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Judge and Jury: Arguments on “natural born citizen”

Judges and juries are different. Juries are lay people like you and me, who make decisions like you and me. Juries decide what the true facts are when there is doubt, but they are never asked to decide what the law is. Judges have special training in the law. They decide based on rules, laws and precedents. Judges decide what the law means.

Just as judges and juries are different, arguments on the meaning of “natural born citizen” are different. There are arguments addressed to lay people and there are arguments addressed to judges. Lawyers make both kinds of arguments.

In one case we have a retired lawyer, Leo C. Donofrio, running the Natural Born Citizen blog. Natural Born Citizen is a web site geared to the non-specialist mass consumer. Sometimes this site is very much trying to sway the layperson using the same skills that a defense attorney uses to get his guilty client off — misstatement, misdirection, confusion and appeals to prejudice.  Further, it is an advocacy site dedicated to one particular view, making no claim to present all sides with equal vigor.

Contrasting Natural Born Citizen are law review articles, and scholarly journals, written to examine all sides of an issue in a rigorous manner.  There are some very pertinent scholarly articles on “natural born citizen” including:

Mr. Donofrio dismisses such articles by saying: But most of the published arguments on the natural born Citizen issue are recently published law review articles which haven’t done a very good job of presenting the whole truth and nothing but the truth. This is lawyer misdirection meaning “don’t go read these articles because they disagree with what I’m saying.” Unlike Donofrio’s one-sided advocacy web site, these articles (written from 1988 to 2006) are not tainted by the current candidates and controversy of  2008 election cycle. And further, there are no such articles known to this writer that take Donofrio’s side.

One thing the articles have in common are titles suggesting confusion over interpretations of the “natural born citizen” clause, and this might lead the reader to the mistaken belief that the concept is up for grabs. However, the articles agree on one basic thing:  all persons born in the United States and under its jurisdiction are “natural born citizens.” Here are the relevant quotes:

  • It is well settled that “native-born” citizens, those born in the United States, qualify as natural born.
  • United States citizens born to parents subject to United States jurisdiction in one of the fifty states are unquestionably natural born citizens…[subject to United States jurisdiction] excludes the children of foreign diplomats and enemy combatants from United State citizenship…The Constitution does not bar dual nationals from becoming President

The ambiguity arises for children not born in the United States.

Another source of argument are things written by judges for lawyers and other judges, and these include court rulings. The United States Supreme Court has never ruled on a natural born citizen case; however, they have touched it in other contexts. One of the most important citizenship cases is United States v. Wong Kim Ark, decided by the US Supreme Court. This case is foundational for any discussion of the natural born citizen question. In some cases, little snips are taken out of it to prove some point or another. Here, let me do a snip for you. Wong was decided with a strong reliance on common law, where British common law was the basis for American common law. The Supreme Court said:

…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…”Subject”and “citizen”‘ are, in a degree, convertible terms as applied to natives; and though the term “citizen” seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, “subjects,” for we are equally bound by allegiance and subjection to the government and law of the land.

It was never the intent of this article to persuade anyone what natural born citizen is. It is the intent of this article to inform the reader where to go to the the best information to help him or her make up their own minds.

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13 Responses to Judge and Jury: Arguments on “natural born citizen”

  1. avatar
    Hitandrun December 27, 2008 at 4:22 pm #

    admin writes:

    >Juries decide what the true facts are when there is doubt. Judges have special training in the law. They decide based on rules, laws and precedents. Judges decide matters of law.<

    Please allow me a semantic quibble, admin. Juries in fact do not “decide what the true facts are.” Instead they construe as best they can what the facts may have been. The facts endure, regardless of how accurate or inaccurate that construal may be.

    Also, in the real world, judges address matters of both fact and law. The two are difficult if not impossible to separate completely. Judges’ use of ‘standing’ at their own discretion, to escape ruling on fundamental Constitutional ‘controversies’, while at the same time impugning such petitions as “frivolous” and “meritless”, is a classic example of having your cake and eating it too. The ‘standing’ barrier is simply one more way of blocking ordinary citizens from getting a formal hearing and ruling on the merits. No?

    Hitandrun

  2. avatar
    Dr. Conspiracy December 27, 2008 at 5:08 pm #

    Hitandrun,

    I think Judge Surrick’s order in Berg v. Obama et al. is an important document for anyone who has concerns about the issue of standing. Far from being arbitrary, this decision is solidly backed in law, and demonstrates that the dismissal of Berg’s suit was not only proper but necessary.

    Standing is much easier in State court than in Federal court.

  3. avatar
    Jasper James December 28, 2008 at 4:46 pm #

    The fact that there is uncertainty about this issue of what is a “natural born Citizen” is sufficient evidence that it needs proper vetting by the courts. The fact that a bill was required to define McCain as a NBC proves members of congress are well aware of the issue – and now ignore it with Obama. The fact that there is a bill before congress to define what is a NBC proves that there is an issue. How can we have a president with a cloud of uncertainty hanging over his head. Congress will rubber stamp the election – because no congressperson has the nerve to say “Where is this man’s birth certificate?” or even “Who validated this man’s eligibility”. The murky issues surrounding Obama’s citizenship need to be clarified. His BC vs COLB is not clear, his actual birth location is not clear (if his COLB is simply a registration of birth), his actual citizenship is not clear (if his U.S. Citizenship was given up), his legal name is not clear (if he was legally adopted or if his Mother was never really married to Obama Sr.). And the issue of the meaning of NBC is not really clear and the issue definitely applies to Obama since his father was not a Citizen. The people have a right to know. Article X of the constitution says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It seems to me the authority to determine the eligibility of the presidential candidate’s has not been delegated to the United States by the Constitution, nor is it prohibited by it to the states, therefore it is reserved to the States respectively, or to the people. This seems to me to be sufficient authority for people of the United States to investigate and to determine the eligibility of a candidate for the presidency.

  4. avatar
    Dr. Conspiracy January 1, 2009 at 10:05 pm #

    The fact is that there is no uncertainty that a person born in the United States, not the child of a foreign ambassador, is a natural born citizen of the United States. There never has been a dispute over that point.

    Your claim that no one in Congress has “nerve” is ludicrous. You [referring now generally to a class of people] have one idea: “Barack Obama must not be President”, and then twist the whole world around to fit that theme. You twist the Congress and the Courts into cowards, the Selective Service become felons, the Hawaiian birth certificates become fake-citizen factories, you twist the Constitution to make new definitions, you take the word of a cartoon document examiner over a Senator…it’s pathetic how insane this is. Freaking insane.

    The only “cloud of uncertainty” is over your own mind.

  5. avatar
    laughinghysterically January 1, 2009 at 10:12 pm #

    Dr Conspiracy:

    “The only “cloud of uncertainty” is over your own mind.”-

    Well said, sir!!

  6. avatar
    bogus info January 1, 2009 at 10:20 pm #

    Dr Conspiracy:

    “The only “cloud of uncertainty” is over your own mind.”-

    Amen and Amen!

  7. avatar
    Hitandrun January 3, 2009 at 5:16 pm #

    Jasper James writes:

    >The fact that there is uncertainty about this issue of what is a “natural born Citizen” is sufficient evidence that it needs proper vetting by the courts. The fact that a bill was required to define McCain as a NBC proves members of congress are well aware of the issue – and now ignore it with Obama. The fact that there is a bill before congress to define what is a NBC proves that there is an issue. How can we have a president with a cloud of uncertainty hanging over his head. Congress will rubber stamp the election – because no congressperson has the nerve to say “Where is this man’s birth certificate?” or even “Who validated this man’s eligibility”. The murky issues surrounding Obama’s citizenship need to be clarified. His BC vs COLB is not clear, his actual birth location is not clear (if his COLB is simply a registration of birth), his actual citizenship is not clear (if his U.S. Citizenship was given up), his legal name is not clear (if he was legally adopted or if his Mother was never really married to Obama Sr.). And the issue of the meaning of NBC is not really clear and the issue definitely applies to Obama since his father was not a Citizen. The people have a right to know. Article X of the constitution says “The powers not delegated to the United States by the Constitution, nor prohibited by it to the States, are reserved to the States respectively, or to the people.” It seems to me the authority to determine the eligibility of the presidential candidate’s has not been delegated to the United States by the Constitution, nor is it prohibited by it to the states, therefore it is reserved to the States respectively, or to the people. This seems to me to be sufficient authority for people of the United States to investigate and to determine the eligibility of a candidate for the presidency.<

    This is exactly right, JJ. Be forewarned though: the thought police on this site are quite prepared to gag and sanction you. They’ll certainly deny you standing and any hope of court ruling on the merits.

    Stay well,
    Hitandrun

  8. avatar
    Dr. Conspiracy January 3, 2009 at 7:12 pm #

    Gag? Sanction? Get a dictionary. All you’ve gotten here is a few snide remarks (which I probably shouldn’t have said).

  9. avatar
    Patrick McKinnion January 3, 2009 at 7:58 pm #

    Bear in mind that “Jasper James” is now “TedBoting” sites saying that Obama can’t be a NBC because Hawaii isn’t a legal state…….

  10. avatar
    Dr. Conspiracy January 3, 2009 at 8:19 pm #

    I thought as I read that that it sounded like Ted. Just as long as he only posts the message once, he’s welcome to his opinion.

  11. avatar
    bogus info January 3, 2009 at 8:32 pm #

    What has alarmed me is the viciousness of some of these people on these blogs. Perhaps it is only because of the anonymous nature of these blogs which I truly hope is the case and not how they actually act in the real world.

  12. avatar
    Hitandrun January 7, 2009 at 7:09 pm #

    Doc writes:

    >The fact is that there is no uncertainty that a person born in the United States, not the child of a foreign ambassador, is a natural born citizen of the United States. There never has been a dispute over that point.<

    No uncertainty, Doc? Never any dispute?
    Hard to believe.

    Hitandrun

  13. avatar
    Dr. Conspiracy January 7, 2009 at 8:27 pm #

    I overreacted to Jasper James remarks a bit. But there has never been any significant dispute. There were two dissenting votes on the Supreme Court in United States v. Wong Kim Ark, for example and there are various folks who argue that Wong was decided wrongly. There are anti-immigrant factions and same-race promoters. There are minorities who believe that blood is stronger than place. But since the 14th amendment, the issue of citizenship based on place is well established, and this is the ONLY kind of citizenship at birth mentioned in the Constitution.

    I would not be surprised if the number of people who believe a natural born citizen must have citizen parents has increased by 100 fold over the last 6 months.