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Madison v. Madison

“Constitutional researcher” P. A. Madison plays fast and loose with his sources.

The two “Madisons” are contemporary self-identified “constitutional researcher” P. A. Madison, pseudonymous author of an article on the Federalist Blog that is the topic for discussion here, and James Madison, framer of the Constitution, Congressman and 4th President of the United States.

This web site recently featured President James Madison in the article James Madison on Birth and Allegiance.

In a speech before the House of Representatives in May of 1789, James Madison said:

It is an established maxim, that birth is a criterion of allegiance. Birth, however, derives its force sometimes from place, and sometimes from parentage; but, in general place is the most certain criterion; it is what applies in the United States.

Abridgment of the Debates of Congress, from 1789 to 1856 From Gales and Seatons’ Annals of Congress; from Their Register of Debates; and from the Official Reported Debates, by John C. Rives By United States. Congress, Thomas Hart Benton

P. A. Madison, on the other hand asserts the opposite, that place of birth alone does not and cannot grant citizenship in his article, Defining Natural-Born Citizen. We know P. A. Madison from an earlier article challenging the citizenship of children born in the United States to illegal aliens, something true today under the Supreme Court decision in United States v. Wong Kim Ark. P. A. Madison disagrees with that decision and presents an alternate view of history (from the legal and judicial survey in the Wong decision) in which parentage matters.

Certainly P. A. Madison is the most eloquent writer I know of who takes the view he has, and to someone who knows only one side of the story, perhaps he is is even persuasive. Let us examine what P. A. Madision has to say. His opening comment is a quotation from George Mason: “The common law of England is not the common law of these States. –”George Mason”. This is an important point because the courts up until now have relied on the fact that English common law was in effect at the time the United States separated from England, and formed the basis of American jurisprudence except when our Constitution differed, or we made new laws. Under English common law, those born under the jurisdiction of the King (geographically) became natural born subjects, without regard for the status of their parents.

While P. A. Madison doesn’t identify the source of the quotation, it comes from the debate in the Virginia Ratifying Convention in June 1788. (Here at Obama Conspiracy Theories, we believe in making it easy for readers to verify context through links to original documents.) As I read George Mason’s comments, I do not believe that he is saying that the common law of England not the source of definitions in the Constitution, nor is he saying that American jurisprudence is not founded on the common law of England, but rather that Americans are free to make any changes they see fit under our own Constitution (by all means, read the context for yourselves). Indeed the Supreme Court of the United States refutes P. A. Madison when it said:

Smith v. Alabama (1888) 124 U.S. 465:

The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.

P. A. Madison then asks the rhetorical question: “Could a natural-born citizen simply mean citizenship due to place of birth? Unlikely because we know one can be native born and yet not a native born citizen of this country prior to the year 1866.”

Interestingly, P. A. Madison leaves that statement stand without explanation. He is, of course, referring to the slaves, who were born in the United States, but (according to the Supreme Court in the infamous Dred Scott v. Sanford case) were not and could never become citizens. The passage of the Civil Rights Act of 1866 made the slaves citizens and the 14th Amendment enshrined citizenship of the former slaves in the Constitution itself.

Slavery was a point of cognitive dissonance within the Constitution, which on the one hand declared freedom and equality, and on the other hand recognized slavery. Because of the self contradiction involved, I think it impossible to argue any point based on it. Court cases which talk about citizenship recognize a special exception for the slaves, one which we today would reject in total.

P. A. Madison then goes on to argue that issues of citizenship were questions for the States. He said: “Jurisdiction over citizenship via birth within the several States was part of the “ordinary course of affairs” of the States that only local laws could affect. “P. A. Madison then goes on to say (again without citation or link to the original):

After independence each State was free to establish their own maxims on the subject. James Madison’s own State of Virginia adopted a birthright law authored by Thomas Jefferson that recognized parentage (citizenship of father) in determining citizenship of the child, as well as recognizing the right of expatriation – something unheard of under the common law. States that were slow in enacting laws over acquiring citizenship through birth forced courts to adjudicate citizenship disputes under common law rules.

So one again is forced to go looking to see whether P. A. Madison is speaking honestly,  or resorting to a subtle twist of words to fool us. Note that he fails to say what the law actually was, only that it “recognized parentage”. “Recognize” is rather different from “required”. The Charter of Georgia (1732) , see my article Natural Born in Georgia, accepted either birth place or parentage as sufficient for being natural born subjects.

This the point (after two citations with abused context) where I get disgusted with dishonest reporters like P. A. Madison.

It appears that P. A. Madison is referring to Chapter LV of the Laws of Virginia, 1779 or perhaps Chapter XVI from 1783. And indeed, the law does consider as citizens both those born in the Commonwealth and the children of those who become naturalized. While P. A. Madison speaks truly that citizenship of the father is recognized, he fails to disclose that it was not a requirement and that being born in the Commonwealth was sufficient to be a citizen, regardless of the condition of the father.

That all free persons, born within the territory of this commonwealth… shall be deemed citizens of this commonwealth

Chapter XVI from 1783

So the smoke screen is parted. Now if P. A. Madison could site for us ANY state which had parental citizenship requirements for persons born in the state to be its citizens, let him state it. However, since none was given, we may reasonably assume that P. A. Madison did not know of any. Therefore, this entire part of the argument is pure misdirection. It hardly matters whether birth in the country was a federal common law understanding, or whether it was a combination of federal common law and state statute or how tangled the courts got; the end result is the same. In the United States, we don’t require citizen parents of our citizens.

[It is September 5, 2009. Assuming I was correct in saying that Madison was non-specific as to what law of Virginia he referenced, the Madison article has changed to provide the reference, sort of. He now references a law of 1779, and quotes it:

[A]ll infants, whenever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise, their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this Commonwealth until they relinquish that character, in manner as hereinafter expressed; and all others not being citizens of any, of the United States of America, shall be deemed aliens.

However that quotation is not accurate, and what is visually rather suspicious is that he has the SAME citation in an earlier article from 2007, only accurate then.

[A]ll infants, wheresoever born, whose father, if living, or otherwise, whose mother was a citizen at the time of their birth, or who migrate hither, their father, if living, or otherwise, their mother becoming a citizen, or who migrate hither without father or mother, shall be deemed citizens of this Commonwealth until they relinquish that character, in manner as hereinafter expressed; and all others not being citizens of any, of the United States of America, shall be deemed aliens.

While I cannot prove that the first citation was intentionally altered to change the meaning to support P. A. Madison’s theories, his contextual dishonesty with other citations makes it plausible.] [Update: Madison’s article has changed again and the citation is now correct.]

P. A. Madison continues:

Could a natural-born citizen perhaps be synonymous with the British term “natural-born subject”?

It is very doubtful the framers adopted the doctrine found under the old English doctrine of “natural-born subject.” The British doctrine allowed for double allegiances, something the founders considered improper and dangerous.

Framer Rufus King said allegiance to the United States depended on whether a person is a “member of the body politic.” King says no nation should adopt or naturalize a person of another society without the consent of that person. The reason? Because “he ought not silently to be embarrassed with a double allegiance.

I think that is rather ironic. What this says to me is that the United Kingdom shouldn’t be able to make Barack Obama a Citizen of the UK and Colonies without his consent (which he did not give) and that consent is essential for citizenship (while P. A. Madison’s entire argument rests on the importance and validity of involuntary application of citizenship by second countries). But as to the initial question, a number of commentators have said that yes, the terms are convertible.

The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a,strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.

US v. Wong Kim Ark

And if, at common law, all human beings born within the ligeance of the King, and under the King’s obedience, were natural-born subjects, and not aliens, I do not perceive why this doctrine does not apply to these United States, in all cases in which there is no express constitutional or statute declaration to the contrary. . . . Subject and citizen are, in a degree, convertible terms as applied to natives, and though the term citizen seems to be appropriate to republican freemen, yet we are, equally with the inhabitants of all other countries, subjects, for we are equally bound by allegiance and subjection to the government and law of the land.

2 Kent Com. 258, note. (cited in Wong preceding)

“The term ‘citizen,’ as understood in our law, is precisely analogous to the term ’subject’ in the common law, and the change of phrase has entirely resulted from the change of government. The sovereignty has been transferred from one man to the collective body of the people; and he who before was a ’subject of the King’ is now ‘a citizen of the state.” State v. Manuel, 20 N. C. (4 Dev. & B. L.) 20, 26 (1838)

P. A. Madison shifts gears to discuss the 14th Amendment:

Whatever might had been the correct understanding of “natural-born citizen” prior to 1866, the adoption of the Fourteenth Amendment certainly changes the view because for the first time we have a written national rule declaring who are citizens through birth or naturalization. Who may be born citizens is conditional upon being born “subject to the jurisdiction” of the United States – a condition not required under the common law. The legislative definition of “subject to the jurisdiction thereof” was defined as “Not owing allegiance to anybody else.”

A more complete version of this quotation shows that Senator Trumbull was particularly talking about the Indian tribes not being under the complete jurisdiction of the United States:

Of course my opinion is not any better than any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that “all persons born in the United States and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the Unites States?” Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them…. [the remainder of the section deals with Indians]

Congressional Globe. Debate from 39th Congress, 1st Session, Page 2893

What we have already seen in the quotation from President Madison, is that place of birth is what determines allegiance in the United States, and this is further buttressed by the citation from US v. Wong preceding. P. A. Madison’s fundamental error here is taking “allegiance” in a common way and not as it was used by the founders and the courts since then. The rest of P. A. Madison’s argument is undermined by the correct definition of what jurisdiction and allegiance means. (Note that P. A. Madison believes the Supreme Court was wrong in its 6-2 decision in Wong, but I cannot help that.) The reader would do well here to read the complete decision in US v Wong, since that is the essence of its lengthy argument, that allegiance to those within the United States is absolute and immediate, without regard to whose citizens they are (only excepted in the case where we grant immunity from our jurisdiction as to ambassadors). In the words of Chief Justice Marshall (cited in Wong):

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.

Finally, while not quoting Emerich de Vattel, he uses the ideas of that Swiss philosopher  on Natural Law. Natural Law is really a means to justify ones own prejudices, which at the end of the day is what P. A. Madison is trying to do. I would recommend my article De Vattel for Dummies for a discussion about Natural Law and Citizenship.

P. A. Madison, by failing to link to his sources, and omitting essential details, makes technically correct statements which are carefully crafted to mislead the naive reader. In short, P. A. Madison has no respect for the truth or for his readers. Heck, I don’t know if P. A. Madison is even his real name. [Update: It isn’t.]

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93 Responses to Madison v. Madison

  1. avatar
    Gordon May 26, 2009 at 12:22 am #

    I was just debating Marberry v Madison with the birthers on Team Sarah and this new thread popped up. Thanks.

  2. avatar
    jtx May 26, 2009 at 11:54 am #

    Dr. C. (I presume):

    The issue is not really “birth” nor even place of birth per se but more correctly all of the circumstances and vital statistics relating to the O-borter’s birth. I’m sure most would agree that he was “born” although I’ve heard that he was found under a coconut half … but I discount that ro a certain degree at least.

    There are other items of information that are necessary before the establishment of the necessary and sufficient level of “proof”. Not to worry; this will all come out before the court under evidentiary rules rather than be spewed out on blogs by O-borter lovers (or the opposite). THAT’S where the rubber will meet the road and the sooner we get to that determination the better – for all of us.

    In the meantime, I continue to think that your reliance (especially) on WKA is misplaced. But I’ve other things to do (such as cut the grass) rather than waste time with you on the matter.

  3. avatar
    Dr. Conspiracy May 26, 2009 at 1:15 pm #

    By all means, mow your grass. I’m sure the grass will be much easier to convince that you’re right.

    You spend an awful lot of time excusing yourself from substantive comment by saying you don’t have the time.

    For the record, my grass needs cutting too, but that didn’t stop me from turning out 3 main articles yesterday. I will admit that at 1 AM last night, I did wimp out, and didn’t put everything into Madison v Madison that could have been said.

  4. avatar
    NBC May 26, 2009 at 12:26 pm #

    The issue is not really “birth” nor even place of birth per se but more correctly all of the circumstances and vital statistics relating to the O-borter’s birth.

    Born in Honolulu Hawaii on August 4th 1961

    There are other items of information that are necessary before the establishment of the necessary and sufficient level of “proof”.

    Sure, the COLB would need to be submitted to the Courts. Of course, since the Courts refuse to hear the matter, having the certificate available appears to have been sufficient for Congress to rule him qualified.

    Not to worry; this will all come out before the court under evidentiary rules rather than be spewed out on blogs by O-borter lovers (or the opposite). THAT’S where the rubber will meet the road and the sooner we get to that determination the better – for all of us.

    Under evidentiary rules, the COLB will play a major role, however before we get to discuss evidentiary rules, one has to gain standing with the Court.

    Good luck with that.

    In the meantime, I continue to think that your reliance (especially) on WKA is misplaced. But I’ve other things to do (such as cut the grass) rather than waste time with you on the matter.

    Translation: Lacking any data, I’d better run before I get my *** kicked even further. Indeed, so far you seem to have wasted your and our time by failing to present much of any kind of argument or data.

    Of course Wong Kim Ark is incredibly valuable since it explored the meaning of natural born and showed a rich history in legislative and legal rulings that have concluded that anyone born in the US is a natural born citizen with a few exceptions such as born to invading military or born to ambassadors etc.
    I do understand why you believe one’s reliance of such rulings should be considered to be misplaced, yet they are all, what’s the term again, oh yes, legal precedent.

    But that all requires that the issue of standing will be resolved. And that is unlikely.

  5. avatar
    kimba May 26, 2009 at 12:31 pm #

    Yet you return again and again. One of the great birther fantasies is that you will “get the goods” on Obama in discovery. No judge will allow a case to proceed if all a plaintiff has is the suspicion he can learn the evidence he needs to prove his case in discovery. And then there’s that pesky issue of standing. Toodles.

  6. avatar
    NBC May 26, 2009 at 12:34 pm #

    What’s even funnier is that they lack any positive evidence to support their case.

  7. avatar
    SvenMagnussen May 26, 2009 at 12:57 pm #

    “he ought not silently to be embarrassed with a double allegiance.”

    What if we found out Barry Soetoro self-identified his nationality as Indonesian on his college records?

    Shouldn’t we respect Mr. Soetoro’s proclamation. As a refugee fleeing the turmoil of Indonesia in the early 70’s and returning to his homeland in the early 80’s and the freely choosing not to become a naturalized US citizen, then I think it is important for Americans to recognize the choice Barry has and stop imposing the doctrine of birthright by place.

  8. avatar
    kimba May 26, 2009 at 1:00 pm #

    They know, at least the attorneys know they don’t have admissible evidence. They’re hoping if they file enough suits they’ll eventually find a judge who will fall for “Honest, your honor,we’re pretty sure we’d have a case if you’d just give us the chance to discover it. We’re patriots you know.” Junior-birthers like jtx, though, have bought the Berg-Orly-Kreep-Apuzzo-WND BS and come here like they’re going to put the “Obots” in their place. Instead they get the “Bop the Mole” experience.

  9. avatar
    NBC May 26, 2009 at 1:07 pm #

    What if we found out Barry Soetoro self-identified his nationality as Indonesian on his college records?

    No, what you have found is a record which describes his nationality as Indonesian. It’s far more likely that this record was filled out by the teacher or the administrator.

    Shouldn’t we respect Mr. Soetoro’s proclamation. As a refugee fleeing the turmoil of Indonesia in the early 70’s and returning to his homeland in the early 80’s and the freely choosing not to become a naturalized US citizen, then I think it is important for Americans to recognize the choice Barry has and stop imposing the doctrine of birthright by place.

    You also accept his city of birth as Honolulu, making him a US natural born citizen.

    Time to stop making up fiction, when the facts speak for themselves.

    Sigh…

  10. avatar
    richCares May 26, 2009 at 1:07 pm #

    “Indonesian on his college records”

    His HS transcripts came from Punahou HS not Indonesia. Punahou clearly shows him as Barrack Obama, no Soetoro at Punahou,
    (his nickname was Barry Obama not Barry Soetoro, that was an Orly invention)
    Get a brain Birther!

  11. avatar
    Dr. Conspiracy May 26, 2009 at 1:10 pm #

    “What if we found out Barry Soetoro self-identified his nationality as Indonesian on his college records?”

    Given that Obama attended school in Hawaii from age 10 until high school graduation, why would he do such a bizarre thing as put “Indonesian” on his college application? That’s about as likely as you starting to make sense in your comments. The ONLY reason idiots think this happened is because when Obama was 3 years old, there was another student named Soetoro attending high school in California.

  12. avatar
    NBC May 26, 2009 at 1:14 pm #

    I’d missed that ‘factoid’. Sigh, such shoddy research…

  13. avatar
    SvenMagnussen May 26, 2009 at 2:42 pm #

    So, you admit evidence exists which identifies Barry Soetoro as an Indonesian. It’s ironic the school administrator got it exactly right on Obama’s birthplace, but completely missed the boat when transcribing Obama’s nationality on to the same document identifying Obama’s birthplace.

    I would speculate the administrator got it exactly right when he/she identified Barry’s nationality but confused Barry’s origin of his transferring school records with his birthplace.

    Wouldn’t it be reasonable to assume a school administrator is more interested in the location of a transferring student’s records, as opposed the student’s birthplace?
    Have you ever tranferred a student from one school district to another state’s school district? I have. Prior school records are more important than birthplace.

    So, we’re not sure where Barry was born and we have a reasonable suspicion Barry identified himself as an Indonesian on his Occidental College admission form. We know he traveled as a refugee from Indonesia to America in the early 70’s. Let’s proceed to discovery so we can put this issue to rest and move on.

  14. avatar
    SvenMagnussen May 26, 2009 at 2:51 pm #

    And you know this because … why?

    Modified images of yearbook photos on the net?

    Rep. Neil Abercrombie (D-HI) comes out says he knew and remembered Barack Obama Sr. and doesn’t recall Sr. ever mentioning a wife or a child in Hawaii.

    That’s a controversy. Don’t be afraid of discovery. Let’s get the evidence into court and prove me wrong.

  15. avatar
    Dr. Conspiracy May 26, 2009 at 2:56 pm #

    I have no reason to think that the Indonesian school is anything other than what Obama’s stepfather self-declared.

    Neither the place of birth or the nationality is the “location of a student’s records”. “My records, oh, they are in Indonesia”. That helps a lot! And if your supposition is true then the box that says Indonesian means nothing more than a previous school location. So much for nationality.

    We are absolutely certain from 4 independent sources where Obama was born, and there is nothing but unsupported and monumentally implausible speculation (imagination, fantasy) that Obama registered as an Indonesian at Occidental College. And your “refugee” claim is (if that were possible) nuttier than the rest.

    Let’s have some proof or some quiet. After a while insanity gets irritating.

  16. avatar
    NBC May 26, 2009 at 2:59 pm #

    So, we’re not sure where Barry was born and we have a reasonable suspicion Barry identified himself as an Indonesian on his Occidental College admission form. We know he traveled as a refugee from Indonesia to America in the early 70’s. Let’s proceed to discovery so we can put this issue to rest and move on.

    His COLB clearly shows Honolulu as his place of birth. There is NO evidence that Obama declared himself to be an Indonesian on his admission form and there is NO evidence that he traveled as a refugee.
    Are you not interested in at least presenting the truth of what is known?

  17. avatar
    NBC May 26, 2009 at 3:02 pm #

    Modified images of yearbook photos on the net?

    More nonsense from our fact-impaired friend.

    And there is no controversy. Good luck getting your ‘evidence’ into court.

    Will never happen, not even if you are making up ‘evidence’

  18. avatar
    dunstvangeet May 26, 2009 at 3:02 pm #

    Sven, you’re fighting the wrong battle. Proving that Obama is an Indonesian doesn’t nullify anything. Like I said, according to Perkins v. Elg (1933), the fact that the parents did something such as became Indonesian citizens does nothing to nullify any citizenship of any child.

    Claiming that Obama is an Indonesian Citizen has about to do with the status of his current citizenship as saying that you had a Banana for breakfast today. The law is not on your side, even if you were proven correct. If Obama was born a citizen, nothing that he can do will relinquish his citizenship until the point that he reaches majority (18 or 21. Not sure which).

    So, whatever happened when he was 10 has no bearing on whether or not he is a citizen now.

  19. avatar
    ballantine May 26, 2009 at 3:02 pm #

    Actually, like all papers I’ve seen along these lines, he makes lots of assertions that are contrary to historical fact. What Mason was most likely referring to was that there was no federal common law. It is simply a historical fact that following the Declaration all states adopted the common law and such acts of parliament that had been adopted in the colonies prior to the Declaration. I count 7 by constitution, 3 by statute, the rest by judicial fiat. Pretty easy to look up but, for example, see James Kent, William Hardcastle Browne, Commentaries on American Law, pg. 212 (1894):

    “The Revolution did not involve in it any abolition of the common law. It has been adopted or declared in force by the constitutions of some of the states, and by statute in others; and where not explicitly adopted, it is yet considered as the law of the land, subject to modifications and express legislative repeal. The common law of England, applicable to our situation and government, is the law of this country, except where altered or rejected by statute, or varied by local usages, under the sanction of judicial decisions.”

    P.A. is correct that native citizenship was left to the states to define as the constitution only gave the power of naturalization, which, by definition, applies only to aliens. Yes, the courts were “forced courts to adjudicate citizenship disputes under common law rules” because the states had adopted the common law and decided not to alter it, so it WAS the law. Duh! Is this guy really a lawyer. To my knowledge only Virginia altered the common law early on and, yes, they allowed for both citizenship by locality of birth and by parentage at the time of the convention. Their 1783 law can be found here:

    http://vagenweb.org/hening/vol11-16.htm

    So, can P.A. actually point out when and in what state the legislatures decided to alter the common law they adopted? Or is he arguing that America had somehow abandoned the common law doctrine and just all the legislatures, courts and legal scholars didn’t get the memo. Can he cite a case prior to 1866 that doesn’t follow the common law rules (or the applicable state’s adoption of acts of parliament altering the common law)? I haven’t seen any. I guess the Supreme Court didn’t get the memo in McCreery v. Somerville (found the common law rules prevented a native citizen from inheriting through her alien father), or Justice Marshall didn’t get the memo in The Charming Betsy (defining citizens as born in the United States or naturalized) or Justice Story in Inglis v. Sailors’ Snug Harbor (same common law rules applies before and after Declaration with citizen substituted for subject). I guess St. George Tucker, James Kent, William Rawle, the Bouvier Law Dictionary, James Wilson, Nathan Dane, Justice Curtis, or Justice Swayne and pretty much every commentator and treatise writer prior to 1866 also didn’t get the memo.

    I guess Horace Binnney, in 1854, didn’t get the memo when he petitioned to extend citizenship of children of citizens born oversees, as they were not citizens under the common law. In his view:

    “The common law principle of allegiance was the law of all the States at the time of the Revolution and at the adoption of the Constitution, and, by that principle, the citizens of the United States are, with the exceptions before mentioned, such only as are either born or made so, born within the limits and under the jurisdiction of the United States or naturalized by the authority of law, either in one of the States before the Constitution or, since that time, by virtue of an act of the Congress of the United States. The right of citizenship never descends in the legal sense, either by the common law or under the common naturalization acts. It is incident to birth in the country, or it is given personally by statute. The child of an alien, if born in the country, is as much a citizen as the natural born child of a citizen, and by operation of the same principle.” Horace Binney, American Law Register, 2 Amer. Law Reg.193, 203, 204, February, 1854.

    I guess the author of clearly the most influential constitutional work of the reconstruction era didn’t get the memo:

    “All persons born in the allegiance of the King are natural-born subject, and all persons born in the allegiance of the United States are natural-born citizens. Birth and Allegiance go together. This is the rule of the common law, and it is the common law of this country as well as of England. There are tow exceptions, and only two exceptions, to the universality of its application. The children of ambassadors are, in theory, born in the allegiance of the powers the ambassador represent and slaves, in legal contemplation, are property and not persons.” George Washington Paschal, THE CONSTITUTION OF THE UNITED STATES DEFINED AND CAREFULLY ANNOTATED, pg. 274 (1868)

    I can go on and on and cite similar authority all day, as anyone who honestly looked at the history would be struck by how one-sided the authority is. P.A.’s few citations make clear the weakness of his case. A congressional quote 75 years after the founding by a congressman (Bingham) well known for kooky constitutional views (see, for example, the father of modern originalism, Raoul Berger, Government by Judiciary, 134-56 (1978))is pretty weak authority especially when the chairman of the house judiciary committee contradicted him citing authority and Bingham said nothing. Or his cite of Tucker which clearly states that the president must be native born (a term of art there is no dispute meant born within the United State) and hence actually makes the case against him. He also fails to mention that in the same work Tucker favorable quotes a historian defining “natural born citizen” as one born within the states. His few congressional quotes are hardly compelling, as many such quotes to the contrary can be found. Congressmen, who sometimes are not legally trained, are often not constitutional experts and their opinions are rarely given much weight.

    The fact is P.A. makes no mention of all the early statutes, courts, scholars, treatises, legal dictionaries that contradict him and can cite no significant authority to support his position, particularly around the time of the founding. This is clear from Wong Ark Kim where the majority cites authority after authority and the dissent can cite no direct authority at all.

  20. avatar
    Black Lion May 26, 2009 at 3:06 pm #

    Sven, so your theory is that this school administrator put down Indonesian for citizenship and got that right, but when she filled out birthplace as Honolulu, she got that wrong? Wow…That is an extreme coincidence…The document that you are using to claim Indonesian as Obama’s ctizenship is either completely correct, or not correct at all. However since there has been additional evidence presented to show Honolulu as his birthplace, but no other evidence provided to show Indonesian citizenship, then it would seem more likely that Honolulu is his place of birth. If you are going to use a document as evidence, you cannot pick and choose what parts are correct and are not correct. Additionally how did he travel to Indonesia in the first place? He would have needed a passport to go to Indonesia. So how could he have been a refugee or a citizen of Indonesia if he had not been there yet? Again your theory does not make sense once you examine it. So from Junior and High school he was Barry Obama but when he applies to college he will all of a sudden be Barry Sortero? Additionally do you have any supporting evidence for your new theory about him being a refugee. If I recall a couple of weeks ago your theory was that he was issued a non-citizen diplomatic passport and was pushing that idea until Dr. C, NBC, Kimba, Gordon, and others showed you proof that could not happen.

  21. avatar
    Dr. Conspiracy May 26, 2009 at 3:16 pm #

    P. A. Madison, to the best of my knowledge, is not a lawyer nor has any notable academic credentials. It may not even be his real name.

  22. avatar
    Black Lion May 26, 2009 at 3:16 pm #

    Actually other students have come out and stated that Obama did go to High School with them. There has been no documnted proof that Obama was adopted, a citizen of any other country other than the US, or that he was born elsewhere. However there has been proof provided that he was born in Honolulu and is a US citizen. It is really amazing how people will believe something so far fetched than the actual evidence which is right there in front of them. There will never be a court case. All of your comments reference that but since there is no REAL evidence provided to refute the facts that Obama was born in the US, no one will ever gain standing to compel Obama to provide records to prove something he has already done.

  23. avatar
    kimba May 26, 2009 at 3:17 pm #

    HA! So you admit you need the discovery process to get the evidence you need to support your case. You do understand that’s not how our justice system works when you are the plaintiff, don’t you? You still haven’t mentioned any real admissible evidence. Your two examples are your opinion about yearbook pictures and an incorrect story about Abercrombie. He knew them both. In Hawaii. Hardly evidence, not even facts.
    http://www.time.com/time/nation/article/0,8599,1729524-3,00.html
    You must do better if you want to get past a motion to dismiss. “We’re sure we could prove it your honor if you’d just let us discover it” won’t work.

  24. avatar
    richCares May 26, 2009 at 3:22 pm #

    “That’s a controversy”
    “Modified images of yearbook photos on the net?”
    I am from Hawaii and I have a yearbook from Punahou and it proves you are an idiot! Your Neil Abercrombie story is false, he said the opposite, check it : http://en.wikipedia.org/wiki/Neil_Abercrombie

    Quote “There he attended classes with and befriended future United States Senator and current United States President Barack Obama’s parents, Ann Dunham and Barack Obama, Sr.[2] As a result, Abercrombie is the only member of Congress to have met Barack Obama when Obama was a child.”

    no need for proof, this issue is over, Obama is the president. Why don’t you find someone to campaign for in 2012!

    You are so easily mislead, or are you the liar!

  25. avatar
    Dr. Conspiracy May 26, 2009 at 4:01 pm #

    Wow! Your comment has been very informative, and helped me correct some sloppy bits in my article made as I was falling asleep last night.

  26. avatar
    jtx May 26, 2009 at 7:26 pm #

    Sort of like Dr. Conspiracy, eh???

  27. avatar
    Dr. Conspiracy May 26, 2009 at 7:29 pm #

    That’s right. I am not a lawyer (although some of the commenters here are). I don’t have any relevant academic credentials (my Masters Degree is in Mathematics) and my real name is not Dr. Conspiracy.

  28. avatar
    Dr. Conspiracy May 26, 2009 at 7:36 pm #

    See Sven, this is why it’s impossible to debate you. You simply discount every piece of evidence presented as a matter of course (e.g. modified yearbook photos). If you start with absolute certainty that Obama is ineligible, and judge everyone and everything by that belief, then there is no chance you will ever change your mind.

    You’ve already been proven wrong. All the court discovery would do is uncover more evidence that you will call forged, or testimony you will call lies. The more evidence presented, the bigger you will inflate the range of people involved in the cover up and the power of the fear you will claim Obama exerts over others.

    It’s a total waste of time for folks like you.

  29. avatar
    Gordon May 27, 2009 at 12:27 am #

    Sven you are losing it. There are plenty of people in HI who remeMber Obama. He was on his high school basket ball team. Hell I’m older than Obama and I remember everybody who was on my high school basketball team.

  30. avatar
    Expelliarmus May 27, 2009 at 2:28 am #

    Various links of interest:

    Quotes with college & high school friends of Obama, including Keith Kakugawa:
    http://www.nytimes.com/2008/02/09/us/politics/09obama.html

    Quotes from unidentified female high school friend:
    http://helpmejoseph.typepad.com/charlotte_front_and_cente/2008/10/obamas-high-sch.html

    Obama’s high school basketball teammates & coach:
    http://abcnews.go.com/Nightline/Story?id=3082803&page=1

    Obama’s high school friends, talking to reporters at the inauguration:
    http://www.usnews.com/blogs/washington-whispers/2009/01/21/telling-tales-from-president-obamas-high-school-days.html

    And the jackpot, a whole book: “Our Friend Barry, Classmates’ Recollections of Barack Obama and Punahou School” by Constance Ramos, which can be previewed here:
    http://www.lulu.com/content/4216339

    *******************
    One of the stupider things that birthers do is frame arguments along the lines of “how come there is no X” when a Google search for the missing “X” immediately turns up hundreds of hits.

  31. avatar
    jtx May 27, 2009 at 10:25 am #

    Really, kimba, you shouldn’t refer to the O-borter as a “Mole”. That’s disrespectful of all Moles …

  32. avatar
    jtx May 27, 2009 at 10:34 am #

    WKA certainly never “explored” the natural born citizen thingy but I do hope that the O-borter fans and barristers DO use WKA in the upcoming court action. That may help to finally trash it completely since it is bad law and not at all dispositive of the nbc issue.

    When Bam Bam gets to have his turn in the box in court it will be interesting to see the shenanigans from the “shenanigan meister” and how long they’ll succeed in delaying things kbut that will, at least, help wake up some of you Americans to the fact that we have an ineligible man sitting behind the Resolute Desk with his finger on the nuclear button (and his hand in our bank accounts to boot – a very dangerous situation).

  33. avatar
    jtx May 27, 2009 at 10:41 am #

    No Doc,

    There’s actually a very good legal case to be made that the O-borter was an Indonesian citizen. You’d better “research up” on Indonesian law of that time since you obviously haven’t.

    That will, however, all come out in the court case so perhaps you might spare your brain that pain. It makes a very interesting tale as to how the O-borter has “fooled” (more like lied to – called fraud) millions of people including many on this blog I note.

    When he’s found to be ineligible will you all publicly apologize on this blog?? I’d do that if I were you … assuming that you have a conscience. I have a consciuence and would publicly say I was wrong if he is found to be eligible (but I’d still call Bam Bam the O-borter).

  34. avatar
    jtx May 27, 2009 at 10:46 am #

    Don’t be funny Doc – 4 “independent sources my foot. Not even Bam Bam probably knows where and under what circumstances he was born … nor does anyo9ne else until we obtain some probitive evidence (BTW that’s not “prima facie”) in court.

  35. avatar
    jtx May 27, 2009 at 10:50 am #

    This blog is not a court of law and the “evidence” is not that at all from a legal standpoint. Much of it, in fact, is more like heresay.

    But stick in there kissing up to Bam Bam – maybe he’ll appoint you to SCOTUS after he gets the present questionable nominee emplaced (who may have lesser legal ability that do you).

  36. avatar
    NBC May 27, 2009 at 11:17 am #

    WKA certainly never “explored” the natural born citizen thingy but I do hope that the O-borter fans and barristers DO use WKA in the upcoming court action. That may help to finally trash it completely since it is bad law and not at all dispositive of the nbc issue.

    And yet WKA explicitly mention the natural born citizen status more than once.
    I understand that you consider it bad law because it, and other decisions all disagree with your beliefs.

    4 more years… Time to get used to it jtx because a lack of standing, which caused the demise of many of the 40+ dismissed lawsuits, will continue to haunt the few remaining lawsuits.

  37. avatar
    NBC May 27, 2009 at 11:19 am #

    There’s actually a very good legal case to be made that the O-borter was an Indonesian citizen. You’d better “research up” on Indonesian law of that time since you obviously haven’t.

    In fact, Doc has done more research in this area to show that Obama could not have gained Indonesian citizenship under Indonesian law and that Obama could not have lost his natural born citizenship due to the actions of his parents.

    Lot’s of empty words my dear JTX all to hide that you have no case, no evidence, no facts.

    Isn’t that too bad 🙂

  38. avatar
    NBC May 27, 2009 at 11:25 am #

    This blog is not a court of law and the “evidence” is not that at all from a legal standpoint. Much of it, in fact, is more like heresay.

    It’s the hearsay which makes the case of those who want to remove a sitting, elected President so extremely weak. There is no real evidence to support their case.
    The evidence from the enlightened side includes a legally admissible document which shows Obama born in the US (COLB), and birth announcements in two newspapers.

    Born in the USA, thus natural born. Case closed. Not much more is needed to make the case.

    The lack of any real evidence from people like jtx, who’d rather speculate about what may have been the case, in spite of the evidence, shows why even if they managed to gain standing, their case will be based on pure hearsay at best and no evidence.

    Which is why they insist on discovery of many documents in the hope they may find something embarrassing.
    Luckily the Constitution protects us from such actions by plaintiffs.

    So get used to it, your side lost the elections, the people have spoken. Now it’s time for great things.

    Good luck my friend. I understand your ‘losses’ and how you may feel.

  39. avatar
    NBC May 27, 2009 at 11:30 am #

    All the evidence shows that he was born in Honolulu. That’s all that matters. And I assume that you mean probative? I understand that these legal terms may cause you some troubles.

    Oh and the COLB is both prima facie as well as probative. And unlike much of the evidence from doubters, the document is admissible in court.

    Bummer eh?

  40. avatar
    NBC May 27, 2009 at 11:39 am #

    What is fascinating is how JTX stays away from any specific examples. What is even more fascinating is how recently various people have made assertions about Obama which have all been shown to be, well lets call it, a little at odds with the truth.

    Is that the best the other side has to offer? Empty speculation, insults, name calling… At this rate the 7 stages towards recovery will take a long long time.

  41. avatar
    Black Lion May 27, 2009 at 11:50 am #

    jtx, you do realize that it will never be in a court of law nor will “Bam Bam take is turn in the box”…Again only Congress can remove a sitting president…Something you guys always seem to forget…

  42. avatar
    JeffSF May 27, 2009 at 12:08 pm #

    Off the topic, but just can’t let this one slip by:

    “to SCOTUS after he gets the present questionable nominee emplaced (who may have lesser legal ability that do you).”

    Have you even read anything about Sotomayor?
    graduated summa cum laude from Princeton
    served as an editor of Yale Law Journal
    5 years as a Assistant DA in Manhattan
    Appointed to the Federal Bench by President Bush #1.
    Has been confirmed by the Senate twice already.
    Has been on the Court of Appeals for 10 years.

    I defy you to compare her experience to any sitting Supreme Court judge. You may disagree with her decisions- as I do with almost all of Scalia’s, but she is more than just qualified, she is damn impressive.

    I really hope the GOP slams her hard. It will certainly put more nails in their coffin, driving away both women and latino voters. And it will all be for nothing- because they can’t stop her confirmation.

  43. avatar
    NBC May 27, 2009 at 12:36 pm #

    Have you even read anything about Sotomayor?

    Remember that in doublespeak, questionable means: well informed, well educated, well established, well respected. Perhaps we have grown used to the misfortunes of previous elections…

  44. avatar
    Dr. Conspiracy May 27, 2009 at 12:54 pm #

    Specifically, what in Wong Kin Ark do you find bad (not that you´ve read it)?

  45. avatar
    Dr. Conspiracy May 27, 2009 at 12:55 pm #

    jtx: There’s actually a very good legal case to be made that the O-borter was an Indonesian citizen. You’d better “research up” on Indonesian law of that time since you obviously haven’t.

    I wrote a whole article here on Indonesian citizenship law. You, on the other hand, know nothing, obviously.

    You have no facts, no evidence, no credibility.

  46. avatar
    Dr. Conspiracy May 27, 2009 at 12:55 pm #

    Dream on.

  47. avatar
    Dr. Conspiracy May 27, 2009 at 12:58 pm #

    Without supporting facts, your comment is less than useless.

  48. avatar
    Ian Gould May 27, 2009 at 1:52 pm #

    “Shouldn’t we respect Mr. Soetoro’s proclamation. As a refugee fleeing the turmoil of Indonesia in the early 70’s and returning to his homeland in the early 80’s and the freely choosing not to become a naturalized US citizen, then I think it is important for Americans to recognize the choice Barry has and stop imposing the doctrine of birthright by place.”

    What turmoil would that be exactly?

    The violence following the 1967 coup was well and truly over by 1971 and Lolo Soetoro was starting his lucrative career as an oil company executive.

    Ann Dunham returned to Indonesia in 1972 and stayed there until 1977.

    Do you actually know anything about Indonesian history or are you simply making nonsense up to support your predecided views?

  49. avatar
    Ian Gould May 27, 2009 at 1:53 pm #

    Correction – I misread my source – Ann Dunham left Indonesia in 1972 not 1977.

  50. avatar
    NBC May 27, 2009 at 1:55 pm #

    Do you actually know anythign abotu Indonesian history or are you simply making nonsense up to support your predecided views?

    Can I answer this question? Please Please… 🙂

    It’s self evidence I’d say.

  51. avatar
    James May 27, 2009 at 9:08 pm #

    Madison and all cases dealing with citizenship, referred to ORDINARY citizens. No court has ever discussed the “Natural Born” Citizenship term in terms of the POTUS. The POTUS has different stature, powers and abilities which are different from that of an ordinary citizen.

  52. avatar
    NBC May 27, 2009 at 9:25 pm #

    The cases may refer to ordinary citizens but the courts discussed clearly that natural born citizens are equivalent to native born citizens, with minor exceptions such as children born to invading military, children born to ambassadors.
    The POTUS is covered by the same constitution which makes anyone born in the US a natural born citizen.

  53. avatar
    Zuzu May 28, 2009 at 11:03 am #

    Ah yes, the Rufus King quote about “double allegiance.” I actually posted a long comment about that same quote over at Salon awhile back:

    https://letters.salon.com/politics/war_room/2009/04/01/birthers/permalink/f4d0d2c68801ec8c7205536632ea6424.html

    Thanks to Dr. C. providing a link to the entire piece written by Mr. King, we see that, contrary to what P.A. Madison implies, Mr. King was NOT talking about conferring natural-born status on the children of foreigners, but about conferring citizen status on almost anyone who happened to be living in the country when the Constitution took effect:

    By the construction insisted on every foreigner who before the new constitution and after the adoption of the Confed. came into this country and resided here a term, though not exceeding 8 months, became a citizen of the US. To such who did not desire this character such a law would be embarrassing – to those, on the other hand, who did, the law would prove highly convenient, since no expence, trouble, delay nor oaths were required; while a provision so extensive, and so easily and economically to be employed was in existence .

    The Life and Correspondence of Rufus King , p. 536

    http://books.google.com/books?id=9GEsAAAAMAAJ&dq=%22member%20of%20the%20body%20politic%22%20%22rufus%20king%22&pg=PA536&ci=220,176,735,720&source=bookclip

  54. avatar
    Bob Longfellow August 4, 2009 at 4:30 pm #

    Interesting Wong Kim Ark court upheld the meaning of “subject to the jurisdiction” found in Elk. I think Paul Madison has the better argument here.

    I think Zuzu is deliberately clouding the Rufus King quote. Madison is obliviously addressing the distaste for double allegiances no matter how acquired.

  55. avatar
    Bob Longfellow August 4, 2009 at 4:40 pm #

    “‘Not owing allegiance to anybody else’ which was part of the debate of the Civil Rights Act of 1866 to be misleadingly associated with the debate over the 14th Amendment.

    Actually that is not correct. Trumbull and Howard’s comments about not “Not owing allegiance to anybody else” was directly aimed at the citizenship clause meaning under the 14th amendment while being debated in the senate.

  56. avatar
    Greg August 4, 2009 at 5:03 pm #

    Here’s the definition of “subject to the jurisdiction” in Wong Kim Ark:

    “Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.”

    That doesn’t seem like it’s upholding Elk, it seems like it’s limiting the holding there to Indians.

  57. avatar
    Dr. Conspiracy August 4, 2009 at 5:24 pm #

    Mr. Longfellow, the remarks in my article were checked against original sources. If you are making a claim that there is an error, please state the specific quotation and a link to the original source it comes from.

    I get too many spurious claims on this web site to chase them all down.

  58. avatar
    Dr. Conspiracy August 4, 2009 at 5:30 pm #

    You sound like someone who has not read the Wong decision yourself. The majority quoted Justice Storey:

    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.

    and the Court said:

    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 — both of which, as has already been shown, by the law of England and by our own law from the time of the first settlement of the English colonies in America, had been recognized exceptions to the fundamental rule of citizenship by birth within the country.

    and

    Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States.

    P. A. Madison misrepresents his sources. His argument only sounds better because he cheats.

  59. avatar
    Bob Longfellow August 4, 2009 at 7:05 pm #

    Dr. Conspiracy says: “You sound like someone who has not read the Wong decision yourself. The majority quoted Justice Storey: 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.”

    Was Story talking about British allegiance to the crown there? Allegiance under common law was a personnel allegiance owed to the King himself.

    The Wong Kim Ark court said the meaning of “subject to the jurisdiction” had been adjudicated in Elk v. Wilkins: “The only adjudication that has been made by this court upon the meaning of the clause, and subject to the jurisdiction thereof,’ in the leading provision of the Fourteenth Amendment is Elk v. Wilkins.”

    J. Gray writing for the majority in Elk 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. And the words relate to the time of birth in the one case, as they do to the time of naturalization in the other. Persons not thus subject to the jurisdiction of the United States at the time of birth cannot become so afterwards except by being naturalized, either individually, as by proceedings under the naturalization acts, or collectively, as by the force of a treaty by which foreign territory is acquired.”

    Gray never says this was a mistake or the court was in error.

    Dr. Conspiracy says: “Mr. Longfellow, the remarks in my article were checked against original sources. If you are making a claim that there is an error, please state the specific quotation and a link to the original source it comes from.”

    Yes, I am making a claim of error: See page 2893 of the Cong. Globe, 39th Congress 1st sess. (1866). Sen. Trumbull: What do we mean by “‘subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.” He could never had been talking about the civil rights bill of 1866 as you suggest because that bill did not include the phrase “subject to the jurisdiction of the United States.”

    And BTW, your James Madison quote in the House of Representatives in May of 1789 is deeply flawed. You should had includded this remarks by James Madison at the same time: “It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us.” He is saying the laws of the states define such cases and not the federal government.

    This is what NY had done to overturn the court case of Lynch v. Clarke.

  60. avatar
    Greg August 4, 2009 at 8:38 pm #

    Here’s the decision:

    http://www.law.cornell.edu/supct/html/historics/USSC_CR_0169_0649_ZO.html

    I recommend you read it again. You are correct that he does say that Elk made that statement, but he then spends the next 30 paragraphs explaining why it is not the correct rule and should only apply to Indians.

  61. avatar
    Greg August 4, 2009 at 8:41 pm #

    Lynch v. Clarke looked at the common law of New York AND the United States in general and found that there was a Federal common law and that it was in accord with state common law both of which followed the British model.

  62. avatar
    Dr. Conspiracy August 4, 2009 at 11:01 pm #

    Longfellow: Allegiance under common law was a personnel allegiance owed to the King himself.

    Oh very good! I would add to that when we say “king” in this context, we are talking both about the “crown” as an institution and as the king as an individual. To illustrate, when James VI of Scotland became James I of England, those Scotsmen born during his reign in Scotland after his accession to the throne of England became natural born subjects of England (Calvin’s Case, 1608) upon his accession to the English throne. But at the same time the entire population of England did not become alienated when James I died and a new monarch was crowned. Allegiance is a two-way relationship: the King provides protection to his subject, and the subject owes allegiance to the monarch. The king provides protection within his realm, and this is why those who are born within that realm are his natural born subjects.

    Longfellow: The Wong Kim Ark court said the meaning of “subject to the jurisdiction” had been adjudicated in Elk v. Wilkins: “The only adjudication that has been made by this court upon the meaning of the clause, and subject to the jurisdiction thereof,’ in the leading provision of the Fourteenth Amendment is Elk v. Wilkins.”

    Perhaps a better citation of Elk from the Wong opinion to begin this discussion is this:

    The meaning of [subject to the jurisdiction thereof 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;”

    But we mustn’t stop there, because the opinion goes onto show that the children of aliens born in the US fully meet this criteria by considerable argument, including this from Chief Justice Marshall:

    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.

    (One notes this powerful statement flies in the face of those who claim that the British Nationality Act of 1948 dilutes President Obama’s allegiance to the United States at birth.)

    It is precisely on this point, the completeness of US jurisdiction over aliens within the territory of the United States, upon which the Court decided the case in favor of Wong.

    The Wong court concludes: “The decision in Elk v. Wilkins concerned only members of the Indian tribes within the United States, and had no tendency to deny citizenship to children born in the United States of foreign parents.” This explanation of jurisdiction sheds light on how some misunderstand Elk.

    Longfellow: Yes, I am making a claim of error: See page 2893 of the Cong. Globe, 39th Congress 1st sess. (1866). Sen. Trumbull: What do we mean by “’subject to the jurisdiction of the United States’? Not owing allegiance to anybody else. That is what it means.” He could never had been talking about the civil rights bill of 1866 as you suggest because that bill did not include the phrase “subject to the jurisdiction of the United States.”

    My quotation from P. A. Madison is:

    Whatever might had been the correct understanding of “natural-born citizen” prior to 1866, the adoption of the Fourteenth Amendment certainly changes the view because for the first time we have a written national rule declaring who are citizens through birth or naturalization. Who may be born citizens is conditional upon being born “subject to the jurisdiction” of the United States – a condition not required under the common law. The legislative definition of “subject to the jurisdiction thereof” was defined as “Not owing allegiance to anybody else.”

    We agree that the bits of quotation preceding do come from the Congressional Globe page from 1866 Mr. Longfellow cites. Before concluding whether this is from the debate on the Civil Rights act of 1866 or the 14th Amendment, it might be useful to restore a more complete version of the quotation:

    Of course my opinion is not any better than any other member of the Senate; but it is very clear to me that there is nothing whatever in the suggestions of the Senator from Wisconsin. The provision is, that “all persons born in the United States and subject to the jurisdiction thereof, are citizens.” That means “subject to the complete jurisdiction thereof.” Now, does the Senator from Wisconsin pretend to say that the Navajoe Indians are subject to the complete jurisdiction of the United States? What do we mean by “subject to the jurisdiction of the Unites States?” Not owing allegiance to anybody else. That is what it means. Can you sue a Navajoe Indian in court? Are they in any sense subject to the complete jurisdiction of the United States? By no means. We make treaties with them…. [the remainder of the section deals with Indians]

    I follow by asking the rhetorical question, could he sue Barack Obama, Sr while living in Hawaii? YES!

    But as to the question of error, I am in error. This quotation is from the debate over the 14th Amendment, and I have corrected the offending paragraph in my article.

    Longfellow: And BTW, your James Madison quote in the House of Representatives in May of 1789 is deeply flawed. You should had includded this remarks by James Madison at the same time: “It were to be wished, that we had some law adduced, more precisely defining the qualities of a citizen or an alien; particular laws of this kind have obtained in some of the States; if such a law existed in South Carolina, it might have prevented this question from ever coming before us.” He is saying the laws of the states define such cases and not the federal government.

    But if we are to expand the quotation, we would also have to admit (according to James Madison) that not all states (and not just South Carolina) had laws defining citizenship. If any state had a law requiring parents for citizenship, then perhaps Mr. Longfellow’s objection on this point would have some teeth.

  63. avatar
    Bob Longfellow August 5, 2009 at 5:18 am #

    Dr. Conspiracy says: “Oh very good! I would add to that when we say “king” in this context, we are talking both about the “crown” as an institution and as the king as an individual.”

    Its still a personal allegiance owed to an indivdial person (king or queen).

    Greg says: “I recommend you read it again. You are correct that he does say that Elk made that statement, but he then spends the next 30 paragraphs explaining why it is not the correct rule and should only apply to Indians.”

    Yes, Gray says:

    The words “in the United States, and subject to the jurisdiction thereof” in the first sentence of the Fourteenth Amendment of the Constitution must be presumed to have been understood and intended by the Congress which proposed the Amendment, and by the legislatures which adopted it, in the same sense in which the like words had been used by Chief Justice Marshall in the well known case of The Exchange and as the equivalent of the words “within the limits and under the jurisdiction of the United States,” and the converse of the words “out of the limits and jurisdiction of the United States” as habitually used in the naturalization acts.

    But Gray also says the “debates in congress are not admissible as evidence to control the meaning of those words.” He refers to the debates while also warning they inadmissable as evidence to control the meaning (a real kangroo court).

    Greg says: “Lynch v. Clarke looked at the common law of New York AND the United States in general and found that there was a Federal common law and that it was in accord with state common law both of which followed the British model.”

    I think they found the lack of law which forced them to look at englands common law. But New York made the court ruling moot when they did pass a law a few years later that fixed the problem the court found: “All persons born in this state, and resident within it, except the children of transient aliens, and of alien public ministers and consuls, etc.”

  64. avatar
    Bob Longfellow August 5, 2009 at 5:22 am #

    BTW Dr. Conspiracy, are you taking the same whacky position as Justice Gray and saying “subject to the jurisdiction” means two different things depending whether you are an alien or Indian?

  65. avatar
    Greg August 5, 2009 at 6:48 am #

    I think the better position is to conclude that Elk was incorrectly decided, although you can see how it is distinguishable on the facts as they were at the time.

    Indian tribes were pseudo-nations. Indians could not be tried in our courts. We dealt with them through treaties. They were un-taxed.

    Aliens could be tried in our courts. We dealt with them through our laws. They were taxed.

    As for Lynch v. Clarke, he did find that there was a lack of precedent directly on point, but he also found significant indirect precedent. See, page 250:

    http://tesibria.typepad.com/whats_your_evidence/Lynch_v_Clarke_1844_ocr.pdf

    “The legislative expositions speak but one language on this question. Thus the various acts on the subject of naturalization passed by Congress presuppose that all who are to be benefited by their provisions were born abroad.”

  66. avatar
    Greg August 5, 2009 at 6:58 am #

    It is universally understood that legislative history can, in the right circumstances, be persuasive, but is not, generally, controlling. Scalia rants about this subject all the time.

    Here’s just the first thing that pops up on Google when you search for Scalia and legislative history:

    http://www.princeton.edu/~lawjourn/Spring98/schmidt.html

    It gives a good sense of his disdain for such history. But, he will still reference it if it helps his case. He had no such qualms, for example, in Heller v. DC.

  67. avatar
    Dr. Conspiracy August 5, 2009 at 8:05 am #

    Bob Longfellow says: “Its still a personal allegiance owed to an indivdial person (king or queen).”

    If it is merely an individual allegiance, then why is it not dissolved when the individual dies? You might spend some time with Calvin’s Case.

    I don’t have any objection to debates in Congress being heard on this subject, so long as ALL the debate in Congress is heard. Trumbull says that his opinion is no more important than that of anyone else. There are others in the debate who talk about the children of aliens, specifically of the Chinese in California, anticipating the decision in US v Wong.

    In any case Lynch provides a sweeping and scholarly survey of the law and precedents, concluded that the children of aliens born in the US are citizens, and declared this to be the universal opinion of the legal community. And even if it were true that citizenship was decided by the states, that is certainly NOT true after the 14th amendment that drove a stake in the heard of racist citizenship legislation.

  68. avatar
    Bob August 5, 2009 at 11:03 am #

    And, of course, Elk ultimately was abrogated by changes in federal law.

  69. avatar
    Bob Longfellow August 5, 2009 at 9:18 pm #

    Greg, I think it was Wong that was incorrectly decided and not Elk. Elk is too much backed up the legislature debates and congressional acts following 1868.

  70. avatar
    Dr. Conspiracy August 5, 2009 at 9:26 pm #

    Like it or not, Wong has been established precedent for over 100 years. You’re not likely to get it overturned.

  71. avatar
    Bob August 5, 2009 at 9:34 pm #

    This also is Donofrio’s position. Which is an opinion, and not binding law.

  72. avatar
    Bob Longfellow August 5, 2009 at 10:34 pm #

    Over the last 40 years over 30 precedents have been rejected. Wong stands a good chance of biting the dust and returning to original meaning because it is riddled with errors and unworkable.

  73. avatar
    Bob August 5, 2009 at 10:40 pm #

    Wong stands a good chance of biting the dust and returning to original meaning because it is riddled with errors and unworkable.

    1. Show me the five the will overturn Wong Kim Ark.

    2. Have you read Plyler v. Doe?

  74. avatar
    Greg August 5, 2009 at 11:02 pm #

    You can think that all you want, but Scalia and Thomas are sticklers for history. Thomas, for example, cited Cuddihy’s unpublished treatise “The Fourth Amendment: Origins and Original Meaning, 608-1791” in a decision about knock-and-announce search warrants.

    [It’s actually published now: http://www.amazon.com/gp/product/0195367197%5D

    If this ever came before them, the Court won’t be nearly as cavalier about rejecting decisions like Lynch v. Clarke and Wong Kim Ark which track an unbroken chain of history from Calvin’s Case down through early colonial history.

  75. avatar
    Greg August 5, 2009 at 11:07 pm #

    Show me which of those 30 precedents had been cited almost 400 times with not a single case questioning its reasoning?

    As far as I can tell, not a single case has said that Wong Kim Ark was wrongly decided. A survey of the academic literature also finds near universal acceptance of the decision. A few commentators think its holding should be limited so that birthright citizenship should not be granted to illegal aliens, but they are a distinct minority.

    We’re not exactly talking Plessy v. Ferguson, here.

  76. avatar
    Bob Longfellow August 6, 2009 at 3:29 am #

    Why bother overturning Wong? The issue was really narrow and not as broad as being assumed here. The issue was simply whether citizenship could be withheld from parents of permanent residence in the United States who also are conducting business.

    Not like they ruled ANYONE is a citizen from being born.

  77. avatar
    Dr. Conspiracy August 6, 2009 at 7:54 am #

    The legal theory underpinning the denial of citizenship to President Obama, as we finally get to see, is engineered to deny citizenship to the children of illegal aliens, and indeed this is the thrust of P. A. Madison’s earlier article on the Federalist Blog (long before Obama ran for president).

    But it has been settled law for 100 years that these children are citizens, and natural born citizens. You cannot make Obama “not eligible” without making him “not a citizen” and not only him, but hundreds of thousands of others (which is of course the goal of this wing of the denialist party in the first place). Whether you agree or not, Wong has been considered precedent for exactly what you claim it is not. Further I would point out that while Wong’s parents were somewhat settled in the US, the law said that they could never become citizens (Chinese exclusion act — another bit of nasty racism in our country’s history), and they eventually returned to China.

    Nothing that I can see in the Wong decision makes any distinction as to the length of stay of an alien parent, nor why “subject to the jurisdiction” is somehow diluted by the length of stay. One might stretch a point to exclude an illegal alien from jurisdiction (although I wouldn’t buy it), but not a foreign student in the country legally, such as Barack Obama Sr.

    So, please explain to me how President Obama was born less subject to the jurisdiction of the United States because his father was a student than if he were conducting business, or because he was here a few years instead of a few more. It seems to me that you are making a distinction without a difference.

  78. avatar
    Bob August 6, 2009 at 10:26 am #

    Again, have you read Plyler v. Doe? Your reading of Wong Kim Ark is inconsistent with Plyler?

    It is reasonable to believe that those cases were wrongly decided; it is unreasonable to ignore that they are binding.

  79. avatar
    Dr. Conspiracy August 6, 2009 at 3:45 pm #

    Following that logic, it only applies to Chinese people named Wong. But if you actually read the decision, it is clear that they were talking about ALL children born in the US except those persons who are explicitly exempted from our jurisdiction by law (e.g. families of ambassadors). [I am not asking for a public reply, but have you even READ the Wong decision?]

    The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes. The Amendment, in clear words and in manifest intent, includes the children born, within the territory of the United States, of all other persons, of whatever race or color, domiciled within the United States. Every citizen or subject of another country, while domiciled here, is within the allegiance and the protection, and consequently subject to the jurisdiction, of the United States. His allegiance to the United States is direct and immediate, and, although but local and temporary, continuing only so long as he remains within our territory, is yet, in the words of Lord Coke in Calvin’s Case, 7 Rep. 6a, “strong enough to make a natural subject, for if he hath issue here, that issue is a natural-born subject;” and his child, as said by Mr. Binney in his essay before quoted, “if born in the country, is as much a citizen as the natural-born child of a citizen, and by operation of the same principle.” It can hardly be denied that an alien is completely subject to the political jurisdiction of the country in which he resides….

    United States v. Wong Kim Ark 169 U.S. 649

  80. avatar
    Bob Longfellow August 10, 2009 at 6:45 am #

    Wong Kim Ark: The foregoing considerations and authorities irresistibly lead us to these conclusions: the Fourteenth Amendment affirms the ancient and fundamental rule of citizenship by birth within the territory, in the allegiance and under the protection of the country, including all children here born of resident aliens, with the exceptions or qualifications (as old as the rule itself) of children of foreign sovereigns or their ministers, or born on foreign public ships, or of enemies within and during a hostile occupation of part of our territory, and with the single additional exception of children of members of the Indian tribes owing direct allegiance to their several tribes.

    LOL how could they determine such a thing when “the debates in congress are not admissible as evidence to control the meaning of those words”? If they wanted to know what the Fourteenth Amendment affirms they need to consider the debates, which they don’t want to do because it calls them out as liars.

  81. avatar
    Bob Longfellow August 10, 2009 at 6:48 am #

    It is reasonable to believe that those cases were wrongly decided; it is unreasonable to ignore that they are binding.

    Only binding on those who wish for them to be binding.

  82. avatar
    Bob Longfellow August 10, 2009 at 6:50 am #

    Greg says: “Show me which of those 30 precedents had been cited almost 400 times with not a single case questioning its reasoning?”

    Are you suggesting Wong Kim Ark has been cited 400 times by the court?

  83. avatar
    Greg August 10, 2009 at 7:08 am #

    They didn’t say they were inadmissible. They said they weren’t admissible to control the meaning of the words. That means that, like Scalia, they consider the debates to be persuasive when used correctly.

    And the best (for your case) you can say about the Congressional debate is that there were people on both sides of the issue. This is how the court is able to quote Mr. Conness of California:

    “The proposition before us relates simply, in that respect, to the children begotten of Chinese parents in California, and it is proposed to declare that they shall be citizens. We have declared that by law; now it is proposed to incorporate the same provision in the fundamental instrument of the Nation.”

  84. avatar
    Greg August 10, 2009 at 7:14 am #

    I’m suggesting that when you Shephardize the case in Lexis, you find that it has been cited more than 400 times by the judiciary – Supreme Court, Federal Courts and State Courts.

    Two cases distinguished Wong, saying it didn’t apply to the cases at hand, but the rest were approving citations.

  85. avatar
    Dr. Conspiracy August 10, 2009 at 8:09 am #

    Noting that the Chinese were not citizens because of the Chinese Exclusion Act that existed at the time.

  86. avatar
    Dr. Conspiracy August 10, 2009 at 8:12 am #

    “Liar” is a pretty strong word for someone who, it seems, hasn’t read the entire debate. Of course if you HAD read the entire debate, then I guess you would be the ….

  87. avatar
    Bob August 10, 2009 at 10:33 am #

    Only binding on those who wish for them to be binding.

    So the law is not binding on you if you disagree with it?

    You may practice your hypothesis at your leisure.

  88. avatar
    Greg August 10, 2009 at 12:27 pm #

    As of today, Wong Kim Ark has been cited 678 times. And, I apologize, it has only been citd 297 times by the judicial system.

    38 times by the Supreme Court.
    207 times by lower Federal Courts.
    52 times by state courts.

    It’s also been cited:

    292 times by law review articles
    19 times by treatises

  89. avatar
    Dr. Conspiracy September 5, 2009 at 11:54 am #

    Please see new material in brackets added to the article.

  90. avatar
    Greg January 4, 2010 at 11:20 am #

    Anybody know more about PA Madison? I’m trying to figure out a taxonomy of opponents of birthright citizenship.

    There are those, like Judge Posner, who think that Congressional action could eliminate birthright citizenship for the children of illegal aliens.

    Slightly further along the scale are the professors who wrote “Citizenship without Consent,” Schuck and Smith, who think that illegal aliens do not become citizens.

    Then, there are those, like the Eagle Foundation and the Claremont Institute, who think that the children of illegal aliens or temporary workers do not become citizens.

    PA Madison falls further along the scale than even these folks in that he thinks that Wong was wrongly decided and the children, even of permanently resident aliens do not become citizens.

    Then, finally, at the far end, there are those, like the tax-evaders and white supremacists, who posit a distinction between “Preamble” citizens or natural-born citizens and 14th Amendment citizens.

    Looking at Madison’s original website, there seems to be some overlap between him and the last group. He has reciprocal links to minutemen and militia groups.

    Does anyone know what his story is?

  91. avatar
    bob January 4, 2010 at 12:31 pm #

    A PA Madison fanboy has repeated claimed that he was an archivist with the Library of Congress:

    http://volokh.com/2009/10/28/louis-brandeis-and-the-incorporation-doctrine/

    (Read the comments by J. Aldridge in this and other articles.)

  92. avatar
    Black Lion January 4, 2010 at 3:26 pm #

    Not sure if this helps but he has more articles where his legal conclusions are way out of the mainstream….

    http://federalistblog.us/2009/10/the_incorporation_debacle.html#more

    “Have you ever wondered why all the hullabaloo over judicially forcing the first eight amendments of the Federal Constitution to be applicable between a State and its own resident citizens even though the Constitution is completely silent on the subject? Can anyone for a moment ever imagine a single State — that alone ten or more States — willing to surrender their judicial authority over their own resident citizens within the limits of their State? There wasn’t a chance in a million of that ever happening.

    Those who strenuously embrace incorporation do so under the same general views as did an early architect of incorporation, Justice Hugo Black, namely because, Rep. John Bingham of Ohio who was the chief sponsor of the Fourteenth’s first section, referred to the “bill of rights” and the case of Barron vs. The Mayor and City Council of Baltimore during the congressional debates. Black interprets this as Bingham intending “to make the [entire] Bill of Rights, applicable to the states.”

    “The problem is this: The privileges and immunities of United States citizens under section two of the fourth article was never understood to have anything to do with any of the first eight amendments by either the founders, scholars or the courts. In fact, there were no bill of rights under the U.S. Constitution when the privileges and immunities of United States citizens was finally adopted under article four, section two, and when the first eight amendments became part of the Constitution, and no one claimed they had become privileges or immunities of United States citizens. For there to be any validity to these 1871 Bingham remarks he would had to have specifically declared in writing under section one of the Fourteenth Amendment that all of the first eight amendments are now privileges or immunities belonging not only to United States citizens, but also citizens of the States to have any far reaching affect.”

  93. avatar
    Dr. Conspiracy January 4, 2010 at 4:00 pm #

    You might want to look at Mayton’s article, Birthright Citizenship & the Civic Minimum, for your taxonomy (and the web site it appears on).