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MINOR V. HAPPERSETT, 88 U. S. 162 (1874)

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A visitor to Obama Conspiracy Theories left this comment:

The Supreme Court clearly established who was a “natural born citizen” in the case Minor v. Happersett (1874). Justice Gray thoroughly discussed the definition of “natural born citizen” in his review of the Minor case. The Supreme Court in Minor adopted the Laws of Nations definition of “natural born citizen” as being a person born in the United States to “citizen parents” –” this definition does not include Mr. Barack H. Obama, Jr., because his father was not a United States Citizen.

It seems to me an untenable position to say that Minor v. Happersett “clearly established who was a ‘natural born citizen’” when the case itself states “for the purposes of this case, it is not necessary to solve these doubts” (”these doubts” referring to citizenship of those born in the United States of alien parents). It would be United States v. Wong Kim Ark that would definitively answer this question in 1898.

What the case was about

Mrs. Virginia Minor was a native-born American citizen from Missouri who had the audacity to try to register to vote. The registrar, one Happersett, refused because Minor was not “male”. Minor sued in local court and the Missouri State Supreme Court, but she lost. She appealed to the United States Supreme Court claiming that she was a citizen of the United States under the Fourteenth Amendment and was entitled to vote. The Supreme Court agreed that she was a natural born citizen of the United States, but that didn’t make her eligible to vote.

So incidentally to the main question in the case, the Supreme Court did discuss citizenship.

Two Kinds of Citizen

The section from Minor that is alluded to by the opening quotation is one in which the court is describing the state of citizenship in the United States prior to the Fourteenth Amendment (something that is overlooked by those who use the citation). Here is what the court said:

To determine, then, who were citizens of the United States before the adoption of the amendment, it is necessary to ascertain what persons originally associated themselves together to form the nation and what were afterwards admitted to membership…

Additions might always be made to the citizenship of the United States in two ways: first, by birth, and second, by naturalization. This is apparent from the Constitution itself, for it provides  that

“No person except a natural-born citizen or a citizen of the United States at the time of the adoption of the Constitution shall be eligible to the office of President, ”

and that Congress shall have power “to establish a uniform rule of naturalization.” Thus, new citizens may be born or they may be created by naturalization.

“natives or natural-born citizens, as distinguished from aliens or foreigners”

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. 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. For the purposes of this case, it is not necessary to solve these doubts. It is sufficient for everything we have now to consider that all children born of citizen parents within the jurisdiction are themselves citizens. The words “all children” are certainly as comprehensive, when used in this connection, as “all persons,” and if females are included in the last, they must be in the first. That they are included in the last is not denied. In fact, the whole argument of the plaintiffs proceeds upon that idea.

Let’s take a minute to digest that lengthy citation. The most obvious point is that there are two and exactly two kinds of citizens discussed here: ” natural born” and “naturalized”. Take a minute and reread the citation and verify this for yourself. You will see no distinction made between those who are born a citizen and those who are a natural born citizen. Note: “all children born of citizen parents within the jurisdiction are themselves citizens” — not “natural born citizens” but “citizens” but natural born implied because they are born citizens.

The issue addressed in this section is not who is a natural born citizen, but who is a citizen. So when the court talks about “some authorities go further and include as citizens children born within the jurisdiction without reference to the citizenship of their parents” they are saying that there are “doubts” as to whether the children of aliens born under the jurisdiction of the United States are citizens at all. This is the point glossed over when trying to use this case to create a third type of citizen (the non-natural born, non-naturalized citizen).

Let me quote from an earlier portion of the decision:

Whoever, then, was one of the people of either of these states when the Constitution of the United States was adopted became ipso facto a citizen — a member of the nation created by its adoption. He was one of the persons associating together to form the nation, and was consequently one of its original citizens. As to this there has never been a doubt. Disputes have arisen as to whether or not certain persons or certain classes of persons were part of the people at the time, but never as to their citizenship if they were.

What can be seen from this quotation is the distinction between the concept of who is in a class and whether members of that class are citizens. In relating Minor to the question of Obama natural born citizenship Minor informs us that those born citizens are natural born citizens, but Minor does not inform us who are born citizens. Focus on this language from the Court:

These were natives or natural-born citizens, as distinguished from aliens or foreigners.

The distinction is not between “plain citizens” and “natural born citizens” but between “natural-born citizens” and aliens (e.g. not citizens).

All of the preceding discussion is related to the situation before passage of the Fourteenth Amendment (“To determine, then, who were citizens of the United States before the adoption of the amendment”). The reason for this digression to the time before the Fourteenth Amendment was the question of whether Minor was a citizen apart from the Fourteenth Amendment. The court said that she was: “she has always been a citizen from her birth and entitled to all the privileges and immunities of citizenship.” She was such a citizen because her parents were citizens and she was born under the jurisdiction of the United States, and the pesky argument about those not born of citizen parents before the Fourteenth Amendment “it is not necessary to solve”.

I don’t know if this question was ever solved for those born before the passage of the Fourteenth Amendment, but it is not necessary for us to solve either because there are no more persons living born before the Fourteenth Amendment, and because it was solved for those born after by the Supreme Court in United States v. Wonk Kim Ark. Wong, born in the United States of alien parents, was declared a citizen. It is hardly reasonable to quote the dicta in Minor as casting doubts while refusing to recognize the dicta in Wong which resolved them.

So in summary:

  • Minor tells us that there are two kinds of citizens: native or natural born and naturalized
  • There was some question prior to the passage of the Fourteenth Amendment whether the children of aliens born under the jurisdiction of the United States were citizens.
  • Minor does not resolve this question
  • However, it is clear that those born citizens are natural born citizens (since there are only two types, and those born citizens cannot be naturalized).
  • United States v. Wong Kim Ark clarifies who is under the jurisdiction of the United States and thereby who are citizens at birth.

Update:

Since the original publication of this article in March of 2009, Superior Court Judge Richard E. Gordon in Arizona wrote in his order in the case of Allen v. Obama:

…this precedent fully supports that President Obama is a natural born citizen under the Constitution to hold the office of President. See United States v. Wong Kim Ark, 169 U.S. 649, 702-03 (1898) addressing U. S. Const. amend. XIV); Ankeny v. Governor of the State of Indiana 916 N.E.2d 678, 684-88 (Ind. App. 2010) (addressing the precise issue). Contrary to Plaintiff’s assertion, Minor v. Happersett, 99 U.S. 162 (1874), does not hold otherwise.

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29 Responses to MINOR V. HAPPERSETT, 88 U. S. 162 (1874)

  1. avatar
    Dr. Conspiracy March 6, 2009 at 10:53 pm #

    I’m not a lawyer, and this isn’t a legal brief. If any of you lawyers find a flaw in the reasoning or interpretation of the case, please weigh in.

  2. avatar
    Dr. Conspiracy March 6, 2009 at 11:05 pm #

    The writing of this article:

    This case has always intrigued me because it is the only judicial source I know of that suggests that there is any question as to whether a person born under the jurisdiction of the United States was a citizen before the Fourteenth Amendment (excepting slaves, Indians, ambassador’s children…).

    Just 30 years before, the Supreme Court of New York in Lynch v. Clarke stated quite emphatically that the children of such aliens were natural born citizens AND eligible to be president!

    I guess I will never know why the Minor court said there was this question that they didn’t need to solve.

  3. avatar
    Expelliarmus March 7, 2009 at 3:07 am #

    There’s another error in the quote at the top. Justice Gray wrote the opinion in Wong Kim Ark The opinion in Minor v. Happersett was written by the Chief Justice at the time, Morrison Waite. Justice Horace Gray did not become a Supreme Court Justice until 1882; see: http://en.wikipedia.org/wiki/List_of_Justices_of_the_Supreme_Court_of_the_United_States

  4. avatar
    Dr. Conspiracy March 7, 2009 at 8:41 am #

    I think what the writer intended (unsuccessfully) to say was that Chief Justice Gray interpreted Minor v. Happersett in his opinion on US v Wong. That was the only thing I could figure out that made any sense.

  5. avatar
    Expelliarmus March 7, 2009 at 10:29 am #

    Well, I think this all stems from something Donofrio wrote a while back. Donofrio is fond of putting his legal argument online, and he cherry picked quotes from Wong Kim Ark — he clearly understood that the case was against his position and was trying to argue his way around that, but I think most readers of his stuff are unsophisticated and assume those quotes the be the case holding.

    I am saying that because I keep running into bloggers saying that Wong Kim Ark and Perkins v Elg stand for the exact opposite of their holdings, so I am quite sure that the people laboring under those delusions have never actually read the case.

    I’ve got a word count showing 44 instances of the phrase “natural-born citizen” in Wong Kim Ark — and of course the whole point of that case is that the US-born son of 2 Chinese immigrant has full US citizenship by birth.

  6. avatar
    Mario Apuzzo March 7, 2009 at 4:24 pm #

    Dear Dr. Conspiracy:

    The Constitution was drafted on September 17, 1787 and officially ratified and became effective March 4, 1789. Hence, we have to ask ourselves what the Framers intended in 1787 when they wrote “natural born Citizen” in Article II. You concede that before the 14th Amendment was passed, the majority common law view was that a native or natural born citizen was that person born in the United States to parents who were themselves United States citizens. Hence, a fortiori you must also concede that as you maintain that the Framers relied upon common law for their meaning of “natural born Citizen,” when the Framers wrote “natural born Citizen” in Article II in 1787 they meant a person born on U.S. soil to parents who were themselves U.S. citizens. Now you say the Framers’ definition (I repeat, the Framers’ definition) should be changed today because of what Justice Gray said in Kim Wong Ark in 1898 (111 years after the Constitution was ratified) in a case that declared under the 14th Amendment the U.S. born son of Chinese legal resident immigrants (not citizens) a citizen of the United States, all done when the question before the Wong Kim Ark court was not the meaning of an Article II “natural born Citizen” as written by the Framers. Now that is a galactic leap in legal logic, given what the Congressional record shows to be the 14th Amendment’s framers’ intent in writing the amendment, that the Kim Wong Ark case’s holding is limited to a specific set of facts that barely if not questionably serve as a basis to confer U.S. citizenship upon Wong Kim Ark let alone on Obama, and that Kim Wong Ark does not address what an Article II “natural born Citizen” is.

    The 14th Amendment Framers left a clear record for the world to know that a natural born Citizen was one that was born in the United States to parents who were themselves U.S. citizens, the 14th Amendment was not needed to establish that status, and that it did not change that status. Rather what the Amendment did was to confirm who were “citizens” of the United States and of the several States (by qualifying birth or naturalization) and assured that a State would not deny to any such “citizen” the privileges and immunities of citizens of the United States. Also important to understanding the Amendment is that it also gave constitutional rights to persons who were not citizens (legal permanent residents and aliens) when it said that no State shall “deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.” Note the crucial distinction that the Amendment’s framers made within the Amendment itself between “subject to the jurisdiction thereof” and “within its jurisdiction.” It is this distinction that confirms that “being subject to the jurisdiction” (a condition that applies to gaining U.S. citizenship) means a lot more than just being physically present in the jurisdiction (a condition that applies to legal permanent residents and aliens gaining procedural and substantive due process rights). If the two phrases meant the same, there would not be within the amendment itself a contrast between “subject to the jurisdiction” and “within the jurisdiction.” And this takes us back again to the Framers of Article II that required that it was not sufficient for a child to be simply born on U.S. soil (“within the jurisdiction” of the Unites States), for that child also had to be attached to the United States through his or her parents (“subject to the jurisdiction” of the United States). Hence, the 14th Amendment in no way changed the definition of what a “natural born Citizen” is as that term was written by the Framers in Article II. This fact is confirmed by the Amendment’s framers themselves.

    The Wong Kim Ark Court was careful to tell us that it was deciding the case based only “upon the facts agreed by the parties” and that the “necessary effect” of its decision was to declare “a child born in the United States, of parents of Chinese descent, who, at the time of his birth, are subjects of the emperor of China, but have a permanent domicile and residence in the United States, and are there carrying on business, and are not employed in any diplomatic or official capacity under the emperor of China, becomes at the time of his birth a citizen of the United States.” Id. 169 U.S. at 705. In Elk v. Wilkins, 83 U.S. 36 (1872), the Supreme Court in defining “subject to the jurisdiction” of the United States at birth said: “The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.” Hence, Obama’s mother’s U.S. citizenship status alone is not sufficient to make Obama subject to the absolute jurisdiction of the United States. Hence, the decision does not make Obama a “citizen,” for Obama’s father was temporarily in the United States as a student and was not a permanent resident. Justice Gray was willing to find that Wong’s parents had enough attachment to the United States because they were permanent residents of and domiciled in the United States, carrying on a business there, and were precluded by the Chinese Exclusion Act (Acts May 6, 1882, c. 126 (22 Stat. 58)) from naturalizing in the United States. How do you propose that Obama’s father, who was here temporarily as a student and went back to Kenya after his studies, fits the same bill as Wong’s parents?

    The Wong Kim Ark case had nothing to do with an Article II “natural born Citizen.” The Court cautioned that it was deciding the case only “upon the facts agreed by the parties.” The United States also intervened in the decision and argued that Wong Kim Ark was not a U.S. citizen. Hence, you must still convince a court that, even if Obama’s father had the equivalent status as Wong Kim Ark’s parents, which thereby makes Obama a U.S. citizen (of course this is assuming that Obama was born in the United States), it should expand the Wong Kim Ark decision so as to redefine and change what a “natural born Citizen” is as that term was used by the Framers 111 years earlier when they drafted it in Article II while undertaking the critical task of enunciating the eligibility requirements for the President and Commander in Chief of the new nation, the United States of America.

    Lastly, should a court conclude that when the Framers wrote “natural born Citizen” in Article II they meant a child born on United States soil to parents who were United States citizens but that nevertheless Wong Kim Ark should be expanded to accommodate Obama’s birth status so as to make him eligible to be President, you will have to convince that court that it has the Constitutional power to change the meaning of those words to accommodate Obama’s birth status rather than declare that such a historical and critical Constitutional change can be accomplished only with a Constitutional amendment passed by the people.

    Mario Apuzzo, Esq.

  7. avatar
    nbc March 7, 2009 at 5:08 pm #

    Apuzzo misquotes Dr Conspiracy:

    You concede that before the 14th Amendment was passed, the majority common law view was that a native or natural born citizen was that person born in the United States to parents who were themselves
    United States citizens.

    That is not what Dr Conspiracy conceded. In fact quite the opposite

    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. 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. For the purposes of this case, it is not necessary to solve these doubts.

    Lastly, should a court conclude that when the Framers wrote “natural born Citizen” in Article II they meant a child born on United States soil to parents who were United States citizens but that nevertheless Wong Kim Ark should be expanded to accommodate Obama’s birth status so as to make him eligible to be President, you will have to convince that court that it has the Constitutional power to change the meaning of those words to accommodate Obama’s birth status rather than declare that such a historical and critical Constitutional change can be accomplished only with a Constitutional amendment passed by the people.

    No, the courts have the Constitutional power to interpret the Constitution and in this case the term natural born which was not defined and thus found to be dependent of Common Law. Common law strongly supports that natural born includes anyone born under allegiance to the King, or in this case, anyone born under jurisdiction of the United States born on US soil.
    This excludes ambassadors and other immune people but it does include those born on US soil, under US law, even if one or more of the parents is an ‘alien’.

  8. avatar
    nbc March 7, 2009 at 5:12 pm #

    As to Kim Wong Ark

    Held: In a 6-2 decision, the Court held that under the Fourteenth Amendment, a child born in the United States of parents of foreign descent who, at the time of the child’s birth are subjects of a foreign power but who have a permanent domicile and residence in the United States and are carrying on business in the United States, and are not employed in any diplomatic or official capacity under a foreign power, and are not members of foreign forces in hostile occupation of United States territory, becomes a citizen of the United States at the time of birth.

    A citizen of the United States at birth, combined with the Court’s comments strongly suggests that at birth is equivalent with the concept of natural born. I and others have documented various instances that support this interpretation.

    More damning to your position is the argument from the minority in the case

    In the view of the minority, excessive reliance on birthplace as the principal determiner of citizenship would lead to an untenable state of affairs in which “…the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the presidency, while children of our citizens, born abroad, were not”.

    Cheers

  9. avatar
    nbc March 7, 2009 at 5:13 pm #

    Oh Mario, as the lead attorney in Kerchner, does it not worry you that your ‘quo warranto’ request failed to follow proper procedure?

  10. avatar
    nbc March 7, 2009 at 5:17 pm #

    “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
    subjects of the prince whom he represents, although born under the actual protection and in the dominions of a foreign prince.”

  11. avatar
    Mario Apuzzo March 7, 2009 at 5:21 pm #

    To nbc:

    Sounds like you are whining.

  12. avatar
    nbc March 7, 2009 at 5:27 pm #

    –Sounds like you are whining.–

    Is that your final ‘legal’ answer?

    Good luck in court…

  13. avatar
    Ian Gould March 7, 2009 at 5:32 pm #

    Mario, feel free to quote the specific sections of NBC’s posts where he seems to you to be “whining”.

  14. avatar
    Dr. Conspiracy March 7, 2009 at 7:33 pm #

    [Mr. Apuzzo’s cited comments are in indented italic]

    Are you seriously going into court and say that Supreme Court decision in US v. Wong Kim Ark is all wrong, badly reasoned and should be put aside? Are you going to say that Justice Gray and all his authorities are to be cast aside? Are you going to say that hundreds of thousands if not millions of citizens of the United States are not really citizens? That’s basically what you seem to be arguing.

    You concede that before the 14th Amendment was passed, the majority common law view was that a native or natural born citizen was that person born in the United States to parents who were themselves United States citizens.

    No, I do not concede this at all. There is no distinction between native or natural born citizen and just plain citizen at birth in the Minor court’s discussion of original intent. The court is casting doubts (and leaving unsolved) the question of whether someone born in the United States of alien parents before the 14th amendment was a citizen, and this decision is the only place I have seen that such a doubt existed. When I first read Minor v. Happersett I did a double take because it ran against everything I had read up until then. I know of no authority that ever mentions the question. [OK, I haven’t read Dred Scott v Sanford.] And given the results of Dred Scott I would not automatically say that the Minor court did not impose a racist view onto original intent, and created a controversy, when none existed in the 18th Century, or perhaps the controversy was contemporary with them, stemming from kind of anti-immigrant movement. Without some real information onto which to hang my hat, I will take the Minor court’s “doubt” as a curiosity. But whatever it is, a doubt is not a conclusion.

    Hence, a fortiori you must also concede that as you maintain that the Framers relied upon common law for their meaning of “natural born Citizen,”

    I concede this because Lynch v. Clarke, Minor and US v. Wong Kim Ark tell me that this is the case. It is odd that you assert common law because the argument against jus soli is usually cast on natural law (i.e. de Vattel and The Law of Nations), common law be damned. Justice Gray waves Cranch and Blackstone around and says that anyone born in England is a natural born English subject no matter who their parents were. Even de Vattel in the Law of Nations acknowledges that children born in England are English citizens at birth without regard to who their parents are! [De Vattel uses terms in ways that are foreign to Americans; he calls “natural born citizens” those who are citizens by “natural law” and calls “naturalized citizens” those born under man-made law.]

    Now you say the Framers’ definition (I repeat, the Framers’ definition) should be changed today because of what Justice Gray said in Kim Wong Ark in 1898

    Gray presented a survey of common law and based his definition on it. If any one asserts that he “redefined” natural born citizen, then they would have to first show that it was ever defined otherwise, and this I have not seen. Further they would have to dispute the case and authorities that Gray cited, and this I have not seen either.

    Note the crucial distinction that the Amendment’s framers made within the Amendment itself between “subject to the jurisdiction thereof” and “within its jurisdiction.” It is this distinction that confirms that “being subject to the jurisdiction” (a condition that applies to gaining U.S. citizenship) means a lot more than just being physically present in the jurisdiction (a condition that applies to legal permanent residents and aliens gaining procedural and substantive due process rights).

    You can make that distinction, but “within the jurisdiction” is irrelevant to the discussion. The question is who is “under the jurisdiction” and Justice Gray in Wong argues this in detail along with citations and authorities. He says anyone born in the United States is completely under/subject to our jurisdiction. Where are your authorities that say otherwise?

    Justice Gray: The real object of the fourteenth amendment of the constitution, in qualifying the words all persons born in the United States’ by the addition and subject to the jurisdiction thereof,’ would appear to have been to exclude, by the fewest and fittest words (besides children of members of the Indian tribes, standing in a peculiar relation to the national government, unknown to the common law), the two classes of cases,—children born of alien enemies in hostile occupation, and children of diplomatic representatives of a foreign state…

    Justice Gray points out early legislation stating that non-citizens residing “within the limits” were “under the jurisdiction.”

    Justice Gray: By the constitution of the United States, congress was empowered to establish an uniform rule of naturalization.’ In the exercise of this power, congress, by successive acts, beginning with the act entitled An act to establish an uniform rule of naturalization,’ passed at the second session of the first congress under the constitution, has made provision for the admission to citizenship of three principal classes of persons: First. Aliens, having resided for a certain time within the limits and under the jurisdiction of the United States’…

    In Elk v. Wilkins, 83 U.S. 36 (1872), the Supreme Court in defining “subject to the jurisdiction” of the United States at birth said: “The evident meaning of these last words is, not merely subject in some respect or degree to the jurisdiction of the United States, but completely subject to their political jurisdiction, and owing them direct and immediate allegiance.”

    Of course Elk was an Indian and as such by treaty not fully under the jurisdiction of the United States. Justice Gray, citing precedent, states that the United States has complete jurisdiction over its territory unless it should itself choose limitation. To argue, as you do, that the laws of Great Britain limit the sovereignty and jurisdiction of the United States over its territory and inhabitants founders upon the rock of Chief Justice Marshall himself in the case of The Exchange:

    The chief justice first laid down the general principle: ‘The jurisdiction of the nation within its own territory is 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.’ 7 Cranch, 136.

    Now that is a galactic leap in legal logic, given what the Congressional record shows to be the 14th Amendment’s framers’ intent in writing the amendment, that the Kim Wong Ark case’s holding is limited to a specific set of facts that barely if not questionably serve as a basis to confer U.S. citizenship upon Wong Kim Ark let alone on Obama, and that Kim Wong Ark does not address what an Article II “natural born Citizen” is.

    What have seen is cherry picking of quotations from the debate on the 14th amendment, and some ingenuous substitution of remarks made in the debate over the Civil Rights Act of 1866 as if they were from the debate on the 14th amendment. I asked you once before but did not see a response: Do you believe Wong was wrongly decided?

    The key point, and the one that is obfuscated by discussion of natural law or common law is whether there is any difference at all in the terms “citizen at birth” and “natural born citizen”. All of this de Vattel, common law, Representative Bingham and Minor stuff is a distraction because they were arguing over who is a “citizen at birth”. The term “natural born citizen” is used from time to time, but only as a different way of saying citizen at birth. If you grant that Barack Obama was born in Hawaii, then you must concede that he is a citizen at birth, whether under common law before the 14th amendment or by the 14th amendment, or by common law through US v. Wong Kim Ark. If he is a citizen at birth, then he is a natural born citizen because there never has been any distinction in those terms, in the 17th, 18th, 19th, 20th, or 21st century.

    Your argument is deficient because:

    1) You have not shown that common law ever required two parents for citizenship
    2) You have not shown that there is any distinction at law between “born a citizen” and “natural born citizen” in statute or common law.
    3) You have not dealt with the authorities in Wong.

  15. avatar
    nbc March 7, 2009 at 7:55 pm #

    Perhaps whining is legal speak for ‘having standing’?

  16. avatar
    Dr. Conspiracy March 7, 2009 at 8:14 pm #

    That sounds like “strategic retreat” language to me.

  17. avatar
    Dr. Conspiracy March 7, 2009 at 8:20 pm #

    I have a hard time with arrogance, both mine and other people’s. What I do know is that it is very difficult to communicate alongside personal attacks.

    I lose my temper and become frustrated sometimes. I try to keep it under control because I know from long experience that the “low road” leads nowhere good.

    Apuzzo’s problem is that while Justice Gray had authorities stretching as far as the eye can see, the nObamas have just a few, and those at best are ambiguous. I was really surprised to see him throw de Vattel to the sharks (basing the argument on common law) because the nObama unwashed hordes have been conditioned to see it as a case of natural law over common law. Given that Lynch v. Clarke and Wong both argue their conclusions based on common law, Apuzzo would seem to have dug himself in quite a hole.

    I suppose I’m doing Apuzzo a favor by offering my “informed layman” critique of his argument. He can use it to make his argument better. I was working in the yard this afternoon thinking about Donofrio, and that he was probably smarter than me. His problem, though, is that he chose an indefensible position.

  18. avatar
    Mario Apuzzo March 8, 2009 at 12:50 am #

    My comment related to NBC’s little gem regarding my quo warranto action. You can find it on your blog and match my answer to his little piece.

    I also do not understand Dr. Conspiracy’s point about me chosing an indefensible position. My postition is very defensible, for it speaks for itself. You have not show me how it is indefensible.

    Mario

  19. avatar
    NBC March 8, 2009 at 1:31 am #

    Aha, I see. I was referring to you filing a Quo Warranto action without involving the AG. Such a step will likely lead to a dismissal.
    I am sure you know the requirements for Quo Warranto filings in DC court?
    Donofrio may have helped you?

  20. avatar
    brygenon March 8, 2009 at 8:13 am #

    “I also do not understand Dr. Conspiracy’s point about me chosing an indefensible position. My postition is very defensible, for it speaks for itself. You have not show me how it is indefensible.”

    Can’t speak for Dr. Conspiracy, but I don’t think anyone here expects to convince *you* that your position is indefensible. You certainly defend it on your own blog where you censor comments, but we’ve seen a bunch of these suits and our record on predicting the court outcomes is, so far, unblemished.

    You think your case is different. Fine for now, but in the event the dispositive ruling goes against you, please try not to get all Donofrioish and Taitzy with cries of judicial misconduct.

  21. avatar
    Dr. Conspiracy March 8, 2009 at 8:25 am #

    “Indefensible” was a careless choice of words. Of course your position is defensible since you are defending it. What I should have said was “not true”.

    For example, let’s say we were debating whether the holocaust happened or not. I’ve read some rather clever arguments that the holocaust never happened. But no matter how good a debater one is, there is an inherent difficulty in creating a persuasive argument in support of a false proposition. Now in mathematics, where I was trained, proving a false conclusion is logically impossible. In court sometimes the wrong side wins (as evidenced by exonerations by DNA evidence), but we hope that is a rare occurrence.

    In truth, I allow the remote possibility that I could be wrong on this point, that if I had walked up to Charles Pinckney (the last of the Framers remaining in Congress in the 19th century) and asked him what he thought “natural born citizen” meant, he could have replied, “why someone born in the United States to two citizen parents I suppose.” But if this were so, why were no traces of the importance of parentage left in the history or the legal record? If something existed, it should leave marks.

    I would be very interested to see you make the argument from common law that two parents are required.

    I shouldn’t try to tell you your business, but an argument that would convince me would define terms with authorities cited for the definition. If any contrary citations exist, they should also be listed and it should be explained why one overrules the other. Then after terms were defined, I would expect to see those terms used in authorities supporting the 2-parent rule. I would also expect to see contrary citations presented and and explanation as to why they are overruled. In short, I would expect a document about as long as US v. Wong.

    You may chose or not, but I could not be convinced without your dealing with Lynch v. Clarke, New York (1844) and perhaps you could comment on the following:

    The Constitution itself does not make the citizens, (it is. in fact,made by them.) It only intends and recognizes such of them as are natural—home-born—and provides for the naturalization of such of them as were alien—foreign-born—making the latter, as far as nature will allow, like the former. …

    And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

    If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the “natural born” right as recognized by the Constitution in terms the most simple and comprehensive …

    And so strongly was Congress impressed with the great legal fact that the child takes its political status in the nation where it is born, that it was found necessary to pass a law to prevent the alienage of children of our known fellow-citizens who happen to be born in foreign countries. The act of February 10, 1855, 10 Statutes, 604, provides that “persons,” (not white persons,) ” persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States.”

    Attorney General Edward Bates, Opinion of Attorney General Bates on Citizenship (1852).

  22. avatar
    Dr. Conspiracy March 8, 2009 at 1:42 pm #

    There is someone who posts on Mr. Apuzzo’s blog under the name E Publius Goat [this is Charles Kerchner]. Goat writes a rather informing comment, citing some sources a evidence for the importance of de Vattel’s “The Law of Nations” to our founding fathers.

    I wrote this in reply:

    To mtngoat61:

    If it is, as you say, de Vattel’s “The Law of Nations” that inspired the phrase “natural born citizen” in the US Constitution, would you not also agree that de Vattel’s two categories of citizen (natural born and naturalized) also inspired the two and only two categories of citizen delineated in the Constitution?

    De Vattel bases his interpretations of the laws of the nations he reviewed in terms of natural law. For de Vattel those who are citizens by natural law are natural born citizens, and those who are citizens under man-made law are naturalized citizens.

    Based on these distinctions, de Vattel stated that the children of aliens born in England are therefore “naturalized” citizens.

    This concept of natural law as superior to the laws made by the citizens is alien to a constitutional republic such as ours.

    So informed by de Vattel, as well as the democratic principles of our country (unknown to de Vattel), would you say that Barack Obama is a natural born citizen or a naturalized citizen?

  23. avatar
    Dr. Conspiracy March 8, 2009 at 1:40 pm #

    I left the following for Mr. Apuzzo over at his blog:

    http://puzo1.blogspot.com/2009/02/discussion5-kerchner-et-al-v-obama-et.html

    Mr. Apuzzo,

    Perhaps you could explain a question of precedent and how it might to apply to a hypothetical argument about Barack Obama’s legitimacy as president.

    An attorney commented to me once that US Attorney Generals’ Opinions were “precedents” but that they were not binding on the courts.

    I think that it is fair to say, and I think you would concede, that no constitution provision, no law, and no federal court decision comes right out and says that a president of the United States must be born in the United States and be born of two US citizens. If this were the case you wouldn’t in court now about this, an indeed Barack Obama would not be president today.

    While there is no constitutional provision, law or court decision defining “natural born citizen”, there is an Attorney General Opinion that does. Here I refer to Attorney General Bates, Opinion on Citizenship (1862). The opinion reads:

    The Constitution itself does not make the citizens, (it is. in fact,made by them.) It only intends and recognizes such of them as are natural—home-born—and provides for the naturalization of such of them as were alien—foreign-born—making the latter, as far as nature will allow, like the former. …

    And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

    If this be a true principle, and I do not doubt it, it follows that every person born in the country is, at the moment of birth, prima facie a citizen; and he who would deny it must take upon himself the burden of proving some great disfranchisement strong enough to override the “natural born” right as recognized by the Constitution in terms the most simple and comprehensive …

    And so strongly was Congress impressed with the great legal fact that the child takes its political status in the nation where it is born, that it was found necessary to pass a law to prevent the alienage of children of our known fellow-citizens who happen to be born in foreign countries. The act of February 10, 1855, 10 Statutes, 604, provides that “persons,” (not white persons,) ” persons heretofore born, or hereafter to be born, out of the limits and jurisdiction of the United States, shall be deemed and considered and are hereby declared to be citizens of the United States: Provided, however, That the rights of citizenship shall not descend to persons whose fathers never resided in the United States.”

    Attorney General Edward Bates, Opinion of Attorney General Bates on Citizenship (1852).

    It seems to me that this unequivocal endorsement of natural born citizenship for the children born in the United States forms a precedent under which Barack Obama is a legitimate president of the United States.

    Whatever success you might have in overturning such a precedent in federal court would not make Barack Obama’s election and inauguration to the presidency undone. Even should you be able to persuade the court to write new common law, it could not effect the legitimacy of the sitting president.

  24. avatar
    NBC March 8, 2009 at 2:17 pm #

    And our Constitution, in speaking of natural born citizens, uses no affirmative language to make them such, but only recognizes and reaffirms the universal principle, common to all nations, and as old as political society, that the people born in a country do constitute the nation, and, as individuals, are natural members of the body politic.

    Yes, of course Apuzzo makes a big deal out of the term allegiance which means really nothing more than subject to the laws of the country.

    As I quoted above

    “Allegiance is nothing more than the tie or duty of obedience of a subject to the sovereign under whose protection he is

    Born on US soil is born under allegiance of the United States.

  25. avatar
    Dr. Conspiracy March 8, 2009 at 2:29 pm #

    I get this funny impression of what Apuzzo is doing. His lawsuit is almost all “born in Hawaii”. But now he’s saying “Let’s just talk about the definition of NBC”. E Publius Goat, an apparent Apuzzo supporter, is all “natural law” and “de Vattel”. But Apuzzo is saying, we have to focus on “common law”. Where’s he going with that? The Wong court made it clear that British Common Law made the children of aliens born in England “natural-born subjects”.

  26. avatar
    Gregarious June 17, 2009 at 6:36 pm #

    In your writing, you assert that Baraq is a citizen because he was born in the US. You apparently are not paying attention; it is still greatly disputed as to how he got a ‘birth certificate’. He has spent thus far, almost a million dollars to avoid proving his birthplace. He is not my president, and when he is proven a sheister, everything he has done, every act as president, will be no more. Except for the great shame he is bringing on America in his scam.

  27. avatar
    nbc June 17, 2009 at 6:58 pm #

    In your writing, you assert that Baraq is a citizen because he was born in the US. You apparently are not paying attention; it is still greatly disputed as to how he got a birth certificate’. He has spent thus far, almost a million dollars to avoid proving his birthplace. He is not my president, and when he is proven a sheister, everything he has done, every act as president, will be no more. Except for the great shame he is bringing on America in his scam.

    Note how Gregarious fails to provide any evidence that the million dollars was spent on the eligibility issue. Note that G. is avoiding the fact that Obama has released his COLB, note that G is arguing that there is a ‘great dispute’ which appears to exist mostly in his mind and imagination only.

  28. avatar
    Dr. Conspiracy June 17, 2009 at 9:58 pm #

    The dispute is only among those who listen to rumors rather than the facts. If you don’t think Barack Obama is not your president, then I suggest that you are in denial.

    If you don’t believe that he’s your president, just break some criminal statute he signs and try that “not my president” as a defense. Hmmm, might work for an insanity plea.

  29. avatar
    G February 12, 2010 at 11:55 am #

    Well, that is such a generalized statement without any direct reference to its application.

    Therefore, it is unclear what your point is at all or how it applies to this blog post.