than legal reasoning.
He can stand by his words if he wants to. He does not even post them with his real name, so why should anyone care?
Most posters here have passed judgment adversely on his “reasoning.”
Briefly, the 14th Amendment did in fact change the meaning of the term “citizen” as it appears in “natural born citizen” and everywhere else in the Constitution.
Before the Amendment, the term excluded all persons of African descent, free or held in service.
After the Amendment, all persons born or naturalized in the U.S., and subject to its jurisdiction, were citizens. Persons who are naturalized as citizens may not serve as President or Vice President. Persons who are born as citizens may serve as President or Vice President. There are only two kinds of citizens, born and naturalized, and that is the ONLY difference between them.
Vattel was not at the Constitutional Convention, did not sign it, and did not vote to ratify it. No one voted on Vattel’s definition. He wrote about international law, long before the Constitution was drafted. He was not relied upon for domestic law of citizenship. His “definition” may once have applied in Switzerland or other some countries, but not in England, where Blackstone’s writings prevailed, nor in the United States.
September 1, 2010, 12:13 pmVince Treacy says:
Mick resembles the fictional guy in the Onion who passionately defend what he thinks is in the Constitution. There are no words in the Constitution that require birth to two citizen parents to be a natural born citizen, or that bar dual citizenship by natural born citizens. He passionately thinks that there are, but cannot find any language to prove it, only an ancient treatise in another language. But he will fight on for his imaginary constitution against all comers, denouncing “usurpation,” personally affronted, until domestic bovine animals return to their residences.
As Kurt Vonnegut, who is up in Heaven, used to say, “so it goes.”
Area Man Passionate Defender Of What He Imagines Constitution To Be
September 1, 2010, 12:19 pmNovember 14, 2009 |
“ESCONDIDO, CA—Spurred by an administration he believes to be guilty of numerous transgressions, self-described American patriot Kyle Mortensen, 47, is a vehement defender of ideas he seems to think are enshrined in the U.S. Constitution and principles that brave men have fought and died for solely in his head.
….
“Mortensen told reporters that he’ll fight until the bitter end for what he roughly supposes the Constitution to be. He acknowledged, however, that it might already be too late to win the battle.”
http://www.theonion.com/articles/area-man-passionate-defender-of-what-he-imagines-c,2849/
Chris Travers says:
Congress clearly had the power to provide uniform naturalization law. However, in 1790, they used the phrase “natural born citizens” to refer to children of US citizens born abroad. The question is was it within Congress’s power to specify that such persons were natural born citizens?
September 1, 2010, 12:23 pmVince Treacy says:
You know, the conventional way to express disagreement with the legal conclusions of legal scholars like Turley and Tribe is to compose a scholarly legal article for a law review. There are about 180-odd law schools in the U.S., and most have one or more law reviews, edited by top law students, always on the hunt for a new and pathbreaking article. In hundreds of law reviews, the student editors review every word and check every citation for accuracy and authority.
Has anyone here seen ANY law review article, note or comment that espouses this “two parent” or “dual citizenship” notion? I know that there is an article questioning McCain’s status, but I have not come across any challenge to Obama’s natural born citizen status.
Is there anything out there?
The absence of ANY scholarly discussion is a good sign that this is a crank theory, not a viable legal position.
September 1, 2010, 12:30 pmChris Travers says:
I went hunting for what I had previously read and couldn’t find it. So I could be misremembering, using untrustworthy sources, or the like. But the argument went something like that they were here on an agreement which basically put them outside the civilian courts’ jurisdiction and therefore were not entitled to have their children be US citizens. I am not aware of any court case which suggests this however.
I think this argument would make sense though. It seems to me, friendly soldier stationed in the US on official business (joint training exercises, etc) is as much a representative of the foreign government as a diplomat is. Obviously this doesn’t apply to friendly or hostile armed forces not stationed here but visiting anyway.
September 1, 2010, 12:31 pmAndrew says:
Vince, as I mentioned waaaaay up this thread, there are reputable people who think Wong Kim Ark was wrongly decided and should be overturned. I disagree with them, though.
September 1, 2010, 12:35 pmChris Travers says:
Vince: Is that your view? Do you really mean that a child born in the US to non-resident aliens has no claim to US citizenship?
September 1, 2010, 12:37 pmjukeboxgrad says:
Let’s review. You said this:
You are claiming that Okubo’s statement is an indication that she is willing to “provide copies of the original document,” if Obama asks for it. You are claiming that when Okubo says “the vital record,” that is synonymous with “the original document.” Trouble is, she didn’t say anything about “the original document.” By “the vital record,” she simply means ‘legal birth certificate.’ Since you are claiming otherwise, you need to tell us how you know.
Just to be clear, in my comment here I already provided a link to that article. You need to show us the part where Okubo offers to release “the original document.”
Hawaii policy for decades has been to issue the document that has already been issued. You have failed to explain why Obama should ask them to do something special for him, or why they should comply with such a request, or how they would handle the other similar requests that would inevitably ensue.
As far as I can tell, your only evidence relevant to this claim is regarding the Nordykes. When did they obtain those documents? Do you know?
September 1, 2010, 12:49 pmAndrew says:
Jukeboxgrad, the Nordyle certificate is from 1961, just like the Obama document. Other original Hawaii birth certificates are avaiable online that were obtained during the period 1949 to date (1949 being when Hawaii instituted their privacy policy).
For the third, and last time in this thread, I want to again point out that the Okubo statement was in response to a request for “a copy of Obama’s birth certificate, and related files and records.”
There is no way that the 1961 document is not included within that quoted phrase.
September 1, 2010, 1:04 pmGuy says:
I don’t think so, and it certainly isn’t now, it’s possible that the meaning of “natural born citizen” means anyone who is a citizen since birth, and it’s also possible that it means anyone who is a citizen by virtue of birth without any statute. Either way, whether someone is a natural born citizen under a statute granting citizenship to certain people at birth is a function of the answer to that question, and not of whether Congress says that they are natural born in the text of the statute.
September 1, 2010, 1:09 pmjellis58 says:
Area Man strikes again!!!!!
September 1, 2010, 1:12 pmChris Travers says:
So who gets to answer this question?
September 1, 2010, 1:37 pmVince Treacy says:
Chris Travers says; “Vince Treacy: To repeat, children born to non-resident aliens have no claim to U.S. citizenship.
“Vince: Is that your view? Do you really mean that a child born in the US to non-resident aliens has no claim to US citizenship?”
Chris, that post was based on the assumption that the non-resident aliens did not reside in the US. But I see that the State Department has a definition that includes aliens who are present in the US within that term.
“Definition of Non-resident Alien
“If a person does not meet either the Green Card or Substantial Presence Test, then that person is classified as a non-resident alien.
“A new arrival on a J-1 or F-1 visa is generally a non-resident alien.
“Non-resident aliens are taxed only on their income from sources within the U.S. and on certain income connected with the conduct of a trade or business in the U.S.”
A child born to two aliens who are within that definition, if born in the US, is a birthright citizen of the US.
A child who is born outside the US, to two aliens who are not in the US, has no claim to US citizenship.
September 1, 2010, 1:52 pmjukeboxgrad says:
I know “the Nordyle certificate is from 1961.” Duh. I didn’t ask you when it’s “from.” I asked you when they obtained it. If they obtained it in 1961, that tells us nothing about a policy that has been in place “since the 1980s.” The policy that has been in place “since the 1980s” is to issue only the document that has already been issued.
You said this:
The key words are “it sometimes has done so.” Please show evidence that “it sometimes has done so” in recent decades. The Nordykes papers do not address this issue, unless you can show evidence that those papers were obtained by the Nordykes in recent decades.
Please explain what you mean by “to date,” and show evidence that it means ‘in recent decades.’
It doesn’t matter what they were asking for. What matters is what she offered to provide. She never said ‘everything you asked for is available.’ She never said ‘the original form is available.’ She said what’s available is the “vital record,” and that it’s given only to the person named. Please show your evidence that by “vital record” she meant something other than ‘legal birth certificate.’
I guess that’s your way of letting us know that you intend to keep evading the various questions I’ve been asking you.
September 1, 2010, 1:53 pmA. Criminal says:
This thread was funny because, since nearly everything the federal gov’t does now is unconstitutional, arguing about what’s constitutional is “how many angels can dance…”; there’s no angels and the Constitution’s been racheted down to voting procedures and a favored few of the amendments.
September 1, 2010, 2:08 pmRich Rostrom says:
“Mick” is not a “Birther”. He’s a random crank who emits his nonsense all over the blogosphere (I’ve seen his postings many times.) His claim has nothing to do with any disputed fact, only with an interpretation of law.
Vince: “Briefly, the 14th Amendment did in fact change the meaning of the term “citizen” as it appears in “natural born citizen” and everywhere else in the Constitution.
Before the Amendment, the term excluded all persons of African descent, free or held in service.”
The only “authoritative” holding that “persons of African descent” could not be citizens was Justice Taney’s in Dred Scott, which was widely recognized as fraudulent. That some “colored” persons had been recognized as citizens was a matter of historical record. The 14th Amendment extended the definition of the term to include all “colored persons”.
September 1, 2010, 2:16 pmChris Travers says:
IIRC Taney went so far as to say that “persons of African descent” could not be granted citizenship by anybody (i.e. not be naturalized by law of Congress, not be granted citizenship by a state) on an argument based on “original intent.”
September 1, 2010, 2:21 pmAndrew says:
Jukeboxgrad, I haven’t sought to avoid anything you’ve said.
I do not doubt that when someone requests a birth certificate in Hawaii nowadays, the one you get looks exactly like the one that Obama has released. On the other hand, I know if no Hawaii law (or even a mere policy) that bars everyone from following up with a request for a copy of the original certificate, perhaps with a showing of unusual circumstances. Janice Okubo has explicitly invited such a request. My understanding is that President Obama has not made such a request, and instead has opposed release of the 1961 certificate in every legal forum where the question has arisen.
So I don’t find the argument persuasive that Oresident Obama would make the document available if only he could. Your mileage may vary.
I’m not sure when the last time was when Hawaii issued a copy of an original birth certificate showing the doctor and hospital. It’s a mildly interesting question, though, and I wish you good luck in finding out the answer.
September 1, 2010, 2:24 pmballantine says:
Yes, the sole purpose of the citizneship clause in the 14th Amendment, as well as the Civil Rights Act before it, was to clarify the amibuguity created by Dred Scott. Some congressman thought it necessary to overrule Dred Scott, some thought that the it was not, arguing the language on citizenship in Taney’s opinion was dicta. What is clear is no one thought they were changing the law of citizenship other than to clarify that it applied to blacks. The debates show that most members of Congress understood that birthright citizenship was the existing law.
September 1, 2010, 2:33 pmAndrew says:
Please excuse the typo. I meant “President.”
September 1, 2010, 2:33 pmballantine says:
There are, but they are mainly political partisans. They mainly cherry pick a few misleading quotes from the debates of the 39th Congress and ignore the 95% of statements that support the codification of birthright citizenship. They also try to ignore that pretty much everyone in such Congress that spoke said they were merely codifying existing law and antebelum legal authority, almost without exception, adopted the english common law jus soli rule. In other words, their arguments are not serious.
September 1, 2010, 2:35 pmGuy says:
If the question arises in a justiciable case or controversy? The Supreme Court, that’s their job. It may be a political question, though, Congress is in charge of counting the votes.
September 1, 2010, 2:38 pmAndrew says:
Ballantine, the first Justice Harlan dissented in Wong Kim Ark. But maybe he was just being a political partisan. He had that ability.
September 1, 2010, 2:43 pmPersonFromPorlock says:
Au contraire, it would make very good sense if the Founders weren’t certain it was needed and wrote it so that a later Congress, with more experience of an actual rather than a theoretical America, would have to re-write it. Which later Congress dropped the ball.
Thus, there’s a ‘rational basis’ justification for my reading of A2S1, which means that the Court, being well-saturated with the spirit of deference to the legislature, would surely uphold it.
September 1, 2010, 2:44 pmballantine says:
As far as I know, no court ever said a child of non-resident aliens is not a citizen. Wong Kim Ark said the natural born citizenship clause and the 14th Amendment were both declaratory of the English common law which, of course, had no such exclusion. The court’s holding was:
“The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.”
The court included children of resident aliens but did not limit the holding to such. In fact, the holding lists the exceptions to the jus soli rule and does not include temporary residents. However, there is some early authority to support such view. Story suggested such view in his Conflict of Laws but did not say such was US law. No other early authority suggested such was the rule. Early in the civil rights act debates Trumbull and Wilson made such suggestions. However, the exclusion of children of termporary residents was rejected the one time it was raised in the 14th amendment debates without objection. In addition, Trumbull would later describe the 14th Amendment solely in terms of the English common law. Accordingly, there is little evidence that the 14th Amendment was intended to make such exclusion.
September 1, 2010, 2:46 pmballantine says:
The dissent is very weak. Fuller cannot cite one ante bellum authority that specifically says birthright citizenship was not the law prior to the amendment. And he cherry picks a few quotes that are helpful to him from the debates while ignoring the vast majority of the legislative history. The decision was very political as their was much debate at the time as to citizenship of the chinese and indians. I am sorry, but no one can read the legislative history of the 39th Congress and honestly think they were adopting anything but the English common law.
September 1, 2010, 2:51 pmAndrew says:
Legislative history wasn’t available to the ratifying states. But like I said, the text of the Citizenship Clause, and it’s publicly available legal background, are ambiguous enough to invoke stare decisis, and thus support Wong Kim Ark.
September 1, 2010, 2:59 pmballantine says:
Whether Congress can expand the definition of “natural born” through its naturalization power is an interesting question. The legislative history of the 1790 Act shows they were just mimicking the English Parliament which had passed naturalization statutes that made children of natural born subjects born oversees natural born subjects for all intents and purposes. The fact that they felt they need to provide for such persons makes clear they were following English law and such non-native born persons needed naturlization statutes to be citizens. This issue came up again in 1855 when it was pointed out that such naturalization provision for the foreign born had sunsetted and Congress acknowledge that such persons would not be citizens without such a statute.
“By the common law, the better opinion always was, although there was a few dicta to the contrary, that children born out of the allegiance of the crown, and under the allegiance of another dominion, were aliens to the former and were subjects to the latter, or not, according to the municipal regulations of the country in which the birth might have happened to take place….I have had sent to me a pamphlet written by one of the most eminent lawywers in the United States, whose fame is known from the northern extreme to the southern boundries of our country, I refer to Horace Binney…He has published an elaborate pamphlet intending to draw attention to the subject to which I have now invited the attention of this house.” Rep. Cutting, Cong. Globe, 33rd. Cong., 1st Sess. pg. 170 (1854)
This, of course, has nothing to do with what native born persons are natural born citizens as it was well understood that “naturalization” only applied to the foreign born. For example:
“The right of naturalization was therefore, with one accord, surrendered by the States, and confided to the Federal Government. And this power granted to Congress to establish an uniform rule of naturalization is, by the well-understood meaning of the word, confined to persons born in a foreign country, under a foreign Government. It is not a power to raise to the rank of a citizen any one born in the United States, who, from birth or parentage, by the laws of the country, belongs to an inferior and subordinate class.” Chief Justice Taney, Dred Scott v. Sandford, 60 U.S. at 417
“It appears, then, that the only power expressly granted to Congress to legislate concerning citizenship, is confined to the removal of the disabilities of foreign birth.” Justice Curtis, Dred Scott v. Sandford, 60 U.S. (19 How.) 393, 478 (1857)
“But what is naturalization? It is the removal of the disabilities of alienage… Congress has power ” to establish an uniform rule of naturalization….An alien naturalized is “to all intents and purposes a natural born subject…The power is applicable only to those of foreign birth. Alienage is an indispensable element in the process. To make one of domestic birth a citizen, is not naturalization, and cannot be brought within the exercise of that power. There is an universal agreement of opinion upon this subject.” George Washington Paschal, The Constitution of the United States defined and carefully annotated, note 274, (1968)(citing Justice Swayne in US. v. Rhodes)
” I maintain that a negro can not be made a citizen by Congress ; he can not be made a citizen by any naturalization laws, because the naturalization laws apply to foreigners alone. No man can shake the legal truth of that position. They apply to foreigners alone; and a negro, an Indian, or any other person born within the United States, not being a foreigner, can not be naturalized; therefore they can not be made citizens by the uniform rule established by Congress under the Constitution, and there is no other rule. Congress has no power, as I said before, to naturalize a citizen. They could not be made citizens by treaty. If they arc made so at all, it is by their birth, and the locality of their birth, and the general operation and effect of our Constitution.” Sen. Davis, quoted in History of the thirty-ninth Congress of the United States, William Horatio Barnes, pg. 208, (1868)
September 1, 2010, 3:04 pmballantine says:
I suggest you read the Congressional Globe of the 39th Congress as the legislative history is not ambiguous at all. The vast majority of statements unambiguously support Wong Kim Ark’s conclusion.
September 1, 2010, 3:07 pmbahari says:
Obama was born a a Citizen of the United Kingdom & Colonies (the proper term under the British Nationality Act 1948 –”British Subject” is a term-of-art that applies to a much narrower catagory of persons.) and became a Kenyan Citizen on December 11, 1963 by operation of law. Kenya Const. 1963 Art. 90 cf. Kenya Const. [2010] Art. 14) The President’s Kenyan citizenship was lost on August 4, 1982 (his 21st birthday.) see Kenya Const. 1963 Art. 97)(1), but under the Kenyan Constitution proclaimed earlier this month, he may be entitled to resume Kenyan citizenship. (Kenya Const. Art. 16)
You also make reference to what is known as the “Right of Abode” under UK nationality law; the unrestricted right of Commonwealth Citizens to live and work in the UK was cut back in 1962, and eliminated (prospectively) by the Immigration Act (1971) [UK].
September 1, 2010, 3:11 pmChris Travers says:
I was just clearing up what Vince said.
Exactly my view. I’d add that the debate over whether this is simply a Feudal system misses the point. The point of a monarchy is that the monarch IS the state. This is part of the reason behind the royal “we” and can be found without too much digging into quotes by various kings at various times. The argument that this is inapplicable today doesn’t really hold any water because the “republic” can be easily substituted for “crown” and “state” for “feudal lord” to achieve something that is somewhat (though not quite perfectly) analogous.
September 1, 2010, 3:14 pmAndrew says:
That may be true, but the states that subsequently ratified the 14th Amendment did not have the Congressional Globe in front if them, as far as I know. They were instead relying on the original public meaning of the words and phrases in the text of the proposed amendment. But there’s no need for us to argue, because we both think Wpng Kim Ark is “good law”.
September 1, 2010, 3:18 pmAndrew says:
300! :-)
September 1, 2010, 3:26 pmballantine says:
I agree with you and do not mean to argue with you, though I think there are others on this thread who disagree with both of us.
I would also suggest that “subject to the jurisdiction” is about as unambiguous a legal term as one could find. In fact, the majority of the debates on the 14th Amendment focused on whether indians were subject to our laws or legislative jurisdiction as such is clearly the plain meaning of such term as understood by most members of such Congress and hence probably by the legislatures of such time.
The person who wrote the “subject to the jurisdiction” language even agreed, as he said he was simply codifying existing law, which he defined as:
“A citizen of the United States is held by the courts to be a person who was born within the limits of the United States and subject to their laws….. They became such in virtue of national law, or rather of natural law which recognizes persons born within the jurisdiction of every country as being subjects or citizens of that country. Such persons were, therefore, citizens of the United States, as were born in the country or were made such by naturalization; and the Constitution declares that they are entitled, as citizens, to all the privileges and immunities of citizens in the several States.” Senator Howard, Cong. Globe, 39th Cong., lst Sess. 2765-66 (1866).
September 1, 2010, 3:31 pmleo marvin says:
These birther threads are too few and far between for my taste. And as nice as “Fraud!” is, I’d like to see more “usurper.”
September 1, 2010, 3:38 pmjukeboxgrad says:
Then I have a hard time understanding why you’ve refrained from answering virtually all the questions I asked you.
Of course there is no “policy” that “bars” someone from making such “a request.” Duh. However, there is indeed a policy to not submit to such a request.
You keep asserting, over and over again, that she said something she didn’t say. She said what was available was “the vital record.” Please explain how you know that this means “the original certificate,” and not simply ‘a legal birth certificate.’ Especially because she has also said that “since the 1980s” the state policy is to issue only the document that has already been issued.
Proof, please.
Do you know of anyone who has made that argument? Because I have not. I think it would be good if you addressed what I’ve actually said, not what you imagine I’ve said. Same goes for what Okubo has said.
Really? Then hopefully you’ll explain why you said this:
Since you don’t know “when the last time was,” why did you say “to date?” What are those words supposed to mean? Because they imply that “original Hawaii birth certificates” are currently being issued by the state.
You ignored this question the last time I asked, so I suppose that’s what you’ll do again.
September 1, 2010, 3:47 pmChris Travers says:
In important ways, the plain language of the 14th Amendment creates an even stronger case for WKA than the Congressional Globe. The arguments that the 14th Amendment doesn’t apply to children of illegal immigrants, for example, comes entirely from the Congressional Globe and not from the plain reading of the amendment. So if we say that we only look to what the ratifiers thought it meant in terms of the public meaning of the words and phrases, the case for WKA’s citizenship is bulletproof. Only by looking over the Congressional Globe and stretching some meanings is it possible to even argue the other side.
September 1, 2010, 3:59 pmMick says:
Of course you are wrong (I do agree that children born in the US of Non Resident Aliens are not citizens). I’ve given many cites that support that Natural Born Citizens are born in the US of US Citizen parents.
The Venus (1814)
Dred Scott (1854)
Minor v. Happersett(1874)
Wong Kim Ark (1898)
Perkins v. Elg (1929)
All of these SCOTUS cases describe Natural Born Citizen exactly as Vattel. There is no SCOTUS case that defines NBC any less than Born in the US of US Citizen parents.
Then you could look in the Congressional Globe for the 39th Congress and you will find this, by the Principal writer of the 14th Amendment, John Bingham:
“I find no fault with the introductory clause, which is simply declaratory of what is written in the Constitution, that every human being born within the jurisdiction of the United States of parents not owing allegiance to any foreign sovereignty is, in the language of your Constitution itself, a natural born citizen; but sir, I may be allowed to say further, that I deny that the Congress of the United States ever had the power or the color of power to say that any man born within the jurisdiction of the United States, not owing foreign allegiance, is not and shall not be a citizen of the United States. Citizenship is his birthright, and neither the Congress nor the States can justly or lawfully take it from him.”
Just as Vattel defined it. NEVER in the Congressional Globe does it have ANY discussion about changing the meaning of Natural Born Citizen. Don’t you think there would have been discussion about changing POTUS eligibility?
September 1, 2010, 4:06 pmBut Truth and Common sense mean nothing to the Apologists of the Usuper.
Mick says:
That quote from Bingham is in the middle collumn, 2 paragraphs down on page 1291 of the Congressional Globe, 39th Congress, 1st Session.
September 1, 2010, 4:12 pmAndrew says:
Jukeboxgrad, although I’ve tried to be responsive, it appears those efforts have been futile. I’ve quoted three times the request that Okubu was responding to, and you have not denied that it covered the 1961 form.
Any semi-literate person would understand that the words “to date” mean “until now”. And if someone did not know that, they could easily look it up….
http://www.thefreedictionary.com/_/dict.aspx?word=to+date
Perhaps you also did not know that the word “duh” which you’ve repeatedly used is an insulting term.
You’ve also repeatedly provided the following link:
http://www.politifact.com/truth-o-meter/article/2009/jul/01/obamas-birth-certificate-final-chapter-time-we-mea/
But you haven’t quoted what part you’re relying on. I don’t see anything there about a law (much less a policy) indicating that Mrs. Nordyke would be completely unable to obtain the document today that she obtained before. True, she would first receive a document excluding physician and hospital names, but I don’t see anything on the link you’ve given that would bar a followup request for the document including physician and hospital names.
You now appear to be saying that you don’t think Obama would provide a copy of the 1961 document even if he could. It seems we agree.
September 1, 2010, 4:15 pmNickM says:
Your answer (to my question in an earlier thread about what happens when we say Bingham’s name 3 times) that J. Aldridge appears is close, but not accurate. As we now know from this thread, J. Aldridge’s friends appear.
Oh, and Orin, after this thread, you owe all of us beers.
Nick
September 1, 2010, 4:17 pmballantine says:
Wow, lot’s of nonsense. None of the cases you cite define natural born citizen according to Vattel. The Venus has a dissenting opinion by Marshall which quotes Vattel on the issue of the domicile of a citizen in time of war. Any first year law student would know the parts of the quote that touch on native citizenship is mere extraneous material as it unrelated to the purpose of the quote and hence is not authority. Marshall did define citizenship in The Charming Betsey when he said “Whether a person born within the United States, or becoming a citizen according to the established laws of the country, can divest himself absolutely of that character otherwise than in such manner as may be prescribed by law, is a question which it is not necessary at present to decide.” Chief Justice Marshall, MURRAY V. THE CHARMING BETSEY, 6 U. S. 64 (1804).
In Dred Scott, only one Justice, Daniel, in a concurrance cited Vattel on citizenship, the majority did not. However, two justices in dissent said the common law defined citizenship including Justice Curtis who specificallu defined Article II:
“The first section of the second article of the Constitution uses the language, ‘a natural-born citizen.’ It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth.” Justice Curtis, dissenting, Dredd Scott v. Sandford,, 60 U.S. 393 (1857).
Two Justices versus one. Not very good for you. justice Curtis’ opinion was later endorsed by the majority of the Supreme Court in Wong Kim Ark.
Minor had dicta that simply stated there were those who had doubts that the citizenship of parents didn’t matter under the common law and declined to address the issue. A case that declines to address the question of children of aliens is not authority on the issue of children of aliens. Duh.
If you can’t comprehend that Wong Kim Ark specifically and repeatedly states that natural born under the original constitution was defined by the english common law and see it spends 10 pages defining the english common law to based upon locality of birth alone, I really can’t help you. I suggest you read the dissent which understood that was how the majority defined natural born as they argued it wasn’t corrent.
I really don’t get the Perkins cite. The court merely acknowledged that the circuit court determined that she was natural born, it never defined a natural born citizen in any way. I suggest you read the circuit cour opinion that the supreme court endoreses. Yep, the common law:
“The law of England, as of the time of the Declaration of Independence, was that a person born in that kingdom owed to the sovereign allegiance which could not be renounced. Many early American decisions applied that as the common law in this country. All agreed that every free person born within the limits and the allegiance of a State of the United States was a natural born citizen of the State and of the United States.” Perkins v. Elg, 99 F. 2d 408, 410 (D.C. Cir. 1938), modified and affirmed, 307 U.S. 325 (1939).
I think you need to read the cases a little better.
September 1, 2010, 4:27 pmStopFloggingDeadHorse says:
Anyone can request anything. I can request 0 calorie cheesecake that tastes just like 800 calorie cheesecake. That doesn’t mean my request will be satisfied. States have absolute discretion as to the format of their birth certificates and they don’t have to issue them in a different format. They might have to provide supplementary information to what is on the normal certificate if a court so ordered (depending on state’s rights arguments) but barring that why would they?
I have a driver’s license; I assume my original written exam and road test report exist in some vault. Can I request to see them? Sure, I can request anything (see above). But I doubt the state would respond to my request.
You seem to think that anything some voters might want to see must be shown. Not so.
September 1, 2010, 4:32 pmChris Travers says:
I don’t see how The Venus is relevant, Minor v. Happersett refuses to decide the issue (see my comment to you above), and neither WKA or Perkins v. Elg make such a distinction.
Indeed the only one you can claim as an authority is Dred Scott v. Sanford which, as regards citizenship was both blatantly wrong even for the time it was decided and repealed by the 14th Amendment anyway.
It’s interesting to try to square this with the language of the 14th Amendment as a matter of construction. Bingham states that one must be a) born in the US, b) subject to the jurisdiction of the US, and c) having parents owing allegiance to no other foreign sovereignty. However the text he principally wrote omits c. Reading it back in strikes me as raising the question “why didn’t he just write what you think he meant?”
Furthermore if we take Sen. Bingham’s word as Revealed Truth, then this has the interesting effect of making the laws governing citizenship vs nationality of American Samoans entirely Unconstitutional.
September 1, 2010, 4:33 pmballantine says:
I find it amusing the birthers keep citin Bingham as important authority. First, they have no idea that Bingham is famous for strange views on the Constitution. Second, you ignore all the other members of such congress. Bingham made his comments during the civil rights debates on language he had nothing to do with. The language was written by Trumbull who said:
“By the terms of the Constitution he must have been a citizen of the United States for nine years before he could take a seat here, and seven years before he could take a seat in the other House; and, in order to be President of the United States, a person must be a native-born citizen. It is the common law of this country, and of all countries, and it was unnecessary to incorporate it in the Constitution, that a person is a citizen of the country in which he is born….I read from Paschal’s Annotated Constitution, note 274: “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. There are two exceptions, and only two, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassadors represent, and slaves, in legal contemplation, are property, and not persons.” Sen. Trumbull, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)
and
“The Constitution of the United States declares that no one but a native-born citizen of the United States shall be President of the United States. Does, then, every person living in this land who does not happen to have been born within its jurisdiction undergo pains and penalties and punishment all his life, because by the Constitution he is ineligible to the Presidency? Senator Trumbull, Cong. Globe, 39th Cong., lst Sess. 2901(1866).
Or you can cite the House judiciary chair of the 39th congress:
“Blackstone says ‘The first and most obvious division of the people is into aliens and natural-born subjects. Natural-born subjects are such as are born within the dominions of the crown of England, that is, within the ligeance, or as it is generally called, the allegiance of the king; and aliens, such as are born out of it.’ The principle here laid down applies to this country as well as to England. It makes a man a subject in England, and a citizen here… The English Law made no distinction on account of race or color in declaring that all persons born within its jurisdiction are natural-born subjects. This law bound the colonies before the revolution, and was not changed afterward. The Constitution of the United States recognizes the division of the people into the two classes named by Blackstone – natural born and naturalized citizens.” Rep. Wilson. Cong. Globe, 39th Cong., lest Sess. 1116 (1866).
“It is in vain we look into the Constitution of the United States for a definition of the term “citizen.” It speaks of citizens, but in no express terms defines what it means by it. We must depend upon the general law relating to subject and citizens recognized by all nations for a definition, and that must lead to a conclusion that every person born in the United States is a natural born citizen of such States, except it may be that children born on our soil to temporary sojourners or representatives of foreign Governments are native born citizens of the United States. Thus it is expressed by a writer on the Constitution of the United States: “Therefore every person born within the United States, its territories or districts, whether the parents are citizens or aliens, is a natural born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.” Rawle on the Constitution, pg. 86.” Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1117 (1866).
“On this question of citizenship, Mr. Marcy, while he was Secretary of State, in a note dated March 6, 1854, expressed himself as follows: ‘Although, in general, it is not the duty of the Secretary of State to express opinions of law, and doubts may be entertained of the expedience of making an answer to your inquiries an exception to this rule, yet, I am under the impression that every person born in the United States must be considered a citizen of the United States, notwithstanding one or both of his parents may have been alien, at the time of its birth.’ I quote this not to claim that it was written concerning a colored persons, but for the purpose of showing how broad the rule is that Mr. Marcy affirmed. Every person born in the United States must include negroes, for they are persons born in the United Sates; and I submit that, under the rule thus laid down, all such persons must be considered to be citizens of the United States.” Rep. Wilson. Cong. Globe, 39th Cong., lst Sess. 1116 (1866).
Or some other members of the same Congress:
“It is a singular fact, however, that to-day, under the Federal Constitution, a negro may be elected President, United States Senator, or a member of the lower branch of Congress. In that instrument no qualification for office is prescribed which rejects the negro. The white man, not native born, may not be President, but the native-born African may be.” Sen. Henderson, Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. 387 (1866)
“One of those principles is that the candidate voted for must be thirty-five years of age; another is that he must have been a citizen of the United States at the time the Constitution was adopted, or he must be a native-born citizen.” Sen. Davis, 2/2/1865 reported in The presidential counts: a complete official record of the proceedings of Congress at the counting of the electoral votes in all the elections of president and vice-president of the United States; pg. 203 (1877).
“What is the qualification for the office of President? He must be a native-born citizen of the United States and thirty-five years of age. Nothing more!” Rep. Boutwell, 1/11/69 cited in Great Debates in American History: Civil rights, part 2 Volume 8 of Great Debates in American History: From the Debates in the British Parliament on the Colonial Stamp Act (1764-1765) to the Debates in Congress at the Close of the Taft Administration (1912-1913), United States. Congress, pg. 113 (1913)
September 1, 2010, 4:35 pmStopFloggingDeadHorse says:
Look, if we’re going to quote Senators, why not quote one who is still alive. Orrin Hatch said in 2004, “What is a natural born citizen? Clearly, someone born in the United States or one of its territories is a natural born citizen”.
September 1, 2010, 4:46 pmVince Treacy says:
I concur with Ballantine, whose work on the subject at other sites has been excellent, and with Chris. Just to clarify, I agree with them, and disagree with Mick, and maintain that children born in the US of non-resident alien parents are citizens. It is children who are born to non-resident alien parents outside the US who have no claim to US citizenship.
I would just like to reiterate what I said above.
http://volokh.com/2010/08/31/the-ultimate-legal-blog-comment/#comment-928979
Bingham’s statement was from a debate on March 9, 1866, discussing the Civil Rights Act, not the Fourteenth Amendment, which was not even introduced until months later. The language of the Amendment differs from that of the Civil Rights Act. Bingham was not even talking about the Fourteenth Amendment, so his words have little import. The authorities quoted by Ballantine are persuasive.
September 1, 2010, 4:50 pmAndrew says:
StopFloggingDeadHorse, while I can understand the temptation to portray others as complete morons, I assure you that I’m aware of the difference between the right to make a request and the right to have it granted. As I said above (which you quoted!): “I don’t see anything there [i.e. in the Politifact link] about a law (much less a policy) indicating that Mrs. Nordyke would be completely unable to obtain the document today that she obtained before.” I was obviously referring there to her ability to “obtain” and not merely her ability to request.
Just so no one gets the wrong idea; I think the birthers are nuts. But I also agree with what Andrew Sullivan once wrote about this:
“It is our job to demand all the evidence we want or need. I know the electronic record is legit. I have no doubt that Obama has every constitutional right to be president. I think the Birthers are nuts. But there is no reason on earth that the original cannot be retrieved and shown. Jon Klein and CNN were wrong, and I retract my apology of yesterday. Obama promised total transparency. Where is it?”
September 1, 2010, 5:14 pmStopFloggingDeadHorse says:
Andrew: You are playing cute. I doubt the Hawaii legislature takes the time to pass a law that says, “No 1961-style birth certificates from this day forward”. The DOH, as part of its mandate to manage records periodically updates the format of their various forms, as DMV does, as the State Department does with passports (making them machine-readable0. When they go to a new version, they no longer issue the old one. Does that mean they no longer have the information? No, they still do.
I know that Dr Conspiracy has a standing challenge to anyone born in Hawaii to order a bc in the Nordyke format TODAY and show it to the world (they can block out all of all the personal information). No one has been able to show one. Until they do, any claim that someone can get one is completely unsupported speculation.
September 1, 2010, 5:24 pmAndrew says:
StopFloggingDeadHorse, if I found one from 1985, you would say, “no it has to be more recent than that.” Ditto for 1990, 1995, 2000, and 2005. The point is, it would not hurt the WH to ask, as Okubu suggested the WH should do. And then if the state refuses or obliges, the stupid issue quickly goes away forever. Certainly Obama can describe for the state a humdinger of extenuating circumstances (e.g. a lieutenant colonel is refusing to deploy).
September 1, 2010, 5:34 pmMick says:
Boy what a load of BS from the Usurper apologists (very rabidly and desperately I might add) above who have come out in force to quash all dissent of the Usurper.
I am not going to bore you all w/ the direct quotes, since the liars know where they are anyway. These are all citizenship cases in some way, which is why the dicta of the cases gives an overview of citizenship.
The Venus (1814) is only 27 years after ratification, with men who were present at the Revolution, including John Marshall on the panel, Quotes Vattel exactly as the source of the meaning of Natural Born Citizen (NBC). It’s right there for all of you to see what lying apologists are on this thread.
Minor v. Happersett (1874) says that it was NEVER DOUBTED that Natural Born Citizens are those born in a country of parents who are it’s citizens, and doubts that the children of aliens are even citizens (clearly drawing a distinction), leaving that question for a later date. It also says that the definition of NBC is not in the USC, which means that it was not in the 14A either since it was 1874 and the 14A had been part of the USC for 8 years.
Wong Kim Ark (1898) directly quotes the Minor v. Happersett NBC passage, and also the same question as to whether the children of aliens are even citizens, but says that this time that they will answer that question. Justice Gray compares Wong (who’s parents were unnaturalizeable due to the Chinese Exclusionary Acts) to the children of negro slaves who’s parents were unable to naturalize because they were slaves. His holding was that Wong was a Citizen (not a NBC) since his parents were Legally Domiciled Resident aliens.
He rambled through a long dissertation of British Loyalist activist holdings, but eventually declared Wong a CITIZEN, not a Natural Born Citizen. He also quoted Joseph Story who said that the “CITIZEN CHILD of an ALIEN has as many rights as the NATURAL BORN CHILD of a Citizen.”
Perkins v. Elg (1929) was another citizenship case.
Miss Elg’s parents were naturalized Swedish Americans before her birth in NY (mother was naturalized by naturalization of father). Miss Elg was declared a “Natural Born Citizen”, and could repatriate in the US at the time of her majority, even though they had moved back to Sweden and repatriated there during Miss Elg’s minority.
The Elg case also discussed the case of a Mr. Steinkauler, who had a similar case of his parents becoming naturalized US Citizens and then moving young Mr. Steinkauler, who was born in the US after the father’s naturalization, back to Germany. The court said Mr. Steinkauler upon repatriation in the US at his majority was a Native-Born Citizen with the “ability to become POTUS”.
Elg also dicussed the case of Mr. Bohn, who was born in the US of non citizen German parents. The court declared that he was an “American Citizen”.
That court clearly made the distinction between Naturalized Citizens, Natural Born Citizens and American Citizens. It also pointed out that foreign countries had the right to determine their own Naturalization laws, and that possession of dual citizens in minority was the indicator of jourisdiction.
Vattel’s Law of Nations was the most quoted source in the SCOTUS in the 19th century, yet the obfuscators would have you believe that Vattel was just some nutty philosopher. Scalia even sourced Vattel recently in Heller. Natural Law was the basis of the founders political philosophy as evidenced by the pledge to adhere to the “Laws of Nature” in the Declaration of Ind.
September 1, 2010, 5:45 pmThey ignore the FACT that Natural Law is embedded in our USC at A1S8C10 (law of nations)as our common law of international relations (which includes citizenship issues). It is laughable to say that the framers thought BC Law was good for a nation that was breaking away from it. It is laughable that they think the framers thought children of aliens (1 or 2) born in the US could be POTUS. Where do you think Natural God-given rights came from? It certainly wasn’t BC Law.
StopFloggingDeadHorse says:
Obama got his in 2007. Anything since then would be fine.
But, more importantly, why should the WH write and make a special request? The form is irrelevant to whether a member of the armed forces has to obey orders. His choices are: 1. deploy (though it’s too late now); 2. go to jail. There is no #3. Can’t you understand that a President catering to some individual soldier’s desire for some document that the soldier has no legal claim to would set a terrible precedent?
Here’s the bottom line: In every human endeavor some body or set of bodies is delegated to make decisions. In the case of Presidential eligibility it’s the 50 Secretaries of State, the voters as a whole, the Electoral College and Congress. The military or individual members are not in that list other than that they get to vote like everybody else.
No documents for Lakin. No special request from Obama to be treated differently from any other Hawaiian. Period. End of discussion.
September 1, 2010, 5:49 pmAndrew says:
I can see how leaking top secret Defense Department stuff to Wikilinks is unethical because it will get people killed. I do not see the problem with releasing a crummy birth certificate from 1961. The whole controversy strikes me as incredibly absurd. A lousy birth document is not going to get anyone killed, nor would a little bit of glasnost. Remember glasnost? By analogy, it’s the job of Congress to pass laws, but that doesn’t mean that ordinary citizens must be denied all information relevant to whether a particular bill is wise.
September 1, 2010, 6:00 pmChris Travers says:
Not authoritative for reasons others have said.
That’s a funny reading. Yes, it says that there has been no doubt that natural-born citizenship extends to children of citizens born in the country. It also says that some authorities suggest that this includes children born in the country to foreign nationals, and goes further to say that there has been some doubt to this by some authorities but never to the other. The court then says they don’t have to decide this matter. Saying that’s a clear line when the court is clearly saying it’s not clear but that it’s outside the scope of the present case is a strange reading.
You are trying to parse these too closely. No court in this country parses precedent in the same way it parses statute (or if one does, I have never seen it).
That’s not what the court said. Read it again. The court was quoting a passage from the Attorney General at the time of the Steinkauler case. Moreover this largely omits the context of the quote which was preserved in the original opinion, namely that it involved the question of whether a US citizen by birth, returned to his father’s native country of Germany and naturalized as a minor could petition the US government for help avoiding German military service prior to achieving the age of majority (and the AG answers that question in the negative despite saying that if upon reaching the age of majority, Steinkauler could opt to return to the US and avail himself of such help, and could even be eventually elected President of the voters so choose).
I’m not impressed with your argument so far.
The piracy clause? What does that have to do with citizenship?
September 1, 2010, 6:11 pmLoophole says:
It appears that Vince Treacy is playing fast and loose with the term “non-resident alien”.
non·resi·dent (nän′rez′ə dənt)
adjective; not residing in a specified place; esp., having one’s home in some locality other than where one works, attends school, etc.
noun
1.one whose permanent home is not where one is staying
2.one who lives away from the locality of one’s business, school, etc.
A non-resident alien could be temporarily (on vacation or for a job or as a student) located in the U.S.
September 1, 2010, 6:25 pmjukeboxgrad says:
What the request “covered” is not what matters. What matters is what she said. I’m still waiting for you to show us where she offered to make “the 1961 form” available to anyone, including Obama.
Then you have contradicted yourself. Let’s review. You said this:
That’s you claiming that “original Hawaii birth certificates” are being obtained “until now,” i.e., currently. But you also said this:
So which is it? If you’re “not sure when the last time was when Hawaii issued a copy of an original birth certificate,” why did you claim they are being obtained “until now,” i.e., currently?
I use that word to indicate that the thing I just explained is something I should not have needed to explain. When you insult my intelligence by asking an absurd question, I am going to point out that you asked an absurd question. If you can demonstrate that your absurd questions are not absurd, please do so.
In my comment here, I did indeed do exactly the thing that you claim I have not done. Here are the most important words: ” ‘There’s only one form of birth certificate,’ she said, and it’s been the same since the 1980s.”
Please explain which of the simple English words “there’s only one form of birth certificate” you need help understanding.
Of course there is nothing to “bar a followup request.” Here’s my request: can I have my pony now?
Then it’s hard to understand why you have repeatedly focused on the former, instead of the latter, which is what matters.
It would be good if you stopped trying to put words in my mouth. You’re having enough trouble comprehending the words that are actually there.
Good luck convincing anyone that you’re not a birther. A birther is someone who thinks Obama needs to do more to prove where he was born.
If you found one for 1990 or later, it would be sufficient to falsify what Okubu said (“it’s been the same since the 1980s”). So can you do that? I guess not.
I already explained why there is good reason for Obama to not ask, but you have ignored that. Your MO seems to be to ignore all facts and logic you find inconvenient, while inventing other facts of your own. Like this one:
I hope you can show us where “Okubu suggested” this.
The idea that birtherism ever really “goes away” is silly. Whatever has been released, they treat as not genuine, and they would react the same way to any further documents that would be released. Treating irrational people as if they are rational is a mistake.
A better example of the tail wagging the dog would be hard to find.
Those first four words are sufficient. You really don’t need to say anything else. I have already described various problems, but they are among many things you choose to “not see.”
Also, still waiting for you to substantiate this claim you made: “[Obama] has opposed release of the 1961 certificate in every legal forum where the question has arisen.”
September 1, 2010, 6:27 pmballantine says:
Sorry, your insults do not help you mischaracterization of law. You obviously don’t understand that you are citing the opinion of one Justice in dissent in The Venus and hence such is not the opinion of the Court and is not precedent and that the quotation you cite had nothing to do with either who is a natural born citizen (and does not contain those words) or who is even a citizen at all and hence cannot be authority on either point. I suggest you do some more reading or go to law school.
Again, Minor left the question open and hence is not authority. Again, not really that hard to understand.
Wong Kim Ark cited Minor for the proposition that the Slaughterhouse court (which had basically the same member ship) was not committed to a view other than birthright citizenship. The Wong Kim Ark court had already told us repeatedly that the “natural born” was defined by the common law.
“[t]he Constitution of the United States, as originally adopted, uses the words ‘citizen of the United States,’ and ‘natural-born citizen of the United States’” and that “[t]he Constitution nowhere defines the meaning of these words.” Id. at 654. Accordingly, “[i]n this as in other respects, it 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….’[t]he 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.’ Smith v. Alabama, 124 US 465, 478 (1888).” Id. at 654-55. The court then goes on to define in detail the jus soli English common law rule of Calvin’s Case, concluding as follows: “It thus clearly appears that by 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.” Id. at 658. Hence, the English common law rule of Calvin’s Case that defined allegiance by place of birth and made children of aliens natural born subjects “continued to prevail under the constitution as originally established” or, in other words, was incorporated into the Constitution. In case there was any doubt to the applicability of such principle to the definition of “natural born citizen” in the Constitution, the court goes on to quote the only two Supreme Court justices who had specifically defined “natural born citizen” at such point, first citing Justice Curtis in his famous Dred Scott dissent:”The first section of the second article of the Constitution uses the language, ‘a natural-born citizen.’ It thus assumes that citizenship may be acquired by birth. Undoubtedly, this language of the Constitution was used in reference to that principle of public law, well understood in this country at the time of the adoption of the Constitution, which referred citizenship to the place of birth” Id. at 662. The court then cited Justice Swayne in U.S. v. Rhodes, 1 Abbott, US 28 (Cir. Ct. Ky 1866):”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.” Id. at 662-63. The court went on to cite multiple authorities stating that “citizen” and “subject” were interchangeable terms, id. at 663-65, and authority after authority stating that allegiance and citizenship at birth in the United States had always been determined by place of birth under the jus soli rule of Calvin’s Case, id. at 650-67, before holding the 14th Amendment to be declaratory of such jus soli common law rule. Id. at 693.
I suggest you read the case again. And the court cited Story repeatedly on the English common law being the basis of US citizenship and allegiance. for example:
“Mr. Justice Story stated the reasons upon this point more at large, referring to Calvin’s Case, Blackstone’s Commentaries, and Doe v. Jones, above cited, and saying: Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is, and allegiance by birth is that which arises from being born within the dominions and under the protection of a particular sovereign. Two things usually concur to create citizenship: first, birth locally within the dominions of the sovereign, and secondly, birth within the protection and obedience, or, in other words, within the allegiance of the sovereign. That is, the party must be born within a place where the sovereign is at the time in full possession and exercise of his power, and the party must also, at his birth, derive protection from, and consequently owe obedience or allegiance to, the sovereign, as such, de facto. There are some exceptions which are founded upon peculiar reasons, and which, indeed, illustrate and confirm the general doctrine. Thus, a person who is born on the ocean is a subject of the prince to whom his parents then owe allegiance; for he is still deemed under the protection of his sovereign, and born in a place where he has dominion in common with all other sovereigns. So the children of an ambassador are held to be [p660] subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince. 3 Pet. 155. “The children of enemies, born in a place within the dominions of another sovereign, then occupied by them by conquest, are still aliens.” 3 Pet. 156. Nothing is better settled at the common law than the doctrine that the children, even of aliens, born in a country while the parents are resident there under the protection of the government and owing a temporary allegiance thereto, are subjects by birth. 3 Pet. 164.”
On Perkins v. Elg, again, the court never defined who was natural born despite what the condition of the parents were. Show me language to the contrary. Again, the only place “natural born” is referred to is an acknowledgement of the lower court’s finding which were based upon Blackstone and the common law. The court made no distinction based upon the parentage at the time of birth but talks about the loss of native citizenship by actions following birth. In addition, the case clearly affirmed Wong Kim Ark:
“First. On her birth in New York, the plaintiff became a citizen of the United States. Civil Rights Act of 1866,14 Stat. 27; Fourteenth Amendment, § 1; United States v. Wong Kim Ark, 169 U. S. 649. In a comprehensive review of the principles and authorities governing the decision in that case — that a child born here of alien parentage becomes a citizen of the United States — the Court adverted to the “inherent right of every independent nation to determine for itself, and according to its own constitution and laws, what classes of persons shall be entitled to its citizenship.”United States v. Wong Kim Ark, supra, p. 169 U. S. 668. As municipal law determines how citizenship may be acquired, it follows that persons may have a dual nationality. [Footnote 1] And the mere fact that the plaintiff may have acquired Swedish citizenship by virtue of the operation of Swedish law on the resumption of that citizenship by her parents does not compel the conclusion that she has lost her own citizenship acquired under our law. As at birth she became a citizen of the United States, that citizenship must be deemed to continue unless she has been deprived of it through the operation of a treaty or congressional enactment or by her voluntary action in conformity with applicable legal principles.”
I suggest you read the case again if you have ever read it.
Vattel was not the most cited source in the 19th century. Blackstone has been cited many more times than Vattel and Scalia cites Blackstone in nearly case on the constitution. Also, I suggest you read the debates in the constituional convention and see that when discussing eligiblity for office holders, only place of birth was discussed. No one raised the issue of parentage or Vattel as no one in America during such period looked to Vattel on the question of citizenship. I think you have a good deal of research to do.
September 1, 2010, 6:28 pmChris Travers says:
If I may, I think Andrew’s point is that we, the people, are an important judge of who a natural born citizen is, and that we, the people, have a responsibility to ask for evidence to satisfy any doubts. Thus what I hear him saying is that while the birthers may be crazy, they are not crazy because they are asking for evidence, and indeed they have an obligation to ask for such in order to investigate their doubts.
Am I wrong about this?
FWIW, that viewpoint makes a great deal of sense. Furthermore I think it wouldn’t be a bad idea for presidents to establish their citizenship publicly as both candidates did in the last race.
September 1, 2010, 6:44 pmAndrew says:
I acknowledge that Ms. Okubo dd not use the precise words “the 1961 form.”. And with that response to your first point, I will now excuse myself from looking at your extremely long litany of other points. because this discussion has occupied too much of my time already. Good luck on getting to 400 comments!
September 1, 2010, 6:44 pmGuy says:
The court quotes Vattel for a discussion of the distinction between citizens and resident aliens, and for the concept of domicile, the language defining citizenship is not the reason for the quotation, and would be textbook dicta if said by the court (but it isn’t even dicta, since it is just being quoted).
It says it was never doubted that at least that group are natural born citizens, you’re flatly misreading the case if you think it’s saying that it was never doubted that no one but that class are natural born citizens.
The whole sentence is “The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.” (emphasis mine) You should be careful about inserting periods into quotes where they don’t belong, someone might get the impression that you’re deliberately distorting the quoted material. The whole point of Wong Kim Ark is that he was a natural born citizen, this is the reason why the Court discusses the term, and why it discusses the definition of natural born subject, because the Court’s conclusion is that the common law rule was adapted into our system, this is also what the dissent is complaining about.
Also, why is “natural born child” interchangeable with “natural born citizen” if “natural born subject” is not?
Did you notice the part where the Court was quoting different executive branch officials in completely discrete instances? The omission of the words “natural born” or “native born” (by the way, I thought your position was that “native born” is different from “natural born”) does not indicate any intentional distinction being drawn.
Sigh…
“The privilege of the writ of habeas corpus shall not be suspended, unless when in cases of rebellion or invasion the public safety may require it.” – Art. I §9 Cl. 2
“The judicial Power shall extend to all Cases, in Law and Equity[...]” – Art. III §2 Cl. 1
“In suits at common law, where the value in controversy shall exceed twenty dollars, the right of trial by jury shall be preserved, and no fact tried by a jury, shall be otherwise reexamined in any court of the United States, than according to the rules of the common law.” – Amendment VII
The Constitution is filled with references to the common law, I’m not going to go out of my way to pick them all out for you, but what’s laughable is saying that the common law should be disregarded in spite of the fact the term “natural born citizen” was adapted straight out of it and in obvious reference to it.
September 1, 2010, 6:47 pm