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Dead Attorney General declares “Obama native born”

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Citation:  10 U.S. Op. Atty. Gen. 328, 1862 WL 1393 (U.S.A.G.)
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United States Attorney General
CITIZENSHIP OF CHILDREN BORN IN THE UNITED STATES OF ALIEN PARENTS.
September 1, 1862.

*328 A child born in the United States of alien parents, who have never been naturalized, is, by the fact of birth a native-born citizen of the United States, entitled to all the rights and privileges of citizenship.
Hon. WM. H. SEWARD
Secretary of State.

SIR:
I have the honor to acknowledge the receipt of your letter of the 14th ult., in which you request my official opinion on the question, whether a child born in the United States, whose parents are aliens, who have never been naturalized, can, without naturalization, be considered a citizen of the United States.

In my letter to you of the 6th ult., concerning the case of Mrs. Preto and her daughter, I had occasion to express the opinion that the daughter of an unnaturalized Spanish father, and of a native-born American mother, born in this country, but afterwards removed with her parents to Spain, where her father died, was a native-born American citizen, fully entitled to the protection of her country.  The question now presented is of somewhat broader scope, but I do not think that the variant fact which it involves, viz:  that both the parents are unnaturalized aliens, at all distinguishes it, in principle, from the question then considered. I am quite clear in the opinion that children born in the United States of alien parents, who have never been naturalized, are native-born citizens of the United States, and, of course, do not require the formality of naturalization to entitle them to the rights and privileges of such citizenship.  I might sustain this opinion by a reference to the well settled principle of the common law of England on this subject; to the writings of many of the earlier and later commentators on our Constitution and laws; to the familiar practice and usage of the country in the exercise of the ordinary rights and duties of citizenship; to the liberal policy of our Government in extending and recognizing *329 these rights, and enforcing these duties; and, lastly, to the dicta and decisions of many of our national and State judicial tribunals.  But all this has been well done by Assistant Vice Chancellor Sandford, in the case of Lynch vs. Clarke, (1 Sand. Ch. Rep., 583,) and I forbear.  I refer to his opinion for a full and clear statement of the principle, and of the reasons and authorities in its support.

Of course you will understand that I do not affirm the rule in such exceptional cases as the birth of the children of foreign ambassadors and the like.

I am, sir, very respectfully, Your obedient servant,
EDWARD BATES.

10 U.S. Op. Atty. Gen. 328, 1862 WL 1393 (U.S.A.G.)

[Chester A. Arthur may rest in peace]

For more historical references on “natural born citizen” see The Great Mother of All Natural Born Citizen Quotation Pages.

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40 Responses to Dead Attorney General declares “Obama native born”

  1. avatar
    bogus info January 7, 2009 at 11:13 am #

    Dr. C,

    Where did you find this? Neat!

  2. avatar
    Dr. Conspiracy January 7, 2009 at 11:49 am #

    A friend sent this to me and this is just the tip of the iceberg. The What’s Your Evidence blog has the mother lode.

    Donofrio’s research was shallow and quickly overwhelmed. I thought his attacks on Chester A. Arthur were cowardly and disingenuous. One cannot read the Thomas C. Reeves’ biography of Arthur (which Donofrio says is definitive) and come away with the impression that Arthur is a scoundrel.

  3. avatar
    Tes January 7, 2009 at 12:03 pm #

    As FYI, a summary of Lynch v. Clarke, referenced in the above AG Opinion, is now available here . Interestingly, the court specifically contemplates a President with “alien” parents:

    “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,” … The only standard which then existed, of a natural born citizen, was the rule of the common law, and no different standard has been adopted since. Suppose a person should be elected President who was native born, but of alien parents, could there be any reasonable doubt that he was eligible under the constitution? I think not. The position would be decisive in his favor that by the [247] rule of the common law, in force when the constitution was adopted, he is a citizen. …”

  4. avatar
    Charles Bell September 20, 2009 at 12:26 am #

    A child born in the United States of alien parents, who have never been naturalized, is, by the fact of birth a native-born citizen of the United States

    Too bad the phrase in Article II of the Constitution for the eligibility for the Presidency “natural born citizen” was not used, as it might then prove relevant. As it is, it is only of interest to those wishing to justify giving citizenship to anchor babies.

  5. avatar
    Greg September 20, 2009 at 12:48 am #

    Too bad there’s no evidence of anyone making a distinction between a native-born and natural-born child. Maybe if you can find a founder imagining a situation where someone is born a citizen, but cannot become President. If they had intended to completely change the meaning of “natural born,” you’d think they would have said something about it.

  6. avatar
    Charles Bell September 20, 2009 at 11:44 am #

    Greg: Too bad there’s no evidence of anyone making a distinction between a native-born and natural-born child. Maybe if you can find a founder imagining a situation where someone is born a citizen, but cannot become President. If they had intended to completely change the meaning of “natural born,” you’d think they would have said something about it.

    The founders used “natural born” only once, for the qualification for the Presidency and never “native” born in any context. “Native born” only became part of the discussion in what to do with resident aliens and their offspring a hundred years later, and it is interesting that the phrase “natural born” was not used except in cases where it did specifically refer to offspring born of U.S. citizens, and that “native born” was reserved for those who were born on U.S. soil regardless of citizenship status of the parents. The introduction of “native born” did not obliterate or substitute for the original meaning of “natural born”

  7. avatar
    Dr. Conspiracy September 20, 2009 at 11:51 am #

    Charles Bell: The founders used “natural born” only once, for the qualification for the Presidency and never “native” born in any context….

    I fail to see a single citation of authority or logical argument in this assertion from Mr. Bell, which is not surprising since it is not true. John Marshall, founder and confidant of George Washington, speaking as chief justice of the United States Supreme Court said:

    A naturalized citizen is indeed made a citizen under an act of Congress…. He is distinguishable in nothing from a native citizen, except so far as the constitution makes the distinction.

    Osborn v. Bank of United States, 9 Wheat, 738, 827 (U.S., 1824).

    Chief Justice Marshall is clearly referring to the only distinction against naturalized citizens in the Constitution, that of being president. Marshall considered “native” born an equivalent phrase for the qualification of presidential eligibility.

  8. avatar
    ballantine September 20, 2009 at 12:33 pm #

    Can cite anyone saying they have different meanings. Appears there are quite a few who didn’t get your memo:

    “No man but a native, or who has resided fourteen years in America, can be chosen President.” Elliot’s Debates –DEBATES IN THE CONVENTION OF THE STATE OF NORTH CAROLINA, ON THE ADOPTION OF THE FEDERAL CONSTITUTION, pg 195-196 (statments of future Supreme Court Justice James Iredell, July 30, 1788).

    “That provision in the constitution which requires that the president shall be a native-born citizen (unless he were a citizen of the United States when the constitution was adopted) is a happy means of security against foreign influence,…” St. George Tucker, BLACKSTONE’S COMMENTARIES (1803)

    “As the President is required to be a native citizen of the United States…. Natives are all persons born within the jurisdiction and allegiance of the United States.” James Kent, COMMENTARIES ON AMERICAN LAW (1826)

    “The president must, by law, be a native born citizen; so that none need aspire to that high calling, but those who might emphatically be termed natural sons of America.” Joseph Dennie, John Elihu Hall, The Port Folio, pg. 199, (18)

    “By the provisions of the federal constitution, the President and Vice President of the United States are required to be native-born citizens; and the President is required to cause the laws of the Union to be executed.” Rep. Russel, Congressional Globe, 24th Cong., 1st Sess. pg 4256 (1836)

    ” It is not too much to say, that no one, but a native citizen, ought ordinarily to be intrusted with an office so vital [the presidency] to the safety and liberties of the people. But an exception was, from a deep sense of gratitude, made in favor of those distinguished men, who, though not natives, had, with such exalted patriotism, and such personal sacrifices, united their lives and fortunes with ours during the Revolution….” Joseph Story, A Familiar Exposition of the Constitution of the United States, pg. 167 (1842 ed.)

    “Citizenship” ….Citizens are either native born or naturalized. Native citizens may fill any office; naturalized citizens may be elected or appointed to any office under the constitution of the United States, except the office of president and vice-president.” Bouvier Law Dictionary (1843)

    “No person can be elected president who is less than 35 years of age, who is not a native born citizen of the United States, or was not a citizen at the time of the adoption of the constitution of the United Stales…” John Ramsay McCulloch, Daniel Haskel, M’Culloch’s Universal Gazetteer: A Dictionary, Geographical, Statistical, and Historical, of the Various Countries, Places, and Principal Natural Objects in the World, pg. 994 (1844)

  9. avatar
    ballantine September 20, 2009 at 12:35 pm #

    Here are some more:

    “Afterwards however, in Convention, the words “natural born citizen” were stricken out, and the word ” native” was substituted, as the original words might have left an uncertainty as to the meaning of the Convention, for ” natural born citizen” might have had some reference to the manner of birth, while the word ” native” would refer more particularlylo the place of birth. ” Sherman Croswell, R. Sutton, Debates and Proceedings in the New-York State Convention – New York (State) Pg. 148 (1846)

    “No person can be President or Vice-president who is not a native-born citizen, of the age of thirty-five years, ….” Richard Swainson Fisher, The progress of the United States of America: from the earliest periods. Geographical, statistical, and historical, pg. 9 (1854)

    “The executive power is vested in a president and vice-president; each chosen for a term four years each to be a native born citizen…..Emma Willard, Abridged history of the United States, or, Republic of America, pg. 254 (1856)

    ” They declared by that solemn compact, that the President of the United States should be a native born citizen, … Samuel Clagett Busey, Immigration: Its Evils and Consequences pg. 10 (1856) pg. 10

    “Your committee is of opinion that no one can be eligible to discharge, for the time being, the functions of President, unless he be thirty-five years old, and a native born citizen. A Speaker of the House, or a President pro tempore, might not have these qualifications —and if so, he could not act as President in compliance with the Constitution.” Sen. Butler, 8/05/1856, Reports of Committees: 30th Congress, 1st Session – 48th Congress, 2nd Session, pg. 4., By United States Congress. Senate, Congress, Published 1856

    “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 tho United States at the time the Constitution was adopted, or he must be a native-born citizan.” 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)

    “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, Civil Rights Acts Debates, reported in Cong. Globe, 1st Sess. 39th Congress, pt. 1, pg. 387 (1866)

    “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 Consitutuion, 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. (2 Kent’s Com. 3d ed. l ; Calvin’s Case, 7 Coke, 1 ; 1 Black. Com. 366; Lynch v. Clark, 1 Sandf. Ch. Rep. 139.)” Sen. Trumbull (author or the Civil Rights Act of 1866), April 11, 1871, Cong. Globe. 1st Session, 42nd Congress, pt. 1, pg. 575 (1872)

    “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)

    “One of the qualifications of President of the United States is that he must be a native born citizen, and incontestibly were it not for this provision a naturalized citizen might, if elected, hold that high position.” White v. Clements, Georgia Supreme Court, 1870, Reports of Cases in Law and Equity, Argued and Determined in the Supreme Court of the State of Georgia, in the Year , pg. 256-57 (1870)

    “The qualifications for president and vice-president by this clause are made the same. They must, therefore, be native born citizens of the United States, or citizens of the United States at the time of the adoption of the federal constitution, and been fourteen years citizens of the United States, and thirty-five years old.” John King, A Commentary on the Law and True Construction of the Federal Constitution, pg. 206, (1871)

    “These were natives, or natural-born citizens, as distinguished from aliens or foreigners.” Minor v. Happersett, 21 Wall. (U. S.) 162 (1874).

    “The President was required to be thirty-five years of age, and native born, or a citizen at the adoption of the Constitution.” Richard Hildreth, The History of the United States of America, pg. 521 (1880)

    “The President and the Vice-President, (and hence their Electors also), are required, however, to be native-born citizens of the United States. Here we have a clear inclusion of all the States as to their native-born, and a clear Delusion of all foreign-born citizens.” Meeds Tuthill, The civil polity of the United States considered in its theory and practice, pg. 83 (1883)

  10. avatar
    Charles Bell September 20, 2009 at 4:33 pm #

    Dr. Conspiracy: Charles Bell: The founders used “natural born” only once, for the qualification for the Presidency and never “native” born in any context….I fail to see a single citation of authority or logical argument in this assertion from Mr. Bell,

    Try actually reading the Constitution and get back to me on that.

  11. avatar
    Dr. Conspiracy September 20, 2009 at 4:59 pm #

    Charles Bell: Try actually reading the Constitution and get back to me on that.

    Try reading the rest of what the founders wrote to understand what they meant when they used a term that was not defined in the Constitution itself.

  12. avatar
    Charles Bell September 20, 2009 at 5:50 pm #

    Dr. Conspiracy: Charles Bell: Try actually reading the Constitution and get back to me on that.Try reading the rest of what the founders wrote to understand what they meant when they used a term that was not defined in the Constitution itself.

    No, if you read what I wrote, that the words “natural born citizen” is used only once for a specific purpose in the eligibilty for the Presidency, and the words “citizen” or just “person” is used everywhere else — and you actually read every word of the Constitution, as I have done — you will verify the truth of my statement. Why would one have to “cite an authority” for that purpose? You are claiming that the founding fathers would have expected a civil war and a 14th amendment to clarify what they meant by using that specific phrase, whereas I have elsewhere (mostly in the posts that have been deleted) pointed to authorities as the the original 18th century meaning, though that phrase may or may not be conflated later with the phrase “native citizen”.

  13. avatar
    Dr. Conspiracy September 20, 2009 at 7:53 pm #

    Charles Bell: No, if you read what I wrote, that the words “natural born citizen” is used only once for a specific purpose in the eligibilty for the Presidency, and the words “citizen” or just “person” is used everywhere else — and you actually read every word of the Constitution, as I have done — you will verify the truth of my statement.

    The Constitution, and the courts have repeated this, describe two kinds of citizens, natural born and naturalized. In other places the Constitution speaks collectively of citizen inclusive of both types. However, since you have read the Constitution you know that the Constitution doesn’t define the term natural born Citizen. It is necessary to look elsewhere. The courts have said (and specifically the Supreme Court in the case of Smith v Alabama), that the constitution is written in the language of English common law, so that is where one must to learn what natural born citizen means.

    What you have been shown, but refuse to acknowledge, is that the Framers and other writers use the terms native born citizen and natural born citizen interchangeably, and specifically in the context of who may be president.

    Charles Bell: I have elsewhere (mostly in the posts that have been deleted) pointed to authorities as the the original 18th century meaning,

    I didn’t delete your posts, and you couldn’t have made such citations because they don’t exist. The courts don’t share your curious reinterpretation of history.

    We start from the premise that the rights of citizenship of the native born and of the naturalized person are of the same dignity and are coextensive. The only difference drawn by the Constitution is that only the ‘natural born’ citizen is eligible to be President. Art. II, s 1.

    Schneider v Rusk

  14. avatar
    Charles Bell September 20, 2009 at 9:28 pm #

    Dr. Conspiracy: Charles Bell: No, if you read what I wrote, that the words “natural born citizen” is used only once for a specific purpose in the eligibilty for the Presidency, and the words “citizen” or just “person” is used everywhere else — and if you actually read every word of the Constitution, as I have done — you will verify the truth of my statement. but refuse to acknowledge, is that the Framers and other writers use the terms native born citizen and natural born citizen interchangeably, and specifically in the context of who may be president.Charles Bell: I have elsewhere (mostly in the posts that have been deleted) pointed to authorities as the the original 18th century meaning,I didn’t delete your posts, and you couldn’t have made such citations because they don’t exist. The courts don’t share your curious reinterpretation of history.

    What I refuse to acknowledge is that the Constitution ever used the words other than “natural born citizen” with respect to the qualification for the Presidency and in any contemporaneous documentation concerning the choice of words wherein “native citizen” might have been used, it was then used synonymously with “natural born”, but not as we think of “native born” today; The usage a hundred years later and the meaning of “native born”, especially as it related to the 14th admendment (though again it was not used there), was different as it continues to be today. What is important is to determine the meaning of the words as they were used then and not as they might come to mean sometime in the future. The 18th century meaning of natural born clearly included jus sanguinis and jus soli and the Vattel reference just prior to the Founding rather than some reference 150 years later in in order.

    All but one of my posts in “An important article about natural born citizen” is missing. The bulk of my argument along these lines used to be in there, as that article supports my position, not yours.

  15. avatar
    ballantine September 20, 2009 at 9:47 pm #

    “The usage a hundred years later and the meaning of “native born”, especially as it related to the 14th admendment (though again it was not used there), was different as it continues to be today. What is important is to determine the meaning of the words as they were used then and not as they might come to mean sometime in the future. The 18th century meaning of natural born clearly included jus sanguinis and jus soli and the Vattel reference just prior to the Founding rather than some reference 150 years later in in order.”

    This is where someone who wanted to win a court case or an argument on the internet would cite some authority. Please provide a cite to anyone in the founding generation defining “natural born” by Vattel’s definition.

  16. avatar
    Dr. Conspiracy September 21, 2009 at 12:14 am #

    Charles Bell asserts here that both “native born” and “natural born” had meanings when the Constitution was written that they don’t have today. However, he cites no American authority that ever said such a thing. He does cite the Swiss philosopher de Vattel, not realizing that de Vattel didn’t define natural born citizen, since the English translation available at the time the Constitution was written didn’t contain the phrase (although a translation 10 years later added the words).

    In short you got nothing. Zero. Zip. Nada.

    And I repeat: none of your comments have been deleted. They are:

    here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here, here and here.

    Your first comment, I repeat here, marked up to show the assertions and non sequiturs:

    The term “natural born” citizen has a long history in British common law. [How long?]In fact, a law passed in 1677 law says that “natural born” citizens include people born overseas to British citizens. [Citation please.] This usage was undoubtedly known to John Jay, who had children born overseas while he was serving as a diplomat. [By what authority do you claim this? Jay served in France and Spain, not England. Why should he be concerned with an English law passed 100 years before?] (39) It also appears to have been employed by the members of the first Congress, who included many of the people who had participated in the Constitutional Convention. [Any fool can see that the phrase “natural born citizen” is in the Constitution, but the Constitution doesn’t define the term.] To be specific, The Naturalization Act of 1790, which was passed by this Congress, declared “And the children of citizens of the United States, that may be born beyond the sea, or out of the limits of the United States, shall be considered as natural born citizens; Provided, that the right of citizenship shall not descend to persons whose fathers have never been resident of the United States.”(40) [I assume you misread the last phrase. The proviso only applies to those who were born “beyond the seas”]

    This says that though McCain was not born in the U.S. but born to two U.S. citizens stationed in a foreign land for miltary [sic] purposes, he is a natural-born citizen, [Actually it does not. The Naturalization Act of 1790 was repealed in its entirety in 1795.] but Obama, assuming he was born in the U.S., who was not born to two U.S. citizens is not. [The errors are manifold. First the 1790 Act applied to those born beyond the seas. Obama was born in the United States. Second the 1790 Act did not require two parents per citizen, but only one father (per citizen). Finally the 1790 Act was repealed in its entirety in 1795.]

    In summary, the delegates at the Constitutional Convention were deeply concerned about foreign influence on the national government, and in particular on the President. [At least enough to require that the President be born a citizen and live in the United States for 14 years]

    Yep! And that just might include Presidential paternal ties to a foreign government.[Assertion with no authority. No Framer ever suggested, or even hinted that non-citizen parents excluded someone from the presidency.]

    Your “argument” is full of holes.

  17. avatar
    Charles Bell September 22, 2009 at 8:22 pm #

    ballantine: Please provide a cite to anyone in the founding generation defining “natural born” by Vattel’s definition.

    Just for laughs, cite anyone at the time that the meaning of “natural born” included the possibilty of parents of said person owing allegiance(s) to foreign power(s) or that complete, full and unaltered reference to English common law was sufficient for the new republic.

    note: “The common law of England is not the common law of these States.” -George
    Mason

  18. avatar
    nBc September 22, 2009 at 8:51 pm #

    note: “The common law of England is not the common law of these States.” -George
    Mason

    Correct, but again misleading. In order to understand the meaning of the term ‘Natural Born’ the Court, per Supreme Court suggestion, looked at the meaning of the term as found in common law practices of those days and found, unsurprisingly, that they mirrored to a large extent the English Common Law practices. Nor surprising, because the colonies were quite familiar with such Common Law.

    Me thinks you are arguing a strawman, possibly because the real argument is unassailable?
    Thus the Court found that natural born referred to ‘born on US soil’ or the ‘jus soli’ interpretation.
    You are perhaps misunderstand the term “owing allegiance to”

  19. avatar
    nBc September 22, 2009 at 8:59 pm #

    1808

    It has been repeatedly said that the constitution of the United States contains many words and phrases which can only be explained or understood by having recourse to the common law of England and that to obtain a correct and clear idea of its meaning it is proper to refer to the books of the common law.

  20. avatar
    nBc September 22, 2009 at 9:07 pm #

    Interesting note:

    How differently did the Congress of 1774 think They unanimously resolved That the respective colonies are entitled to the common law of England and more especially to the great and inestimable privilege of being tried by their peers of the vicinage according to the course of that law They further resolved that they were entitled to the benefit of such of the English statutes as existed at the time of their colonization and which they have by experience respectively found to be applicable to their several and local circumstances They also resolved that their ancestors at the time of their emigration were entitled not to the rights of men of expatriated men but to all the rights liberties and immunities of free and natural born subjects within the realm of England Journal of Congress Declaration of Rights of the Colonies Oct 14 1774 p 27 to 31

    And Jefferson

    This narrow notion was a favorite in the first moment of rallying to our rights against Great Britain But it was that of men who felt their rights before they had thought of their explanation The truth is that we brought with us the rights of men of expatriated men On our arrival here the question would at once arise by what law will we govern ourselves The resolution seems to have been by that system with which we are familiar to be altered by ourselves occasionally and adapted to our new situation 4 Jefferson’s Corresp 178

  21. avatar
    Charles Bell September 22, 2009 at 9:42 pm #

    nBc: Correct, but again misleading. In order to understand the meaning of the term Natural Born’ the Court, per Supreme Court suggestion, looked at the meaning of the term as found in common law practices of those days and found, unsurprisingly, that they mirrored to a large extent the English Common Law practices. Nor surprising, because the colonies were quite familiar with such Common Law.Me thinks you are arguing a strawman, possibly because the real argument is unassailable?Thus the Court found that natural born referred to born on US soil’ or the jus soli’ interpretation.You are perhaps misunderstand the term “owing allegiance to”

    It is a rule of thumb that the more a majority opinion has to reach further and further away from word and intent of the Constitution and indeed that of the law under review, the weaker the argument is. The Wong majority decision is like that: using English common law as a means of obfuscating the “jurisdiction” phrase rather than clarifying it. Complete reliance on English common law and obliterating the meaning of the “jurisdiction” phrase (as intended by Sens. Bingham and Howard, for example) has two outcomes: (1) the possibility of a native born citizen, a citizen by being born in the country without hindrance of parental allegiance to a foreign power, may be a citizen by birthright owing allegiances to two powers at the same time; and (2) indissoluble citizenship. Neither of these were intended by the Founders. The entirety of the supporting commentary in defense of Obama’s illicit (or whatever word is appropriate) hold on the Presidency is to use Wong limit on the “Jurisdiction” phrase in the 14th amendment to that of very minor importance to include visiting diplomats and consuls. Well, if the children of such diplomats, though born on U.S. soil, are not native born because their parents owe allegiance to foreign powers, why is it that that cannot be extended to include any resident alien? especially as these children may be entitled until their majority to dual citizenship? The operatives (in contrast to common law) is lacking any legal connection to a foreign country and the immossibity of dual citizenship. It is possible for a “native citizen” (Wong) to have dual citizenship, if only seen by the other nation that way or even by several nations, but it is impossible for a “natural born citizen” [in broadest interpration of the “juridiction” phrase) to have such an opportunity.

  22. avatar
    Benji Franklin September 22, 2009 at 10:07 pm #

    Dear Charles,
    That’s easy. A lawyer friend of George Washington and Ben Franklin’s, wrote “A View of the Constitution” used as a Constitutional Law textbook at Harvard and WESTPOINT.
    http://www.constitution.org/wr/rawle_09.htm
    In it in Chapter 9, he writes in pertinent part:

    ….It cannot escape notice, that no definition of the nature and rights of citizens appears in the Constitution. The descriptive term is used, with a plain indication that its meaning is understood by all, and this indeed is the general character of the whole instrument. Except in one instance, it gives no definitions, but it acts in all its parts, on qualifies and relations supposed to be already known. Thus it declares, that 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 …. 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…. Under our Constitution the question is settled by its express language, and when we are informed that, excepting those who were citizens, (however the capacity was acquired,) at the time the Constitution was adopted, no person is eligible to the office of president unless he is a natural born citizen, the principle that the place of birth creates the relative quality is established as to us.”

    An aging James Madison spoke highly of Rawles before he died. You may recall Washington made Rawles a U.S. Attorney, and offered his a Federal Judgeship, and the opportunity to be our country’s first Attorney General. I’ll bet you’re not impressed.

    Benji Franklin

  23. avatar
    Dr. Conspiracy September 22, 2009 at 10:10 pm #

    Charles Bell:

    The Wong majority decision is like that: using English common law as a means of obfuscating the “jurisdiction” phrase rather than clarifying it.

    I find nothing in your comment specific enough to indicate that you’ve even read the Wong decision. It seems to me that your argument is simply an appeal to the xenophobic prejudices of the reader. It certainly has no basis in law.

    The decision in Wong cites Chief Justice John Marshall — The Exchange (1812), 7 Cranch 116 — on jurisdiction saying:

    The jurisdiction of the nation within its own territory is [p684] necessarily exclusive and absolute. It is susceptible of no limitation not imposed by itself. Any restriction upon it, deriving validity from an external source, would imply a diminution of its sovereignty to the extent of the restriction, and an investment of that sovereignty to the same extent in that power which could impose such restriction. All exceptions, therefore, to the full and complete power of a nation within its own territories must be traced up to the consent of the nation itself. They can flow from no other legitimate source. This consent may be either express or implied. In the latter case, it is less determinate, exposed more to the uncertainties of construction; but, if understood, not less obligatory.

  24. avatar
    Dr. Conspiracy September 22, 2009 at 10:20 pm #

    Yes, colonial Americans believed that the English common law was their birthright. Thanks for the citations, one more example that the”dualists” are weaving a fictional version of American history.

  25. avatar
    Dr. Conspiracy September 22, 2009 at 10:35 pm #

    Charles Bell: ““The common law of England is not the common law of these States.” -George Mason”

    Ah, I see Mr. Bell has been reading P. A. Madison.

    Does Mr. Bell know where this quotation came from? Has he read the context? If all he’s done is copy and paste from P. A. Madison, then the answer to both questions is “no”. But I will tell the reader where it came from. It comes from it comes from the debate in the Virginia Ratifying Convention in June 1788.

    George Mason is making a case for states rights. However, all the states had citizenship laws which made citizens without requirements on parents. The American Revolution was fought, in part, because the King and Parliament restricted the desire of the colonies to attract and quickly naturalize foreigners (see from the Declaration of Independence following).

    He has endeavoured to prevent the population of these States; for that purpose obstructing the Laws for Naturalization of Foreigners; refusing to pass others to encourage their migrations hither, and raising the conditions of new Appropriations of Lands.

  26. avatar
    Mario Apuzzo September 23, 2009 at 12:36 am #

    Dr. Conspiracy & Co.

    The English common law did not provide the definition of “natural born Citizen.” The English common law had during the colonial period and continued to have after the Founding a useful purpose in the several States (defining rights concerning inheritance, contracts, torts, property, and more) but a very limited role in constituting the new nation and its national government and no role in defining national citizenship for the generations to be born after the Constitution was adopted. Given the revolution, the needs of the new representative Republic, and historical developments, the Founders simply did not use English common law to define what an Article II “natural born Citizen” is. That law, born of feudalism and tied to a hereditary monarchy, simply did not provide the Founders with the formula that they needed for defining the eligibility requirements for the popularly elected President and Commander in Chief of the new nation.

    The 18th century meaning of “natural born Citizen” consisted of jus sanguinis and jus soli joined together in the child at the time of birth or what I call Unity of Citizenship, this being the Vattelian definition contained in The Law of Nations, which the Founding generation widely read and accepted. This treatise covered a wide range of subjects involving relations among nations and citizenship. It described citizens as starting as members of society (citizens) and then evolving into future generations (the children of the citizens or the “natives or indigenes) who were given the duty to perpetuate and protect the new society. Since the Founders found themselves in the exact situation described by Vattel concerning the formation of a new society (needing new members of that society or citizens) and the need for future generations (the natives or indigenes or what they called the “natural born Citizens”) to perpetuate and protect that society, and since the Founders would have viewed citizenship has having a great impact between nations, the Founders would also have relied on this treatise for their definition of a “natural born Citizen.” With the new and young nation just starting to make its way in the international arena and the Founders wanting to avoid war and desiring neutrality among nations, this definition of a “natural born Citizen” would have served them best for their purposes and not the English common law definition of a “natural born subject” which made English perpetual subjects out of persons born citizens of other nations without the consent of either that foreign nation or that nation’s citizens.

    No matter how hard you try, Wong and Lynch simply do not and cannot retroactively change our constitutional history.

    Mario Apuzzo, Esq.

  27. avatar
    NBC September 23, 2009 at 1:08 am #

    The English common law did not provide the definition of “natural born Citizen.”

    It contains the term natural born subject, which is an equivalent phrase.
    I understand your emotional investment in Vattel, even though his position was found to be illogical in that it would not allow individual states to chose their own laws as to who is a citizen and who is not. Such a position seems so obviously at odds with what the Framers envisioned that arguing the Vattel position seems almost equivalent to denying the American Dream, and its foundation, the US Constitution. That Congress was concerned about who could be President and wanted to avoid naturalized citizens from running for this office, hardly is an argument that the US rejected Common Law. In fact, history, legal precedent all point to the simple fact that the term natural born has to be interpreted in light of the US’s common law history in English common law, in order to understand the meaning of the term.

    In the end, Mario’s position become so untenable that he has for all practical purposes to argue that either children born to foreigners in the US are not US citizens or that Wong Kim Ark is somehow bad law, neither one is well supported by the facts.

    Remember that we have the facts on our side, you at best have empty speculation as to what you believe the founders had in mind.

  28. avatar
    NBC September 23, 2009 at 1:11 am #

    And let’s not forget that the requirement born to two US citizens neither follows from Vattel nor from those who used Vattel to argue for jus sanguini citizenship. A single parent was sufficient, although in the early days, the father was obviously preferred.
    Under our present Constitution, even under the most strict Vattel interpretation, it would seem that President Obama would still be a naturel ou indigenes.

    Either way, Common Law or Law of Nations, your arguments fail.

  29. avatar
    NBC September 23, 2009 at 1:13 am #

    No matter how hard you try, Wong and Lynch simply do not and cannot retroactively change our constitutional history.

    Add to that the 14th amendment and you may get the picture. And no, it did not retroactively change our Constitutional history, it merely confirmed it.

  30. avatar
    Greg September 23, 2009 at 1:51 am #

    You know what you’re missing in that monologue, Mario? Citations. It’s all just hollow words without a single touchpoint with history or law.

    In short, long-winded BS.

  31. avatar
    Mario Apuzzo September 23, 2009 at 1:57 am #

    Neither Wong nor the Fourteenth Amendment touched Article II and its “natural born Citizen” clause. Rather, they only confirmed what a “citizen” is, not a “natural born Citizen.” Wong acknowledged Minor’s definition of a “natural born citizen,” i.e., born in the country to parents who were citizens and did not disagree with it. Wong also acknowledged Minor’s statement that there were doubts regarding whether a child born in the country to non-citizen parents was a “citizen.” Clearly, Justice Gray could readily see that Wong did not meet the Minor definition of a “natural born Citizen.” But Justice Gray saw no need to have to declare Wong a “natural born Citizen” because Wong only needed to be a “citizen of the United States” under the Fourteenth Amendment and he also knew that Wong did not meet the “natural born Citizen” definition. Without disturbing anything Minor said, Wong then resolved Minor’s doubt and declared Wong, who was born in the country to alien parents, a “citizen of the United States.” Hence, as can be clearly seen, Wong neither affected nor defined what a “natural born Citizen” is. It only defined what a Fourteenth Amendment “citizen of the United States” is, i.e., born in the United States and subject to the jurisdiction thereof, regardless of the citizenship of the parents.

    No matter how much you twist, squirm, spin, and name call, you cannot honestly escape this powerful result.

  32. avatar
    Greg September 23, 2009 at 2:12 am #

    He didn’t disagree with Minor’s definition because it was not an exclusive definition. He acknowledged the doubts because Minor didn’t determine the issue. He uses the fact that there were doubts to prove that Slaughterhouse (decided 2 years before Minor) couldn’t have decided the issue!

    Of course, I note that you don’t ever dwell on the fact that Minor and Wong explicitly do not make a distinction between native and natural. Here’s part of Minor quoted in Wong:

    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.

    Children of two citizens became:

    Natives or natural-born citizens

    How can that be, Mario? How can the children of two citizens become native citizens? Isn’t that code for ineligible for the presidency?

    Is there some further distinction contained within natural-born citizen that you’ll reveal to us at a later date, like the unfolding of a Dan Brown novel plotline?

  33. avatar
    Mario Apuzzo September 23, 2009 at 2:41 am #

    Greg,

    You are all mixed up. I can understand that because you have got to really pay attention to this stuff. Do you not know that “natives” and “natural born citizens” meant the same thing to Vattel, during the Founding, and in the many years following? Did you not read Vattel, the constitutional debates, and The Venus? Even both Minor and Wong confirm this in your very quote.

    “Native-born” took on the meaning of being simply born on U.S. soil in later years. But that is not relevant because we only want to know what the Founders knew and intended during their time.

  34. avatar
    NBC September 23, 2009 at 4:53 am #

    “Native-born” took on the meaning of being simply born on U.S. soil in later years. But that is not relevant because we only want to know what the Founders knew and intended during their time.

    They probably knew the common sense interpretation of native as refering to soil. Of course, Vattel did not use native, but rather naturel or indigenes. But that’s just details isn;t it, just like a ban which really wasn’t a ban?

  35. avatar
    NBC September 23, 2009 at 4:54 am #

    Again, well argued my friend. Seems that Mario has some homework to do.

  36. avatar
    Greg September 23, 2009 at 6:26 am #

    So, native and natural born meant the exact same thing until some time after Minor v. Happersett was decided in 1877?

    Just so we’re 100% clear here, at the founding, there were native/natural-born citizens and naturalized citizens, right? The two categories combined were the only types of citizen recognized. The founders did not conceive of any type of citizen that could be born here but not eligible for the Presidency, right?

    When did the meaning of native break off from natural born?

    It seems like you want the meaning of native born to take on a different meaning than natural born some time between page 680 of Wong and the end of the decision. When Wong quotes Minor on page 680, native and natural meant the same thing, but by the end of the decision, even though the 14th Amendment is merely declaratory of the Founders understanding of the Constitution, this new meaning of native born is attached and Wong creates a new type of citizen.

    Is that how it worked?

  37. avatar
    Charles Bell September 23, 2009 at 6:42 am #

    Surely relevant for Obama if one likes to take the passage out of context, as surely Obama and Harvard Prof. Tribe would do: federalzing the process of citizenship and taking the responsibility away from the states which had been doing it individually, except with respect to British citizenship. Several states had somewhat conflicting processes of immigration and processing for citizenship of that state. Some had the provision that no man was a citizen of a state, irrespective of automatic British citzenship, until such time as he swore an oath of allegiance to the state even though he may have born in that state. In this context, the word “alien” in the citation would mean alien as from one state to another, each and every state having been and remaining in perpetutity sovereign.

    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 was preceded by word and intent:
    In the second section of the fourth article it is provided that the citizens of each state, shall be entitled to all privileges and immunities of citizens in the several states, and the same rule had been ambiguously laid down in the articles of confederation. If this clause is retained, and its utility and propriety cannot be questioned, the consequence would be, that if each state retained the power of naturalization, it might impose on all the other states, such citizens as it might think proper. In one state, residence for a short time, with a slight declaration of allegiance, as was the case under the former constitution of Pennsylvania, might confer the rights of citizenship: in another, qualifications of greater importance night be required: an alien, desirous of eluding the latter, might by complying with the requisites of the former, become a citizen of a state in opposition to its own regulations, and thus in fact, the laws of one state become paramount to that of another. The 14th amendment was intended to clarify the rights of individuals born in each of the states, especially when there be none for them in those states, as in the rights of negroes freed from slavery, to attain to rights as U.S. citizens by the fact of having been born within the U.S. as well as in the state without any presumed inclusion of unnaturalized aliens, a an exclusive federal right in any case, inasmuch as all freed negroes were born to parents who were also born in the U.S. The Dred Scott decision (unconstitutionally) denied this facet of the Constitution that had been true since its inception and the cited section and uncited antecedent section quoted in the Rawle reference are only saying that.

  38. avatar
    Charles Bell September 23, 2009 at 6:58 am #

    Dr. Conspiracy: Charles Bell: I find nothing in your comment specific enough to indicate that you’ve even read the Wong decision.

    Justice Gray spends a couple of paragraphs on the actual wording, origin and intent of the the 14th Amendment and current and past U.S. application and goes on endlessly in English Common law. Anyone who would say otherwise obviously has not read the opinion. The dissenting opinion, in contrast, does try to focus on the wording and origin, bringing up Vattel, for example, and does not try to re-introduce English common law into an area where it was certainly thrown out.

  39. avatar
    Dr. Conspiracy September 23, 2009 at 7:06 am #

    I’m not sure the relevance of this comment. State constitutions and laws also admitted natural born citizens birth in the state.

  40. avatar
    Greg September 23, 2009 at 8:45 pm #

    I guess if by “a couple of paragraphs,” you mean pages 674-704, then, sure.