Comments on: Wikipedia article on Natural-born citizen

By: ballantine

ballantine — Fri, 25 Sep 2009 19:08:04 +0000

It is also pretty amusing that birthers try to make a big deal of John Bingham, who in 1866, appears to be the first person they can find who makes a statement that seems to comply with their two-parent theory. It is unclear what Bingham means with his statement. Whether parents owed allegiance to a foreign sovereignty would be based upon the laws of allegiance and expatriation such sovereignty. Was he actually suggesting we should let such sovereignties define our citizens? Whatever Bingham meant, there is no evidence anyone else in Congress shared his opinions. In same debate Rep. Wilson, the house judiciary committee chairman who introduced the bill, declared that “natural born citizen” was defined by the English common law rules citing Blackstone and Rawle. Senator Morrill made clear that “natural born citizen” status is given by birth itself. Senator Henderson and Davis stated at some point that the president must be native born. Senator Trumbull, author of the Civil Rights Act Bingham was talking about, stated the president must be native born and made clear that “natural born citizen” should be defined in accordance with the English common. Clearly the opinion of one congressman 79 years after the federal convention is not worth much weight with respect to the original understanding, particularly when multiple other congressmen contradict him. Bingham did not write the citizenship clause in either the Civil Rights Act or the 14th Amendment, so it is not clear why his opinion should be given any extra weight. It is also worth noting that some of the most influential conservative scholars of the 20th century (the mentors of the conservatives on the court) have seriously questioned Bingham’s views as being muddled, inconsistent and idiosyncratic or confused. See, Charles Fairman, Does the Fourteenth Amendment Incorporate the Bill of Rights?, 2 STAN.L.REV. 5 (1949); RAOUL BERGER, GOVERNMENT BY JUDICIARY 145 (1978). Alexander M. Bickel, The Original Understanding and the Segregation Decision, 69 HARV.L.REV. 1, 5 n. 13 (1955). Part of this was due to Bingham’s apparent belief that the bill of rights applied to the states prior to the adoption of the 14th Amendment. Such position was clearly inconsistent with the history and text of the bill of rights. The importance birthers try to give to Bingham underscores the lack of authority they have for their position.

By: ballantine

ballantine — Fri, 25 Sep 2009 18:57:52 +0000

It is pretty amusing that birthers keep citing Jay as if he helps their cause when he doesn’t define what is a “natural born citizen.”

By: Greg

Greg — Fri, 25 Sep 2009 17:46:58 +0000

Too bad for you that the Constitution was written and ratified long before the 1900’s

It's too bad for me that your interpretation of "natural born" wasn't mentioned by anyone until the 1900s? I don't think it works that way.

John Jay’s letter to Washington disproves that.

John Jay wanted to restrict the Presidency to those who were natural born citizens, distinguished from those who were born somewhere else, and moved here and became citizens - i.e. naturalized citizens. That's why the requirements for Senator and House require only citizenship - you can be a naturalized citizen and, after living here for some years, become a member of Congress. I'll repeat. No founder conceived of someone being born here, becoming a citizen because of that birth and not being eligible for the Presidency!

By: Vince Treacy

Vince Treacy — Fri, 25 Sep 2009 13:36:17 +0000

The sentence quoted by Bell is very popular on the web, but it is irrelevant to the debate on the 14th Amendment. The birthers seldom if ever mention that Bingham was not talking about the 14th Amendment at the time. He was speaking in a debate two months earlier about the Civil Rights Act, not in the debate on the proposed 14th Amendment.

The 14th amendment omitted the phrase “not owing allegiance to any foreign sovereignty” from its text. Use of the Bingham quotation is an effort by the “dualists” to read a requirement into the 14th Amendment that the Congress had before it and expressly declined to include.

The Supreme Court has rejected that method of statutory construction, most notably in Youngstown Sheet & Tube v. Sawyer, the Steel Seizure case, of 1951

By: Charles Bell

Charles Bell — Sun, 20 Sep 2009 12:26:36 +0000

Greg: You may want to read more than just that one sentence of Bingham’s. In the paragraphs surrounding it, he uses citizen interchangeably with natural born citizen. There’s simply no example of anyone before the early 1900s making a distinction between a “native-born” and a “natural born” citizen.

Too bad for you that the Constitution was written and ratified long before the 1900's and it is the meaning and intent of the original framers in 1789 of Article II that is relevant. The truth is that in the entirety of the rest of the Constitution "natural born" citizen was never used and it is that fact itself that gives its usage in Article II a distinct purpose, and the intent and purpose of the 14th a different application, though, as I have said, a freed slave in 1868 being both a mere "citizen" and a "natural born citizen" would be eligible for the Presidency while Obama as a mere citizen not eligible.

Greg: No founder conceived of a situation where you could be born here, become a citizen, and not be eligible for the Presidency.

John Jay's letter to Washington disproves that. There was intended a distinction between eligibility by a certain kind of citizenship for the Presidency and eligibility for any other federal public office.