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Bates on Citizenship

AG Opinion

AG Opinion

Many say, and perhaps rightly, that the US Supreme Court has never stated what the definition of natural born citizen is and so they conclude that it is necessary for a court to make this decision before the legitimacy of Barack Obama as president can be known.

But, the legitimacy of Barack Obama’s presidency and the definition of natural born citizen has been thoroughly studied by the Abraham Lincoln’s Attorney General way back in 1862, and he rendered his opinion quite clearly and plainly.

United States Attorney General opinions are carefully reasoned statements based on law, and form the basis for practice in the Executive Branch. Unless there is a change in the law or a court ruling to the contrary, these opinions are reliable statements of the law. No court having ruled otherwise, the following opinion is still as valid today as it was in 1862. This means that Barack Obama is the legitimate president of the United States right now. You can all stand down, relax, and get on with your lives. You don’t have to thank me.

Attorney General Edward Bates, Opinion on Citizenship (1862)

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 (1862).

A number of people have gone back to an 18th century Swiss philosopher for the meaning of natural born citizen. Emmerich de Vattel put forth a philosophy of “natural law” which he considered set by nature and universal. When applying natural law to the concept of citizenship, he defined two classes of citizen: one he called “natural born” meaning born a citizen according to natural law and one he called “naturalized citizen” meaning one made a citizen by the laws of man. See de Vattel, The Law of Nations Book 1, Chapters 212 (natives) and 214 (naturalized).

What  is interesting is that Attorney General Bates shares this same division in citizenship between those who are who are natural born and those made citizens by law. He said: “We have natural born citizens (Constitution, article 2 § 5,) not made by law or otherwise but born“. (emphasis in the original). It is interesting to note the emphasis on the word “born” which matches nicely with the same emphasis in the John Jay letter to George Washington, written during the Constitutional Convention of 1787.

While the Swiss de Vattel believed that the universal law of nature impled that citizenship only follows blood, the British/American view of the universal law of nature implied that citizenship follows place of birth. For us “natural born” means born in the country.

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32 Responses to Bates on Citizenship

  1. avatar
    Sally Hill March 12, 2009 at 11:54 am #

    When was it decided? By a vote of people who have standing to vote but no standing to question the eligibility for who that vote is cast? That seems a bit of a contradiction to me.

    But then, that vote isn’t really for the candidate is it, rather for the electorate. So….can you really say the vote for someone else to vote for Obama was validation of his eligibility?

  2. avatar
    Heavy March 12, 2009 at 12:07 pm #

    Yes, they can say that, Sally. Liberals can say whatever they want. It never makes sense. Liberalism, by definition, is a contradiction.

    Remember, liberals are truth averse and cannot be shamed.

  3. avatar
    nbc March 12, 2009 at 12:12 pm #

    Oh the irony. Heavy just declared himself to be a liberal

  4. avatar
    Dr. Conspiracy March 12, 2009 at 5:52 pm #

    The natural born citizenship question was decided in 1862. You have to click the “more…” link at bottom to view the whole article, not just the teaser.

  5. avatar
    Dr. Conspiracy March 12, 2009 at 5:53 pm #

    Jesus was a liberal.

  6. avatar
    Hitandrun March 14, 2009 at 2:39 pm #

    Doc,
    On what basis do you deem Jesus a liberal, as you define liberalism? Was he more liberal than Martin Luther or Barack Obama?
    I’ll admit, though, the manner and location of your Saviour’s birth (natural or unnatural?) remains far more problematic than even Mr Obama’s.

    Stay well,
    Hitandrun

  7. avatar
    Zuzu's Petals March 14, 2009 at 6:48 pm #

    Well, an AG opinion is not legally binding, nor “precedent” in the same way a court holding would be. While a court would give great weight to an opinion of the Attorney General, it is free to ignore it as well.

    AG opinions are relevant to how the executive branch may (or may not) interpret a particular law or view a particular issue, and while subsequent administrations may follow them, they are not bound by them. They can be a good indication of the last executive branch thinking on the matter, as here.

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

    That’s a topic for another blog and another time. [That blog is set up, but I haven’t had time to put any content in.] I would think Jesus was far more liberal than Martin Luther (who I wouldn’t consider liberal at all). I wouldn’t speculate about Barack Obama. Of course it all depends on what one considers a liberal (and a conservative). I don’t define it according to the usual litmus test special interest issues.

    I wonder how many politically right-leaning Christians are demanding Obama’s birth certificate, but take Jesus’ divinity on faith.

  9. avatar
    Dr. Conspiracy March 14, 2009 at 7:34 pm #

    While a court is free to ignore it, creating new common law, I say the precedent stands until they do.

  10. avatar
    Expelliarmus March 14, 2009 at 7:57 pm #

    Technically, it is “authority”, not “precedent”. As a term of art, the word “precedent” only applies to prior court decisions that are binding on the court hearing the case.

    For example, an opinion by the California Supreme Court is “precedent” when cited in actions pending in the state courts, but not in federal courts and not in other states.

    There’s a good discussion on the term here:
    http://www.lectlaw.com/def2/p069.htm

  11. avatar
    Zuzu March 14, 2009 at 10:16 pm #

    Except the opinion of the AG is advisory only. It is advice provided to the President, the heads of executive agencies, and in some cases of administrative questions, the military.

    28 USC Secs. 511 – 513, inclusive

    Thus, an opinion of the Attorney General is not binding on the courts or on third parties, and is thus not common law. So it is not precedent (and not really “authority” except that it expresses the official opinion of the AG at the time it is given).

    But it is helpful in understanding how the executive branch may have understood certain terms in the laws they enforced, for instance.

    And this opinion is a good example of that.

  12. avatar
    Dr. Conspiracy March 14, 2009 at 10:48 pm #

    The comment I made on AG as precedent came from a state AG web site. Perhaps states are different. So what can I say if anything about the usefulness of Bates’ statement in the current situation? Can the article be fixed?

  13. avatar
    Expelliarmus March 14, 2009 at 11:36 pm #

    I think it is useful in terms of its historical value. In that vein, the fact that Edward Bates was Lincoln’s Attorney General is also noteworthy, as his opinion on citizenship would have been influential in the drafting of the 14th Amendment.

    In that respect, Mr. Bates was remarkably prescient:

    As to the objection (not in law, but sentiment only) that if a negro can be a citizen of the United States he might, possibly, become President, the legal inference is true. There would be such a legal possibility. But those who make that objection are not arguing upon the Constitution as it is, but upon what, in their own minds and feelings, they think it ought to be.

    The Constitution, I suppose, says what it means, and does not mean what it does not say.

    Opinion, at page 18.

  14. avatar
    Zuzu March 15, 2009 at 12:44 am #

    Wow, that’s interesting. I’d be interested in seeing that state website…would you be willing to e-mail me the link?

    I agree with E that it is an important document historically, and it is “authoritative” without necessarily being authority. For instance, it wouldn’t surprise me to see a court cite to it in a discussion of the topic…though of course it wouldn’t be binding.

  15. avatar
    Dr. Conspiracy March 15, 2009 at 8:17 am #

    According to what I read, in Kentucky, AG opinions are considered precedent.

    http://papers.ssrn.com/sol3/papers.cfm?abstract_id=979954

    I think this may be the case in a couple more states. I went through a lot of material trying to backup a comment someone left here that said AG opinions were precedents, but not binding on the courts, before I used it.

  16. avatar
    Zuzu March 15, 2009 at 2:47 pm #

    Ah, thanks for that info. I see what the writer meant, but when using the word “precedent” he trips some wires and causes some needless confusion, as you can see.

    Here’s a little more clarity from the Kentucky AG, which as far as I can tell reflects pretty much what most states (and the fed govt) would say about AG opinions:

    Opinions of the Attorney General (OAGs) do not have the force of law, but they are persuasive and public officials are expected to follow them. Formal opinions are thoroughly reviewed and represent the official position of the Office of the Attorney General.OAGs may be cited in all Kentucky courts.

    Kentucky AG

    By the way, you are doing a fantastic job with this site. Thank you for all the hard work.

  17. avatar
    Zuzu March 15, 2009 at 2:49 pm #

    Darn it, must’ve pushed the wrong button. My reply to you appeared out of sequence, at 2:47 pm. Sorry ’bout that!

  18. avatar
    Hitandrun March 15, 2009 at 4:14 pm #

    Precedents are only binding until unbound by any court in any case. Their value lies in guiding decision and in buttressing rule of law tradition. They may be overturned at any time if the current judge or justice feels the precedents are erroneous, i.e, they do not comport with original statutory/Constitutional intent or meaning.

    Hitandrun

  19. avatar
    Dr. Conspiracy March 17, 2009 at 7:49 pm #

    This article has undergone major revision.

  20. avatar
    Will Morrison May 21, 2009 at 6:50 pm #

    The bottom line question is this: If Barack Hussien Obama II is a natural born citizen, why will he not release (1) his “birth certificate” (versus a “certification of live birth”) and (2) release his admission paperwork from Occidental, Columbia and Harvard?

    Who certified that he is in fact a natural born citizen – the DNC? They’re the ones that made him the party’s nominee for POTUS. However, I’ve seem to have missed how they are an official, lawful body of the United States to provide such certification.

    Obama could put this entire mess to bed by simply coming forth and providing all the evidence that he is a natural born citizen. He could write the governor of Hawaii and provide permission for his “birth certificate” to be released. But he won’t!

    Instead, he allows this controversy to continue. A man with nothing to hide would render this argument moot by providing proof of citizenship (just like McCain had to do when the fact he was born in the Panama Canal Zone was raised during his run for POTUS). Obama’s refusal to release the information, is it misdirection, or something to hide?

    So much for transparency!!

  21. avatar
    Will Morrison May 21, 2009 at 6:56 pm #

    If AG’s set precedence, then Obama and the Congress would not be considering criminal charges against Bush administration officials in association with “enhanced torture techniques.”

    Your information is wrong. Only courts set precedence.

    A law is lawful until it is challenged in the courts. A good example is the 30-year ban on owning guns in the District of Columbia. Only last year was the law overturned by the Supreme Court which held that the ban was unconstitutional.

    There is precedence!

  22. avatar
    NBC May 21, 2009 at 6:57 pm #

    Yawn. Obama did put the entire mess to bed by providing his COLB which shows him born in the United States. The states, the people, the electoral college and the Congress all seemed to agree and President Obama was sworn in as our 44th President earlier this year.

    Note that little Obama would do would make this manufactroversy go away as they would simply move to ‘well he was British’ or ‘Indonesian’ or even ‘Kryptonian’. When that does not work, the charge will be that the document was falsified… And so on, distracting from the work our President has laid out for him.

    It’s an exquisitely apt move on his part to have a few outspoken critics of his waste their time and resources on a non-issue.

  23. avatar
    Dr. Conspiracy May 21, 2009 at 9:13 pm #

    Will Morrison: “The bottom line question is this: If Barack Hussien [sic] Obama II is a natural born citizen, why will he not release (1) his “birth certificate” (versus a “certification of live birth”) and (2) release his admission paperwork from Occidental, Columbia and Harvard?”

    Reminds me of a guy and a girl in the back seat of a car, where the guy says “if you really love me…”.

    If you are a rational human being, why are you asking for these things?

    Obama was certified by a special joint session of Congress (like all presidents).

  24. avatar
    Dr. Conspiracy June 20, 2009 at 9:52 am #

    The preceding links to a massive NBC argument. I suppose it should be looked at.

  25. avatar
    aarrgghh June 20, 2009 at 11:15 am #

    and the freepers are drooling over this new bait:

    i am now impelled to replenish my ink cartridges and get my trusty cannon printer to work. the temptation of course, with persons being busy otherwise is just to lightly scan over such as this work. being retired i intend to read it over and over. at first glance though, i will use this though it may be a cliche, i would use the word “scholarly”. i would also use the word “cogent” – this is of course praise indeed.

    http://www.freerepublic.com/focus/f-bloggers/2275574/posts?q=1&;page=1#11

    i expect this offal to clog the intertubes for at least a month.

  26. avatar
    Dr. Conspiracy June 20, 2009 at 11:31 am #

    I will say, having read the first part of the article, that its quality is far above the junk one usually sees.

  27. avatar
    Bob June 20, 2009 at 12:21 pm #

    tRoSL has been linking to it for awhile. Phil, remarkably, calls it “unbiased.”

  28. avatar
    Expelliarmus June 20, 2009 at 2:55 pm #

    The Stephen Tonchen article contains a number of basic errors in legal reasoning. For example, he’s got the standard of proof thing wrong. He writes:

    A Quo Warranto inquiry is not a prosecution. It does not accuse Barack Obama of breaking any law. The inquiry is a civil proceeding, not a criminal one. In a Quo Warranto inquiry, the DC District Court would say to Barack Obama something to this effect (loosely paraphrased):

    Mr. President, you are being asked to show, beyond reasonable doubt, that you are eligible to hold the office that you are currently holding.

    But the standard of proof in a civil action, including quo warranto, is “by a preponderence of evidence”, not “beyond a reasonable doubt.” The reasonable doubt standard applies only to criminal cases.

    So quo warranto would actually be a request,

    Mr. President, you are being asked to show by a preponderence of evidence that you are eligible to hold the office that you are currently holding.

    Tonchen’s own analysis of the significance of the COLB and Hawaiian birth registration practices make it clear that production of the COLB would satisfy that evidentiary standard so far as proof of Hawaiian birth. “Preponderence” means a balancing of evidence: an amount or quality of legally admissible evidence that Obama was born in Hawaii that overcomes whatever legally admissible evidence adduced to show he was born somewhere else. Since the “somewhere else” theory has no evidence whatsoever to support it, the COLB, or even the newspaper birth announcements, would suffice.

    So much for quo warranto.

  29. avatar
    Bob June 20, 2009 at 3:13 pm #

    Of course, the burden is always on the plaintiff (technically, the petitioner for a quo warranto writ). The initial burden would be on the petitioner to prove that Obama wasn’t born in Hawaii.

    And that even assumes one can initiate DC’s quo warranto proceedings against the president.

  30. avatar
    Expelliarmus June 20, 2009 at 4:45 pm #

    Actually, in quo warranto – once the writ issues – the burden shifts to the respondent. That’s because, like other extraordinary writs, a quo warranto is actually a form of show cause order — the petitioner bears an initial burden of establishing a prima facie case in an ex parte written presentation to the court, then the court’s issuance of the writ forms the basis of the ensuing action.

    Quo warranto is unique in that it also allows for a jury trial — and in that proceeding the burden of proof would be on the respondent — as noted, with a “preponderence of evidence” standard. The jury would decide the factual issue only: was Obama born in Hawaii? So we could hypothesize a proceeding in which Obama’s lawyer shows up and introduces a properly certified paper COLB as well as authenticated copies of the Hawaii newspaper birth announcements, and rests the case on that basis. At that point the petitioner would have an opportunity to introduce whatever evidence is available that Obama was born somewhere else — there does not seem to be any, so the court would end up giving instructions to the jury that would in essence force a directed verdict. That is, the court would, at the very least, have to instruct the jury that at the COLB was prima facie evidence of time and place of birth in the absence of any contrary evidence.

    Of course… without evidence, its hard to see how the petitioner establishes the prima facie case to justify issuance of the writ in the first place. I think that’s why Donofrio shied away from the Kenya-birth theory — there isn’t anything that could honestly be alleged in a petition to support that.

  31. avatar
    Bob June 20, 2009 at 5:30 pm #

    Thanks for explaining for those following along at home. (And for clarifying once the OSC issued the respondent would have the burden. But, as you noted, the initial burden to have OSC issue is on the petitioner.)

    Donofrio was pushing for a quo warranto action for awhile. But for him, even in a quo warranto action, the real issue would be regarding the legal issues of the natural-born citizenship clause…as that’s not an issue of fact, the jury wouldn’t decide that.

  32. avatar
    aarrgghh June 20, 2009 at 11:46 pm #

    instead of offal, perhaps olestra is a better term; the primer tastes great (to birthers) without adding any nutritious value.

    birthers will jump on it like the latest diet craze, but nothing in this wall of text actually advances their cause — removing obama — one inch in any direction.