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Is the natural born citizen argument over?

Walter Dellinger

Walter Dellinger

Somehow, with the dismissal of Kerchner v. Obama and the retirement of Leo Donofrio (yet again), it rather feels like the debate over the attempts to redefine “natural born citizen” have fallen off the radar, leaving Obama Conspiracy fans with little more than the Taitz/Smith/Lincoln soap 0pera for entertainment.

However, before closing the box and taping it shut, I wanted to mention something in more detail that has been briefly mentioned before, and that is the 1995 testimony before Congress of assistant attorney general Walter Dellinger. The preceding link will take the interested reader to the full text. I’ll include a substantive citation here.

Because the rule of citizenship acquired by birth within the United States is the law of the Constitution, it cannot be changed through legislation, but only by amending the Constitution. A bill … that purports to deny citizenship by birth to persons born within the jurisdiction of this country is unconstitutional on its face. Second, … constitutional amendments on this topic conflict with basic constitutional principles. To adopt such an amendment would not be technically unlawful, but it would flatly contradict our constitutional history and our constitutional traditions. Affirming the citizenship of African-Americans that Dred Scott had denied, in 1862 President Abraham Lincoln’s attorney general wrote an opinion for the secretary of the treasury asserting “[a]s far as I know … you and I have no better title to the citizenship which we enjoy than the ‘accident of birth’–”the fact that we happened to be born in the United States.” Today, in 1995, we cannot and should not try to solve the difficult problems illegal immigration poses by denying citizenship to persons whose claim to be recognized as Americans rests on the same constitutional footing as that of any natural-born citizen….

The Fourteenth Amendment declares that “All persons born or naturalized in the United States, and subject to the jurisdiction thereof, are citizens of the United States and of the State wherein they reside.” The unmistakable purpose of this provision was to constitutionalize the existing Anglo-American common law rule of jus soli or citizenship by place of birth and especially to extend it to persons of African descent and their descendants.

The phrase “subject to the jurisdiction thereof” was meant to reflect the existing common law exception for discrete sets of persons who were deemed subject to a foreign sovereign and immune from U.S. laws, principally children born in the United States of foreign diplomats, with the single additional exception of children of members of Indian tribes. Apart from these extremely limited exceptions, there can be no question that children born in the United States of aliens are subject to the full jurisdiction of the United States. And, as consistently recognized by courts and attorneys general for over a century, most notably by the Supreme Court in United States v. Wong Kim Ark, there is no question that they possess constitutional citizenship under the Fourteenth Amendment….

While the Constitution recognized citizens of the United States in prescribing the qualifications for President, Senators, and Representatives, it contained no definition of citizenship until the adoption of the Fourteenth Amendment in 1868. Prior to that time, citizenship by birth was regulated by common law. And the common law conferred citizenship upon all persons  within the territory of the United States, whether children of citizens or aliens. The only common law exceptions to this generally applicable rule of jus soli were children born under three circumstances –” to foreign diplomats, on foreign ships, and to hostile occupying forces –” which, under principles of international law, were deemed not be be within the sovereignty of the territory….

The Civil Rights Act of 1866 provides that “[A]ll persons born in the United States, and not subject to any foreign power, excluding Indians not taxed, are hereby declared to be citizens of the United States.” During the debates on the Act, the Chair of the House Judiciary Committee stated that the provision defining citizenship is “merely declaratory of what the law now is,” and he cited, among other authorities, a quotation from William Rawle, whose constitutional law treatise was one of the most widely respected antebellum works: “Every person born within the United States, its Territories or districts, whether the parents are citizens or aliens, is a natural-born citizen in the sense of the Constitution, and entitled to all the rights and privileges appertaining to that capacity.”…

The Court [in US v. Wong Kim Ark], in a detailed review of the Anglo-American common law of citizenship and the legislative history of the Fourteenth Amendment, established several propositions. First, because the Constitution does not define United States citizenship, it must be interpreted in light of the common law. Under the common law of England, which was adopted by the United States, every child born within the territory of alien parents was a natural-born subject, with the exception of children born of foreign ambassadors, of alien enemies during hostile occupation, and of aliens on a foreign vessel….

…More recently, the Supreme Court noted in Afroyim v. Rusk that the framers of the Fourteenth Amendment “wanted to put citizenship beyond the power of any governmental unit to destroy.” See also Rogers v. Bellei, 401 U.S. at 835 (recognizing that “Congress has no ‘power, express or implied, to take away an American citizen’s citizenship without his assent,'” where that citizenship is attained by birth). By excluding certain categories of native-born persons from U.S. citizenship, … legislation [to deny birthright citizenship to illegal immigrants] impermissibly rescinds citizenship rights that are guaranteed to those persons by the citizenship clause of the Fourteenth Amendment. Such a rescission of constitutionally protected rights is beyond Congress’ authority.

39 Responses to Is the natural born citizen argument over?

  1. avatar
    misha October 24, 2009 at 7:35 pm #

    Here is a likely scenario.

  2. avatar
    jvn October 24, 2009 at 9:55 pm #

    After judge Carter dismisses that case, it will really be all over.

    The birthers are drying up and beginning to blow away with the wind…

  3. avatar
    Bob October 25, 2009 at 4:18 am #

    I think you are being far too optimistic. Surf any birfer site and the two-citizen parent is still repeated as if it is the law.

    And since no birfer case will ever be decided on that issue, it’ll be around until 2012. Or 2016.

  4. avatar
    misha October 25, 2009 at 6:20 am #

    “Surf any birfer site and the two-citizen parent is still repeated as if it is the law.”

    Wait – it’s not?? Oh man, now what do I do? I made a bet for my baseball card collection with some dude named Lucas Smith.

  5. avatar
    sarina October 25, 2009 at 6:25 am #

    No this issue is not over. I know more than 5 stubborn bithers in YTube still saying that both parents need to be citizens or naturalized to be NBC,
    But I think they know, they just don’t want to admit it. I told them: Google “The Constitution on line, natural born citizen”.
    Good points on who are NBC and can run for president.
    It even mention a “a child found less than 5 yrs..” But these birthers don’t read they are blind with their own ignorance. (or they know and they don’t want to lose an argument)

  6. avatar
    MsDaisy October 25, 2009 at 6:40 am #

    This was a very good piece, thank you for all the hard work you put into it. But unfortunately for some, especially Taitz, there is nothing that will ever make her give up this fantasy that BO is illegitimate. She may even go so far as to concede the citizenship of a person born on US soil, but she, (like many others) will flatly refuse to accept that BO was actually born in Hawaii. If the entire medical staff from the doctor that delivered BO, down to the custodian that cleaned the room after his birth were to be rounded up and testify as 1st hand witnesses to his birth on US soil, they would still claim it to be a lie. Paid Obots, bought off by Chicago thugs, or some such nonsense.

    I think Judge Land was incorrect when he said Taitz was borderline delusional, I think she crossed that border a long time ago.

  7. avatar
    misha October 25, 2009 at 7:04 am #

    She’s a meshugana refusenik.

    Nothing more. That explains everything. And she is literally getting into bed with gentile grifters.

    What a bunch!

  8. avatar
    Dr. Conspiracy October 25, 2009 at 7:13 am #

    If not for WorldNetDaily, it would have dried up ages ago (IMO).

  9. avatar
    kimba October 25, 2009 at 9:00 am #

    I think once Judge Carter dismisses the current case, most of the remaining birthers will fold. All that will be left is the hard core. I think the “obama thesis” hoax was a huge blow to the right wingers. They spread it like gas on a wildfire and expressed unusual glee even for them at “having the goods” on Obama. That it was a hoax and they were punk’d spread even faster. I notice few attempts to walk it back or apologize for it, they are just pretending it didn’t happen. Like Barack once said “It kind of shuts you up, doesn’t it?” We should mock them loudly for falling for the hoax.

  10. avatar
    kimba October 25, 2009 at 9:09 am #

    And they’re off and running with the “H1N1 Emergency” story:

    “This declaration isn’t so hospitals can move off-site to keep swine flu-infected people from infecting patients in the hospital — it’s to set us up for Martial Law and FEMA control!”

    Everyone who refuses the vaccine will be sent to the FEMA camps! ( Yay, alright! Send the birthers first!)
    By the way, I had it, a mild case. Never a fever above 100 so I took one for team and stayed home and tended to myself. Very tired and achy. Easily dehydrated so if you get it, keep the water coming even if you don’t feel thirsty. Not the worst case of flu I ever had, but even after 2 weeks, still don’t have full energy back. I think Obots are given milder cases 😉

  11. avatar
    Con Rep October 25, 2009 at 9:54 am #

    I think NBC will always be the birther fall-back position for those who simply want to trash the Presidency and the judicial system, and who, like Orly, can never admit they’re wrong.

    Orly, though, appears to be in “Back to Africa” mode, with a Sunday morning funny filing on the Barnett docket, here and here. I guess she wasn’t listening, as usual, when Carter told Kreep on Oct. 5 he wasn’t accepting any more motions in the case.

  12. avatar
    jvn October 25, 2009 at 11:26 am #

    There will always be birthers, just like there are still 911 truthers, income tax deniers, and anti-anchor baby deniers.

    They tend to sit in corners and drool all over themselves and no one pays attention to them until they get into trouble.

    As noted with the stories about H1N1, some birthers are drifting back to their militia, anti-gubmint, black helicopter roots.

    Sadly for us, this party seems about over…

  13. avatar
    G October 25, 2009 at 11:34 am #

    I agree. I hope the Judge is able to issue his ruling soon, just to put this chapter of silliness to an end. The longer it takes for him to issue his ruling on the Motion to Dismiss just encourages the birthers to think they can endlessly submit meaningless document after document to the courts. Although entertaining, if I was the court, I’d be getting quite annoyed.

  14. avatar
    Mike October 25, 2009 at 2:05 pm #

    As an example, two new birther blogs:

    They basically rehash the same old crap as the rest, but it rather proves the point that the birthers aren’t going away, they’re just starting to be ignored…

  15. avatar
    JoZeppy October 25, 2009 at 2:12 pm #

    Holy Cow! Did you see the picture the person posted of herself in the first blog? What trailer park did she fall out of? If that’s the best picture she has of herself, I recommend not posting one. It’s not really helping her credibility.

  16. avatar
    wendy October 25, 2009 at 3:33 pm #

    IN a rational world, the issue would never have come up to start with. Reputable and competent attorneys know that they can research (and are expected to), and come up with a rational answer. Competent attorneys would understand WHY “law of nations” has no legal authority or bearing. (are you lurking, Mario?).
    Once many many courts have thrown it out.. you would think they might grasp that the Judges actually know something about the law.
    Unfortunately.. we are not talking about competent attorneys, or these cases would never have been filed to start with. And, I think the lawyers who HAVE FILED, will continue to let themselves be led around by the ignorant mob.

  17. avatar
    wendy October 25, 2009 at 3:37 pm #

    on one site… the answer to the thesis hoax…

    “well, if he would RELEASE the real thesis, we would not have this problem”.
    If people would live in the real world and not the Twilight zone, such stunts and hoaxes would not be popping up all over the place.

  18. avatar
    wendy October 25, 2009 at 3:40 pm #

    I agree that it isn’t going to disappear. The only explanation that some can come up with, is the Judge/ govt being corrupt, and as such, it “validates” them as patriotic to threaten violence or sedition.
    The concept that they got scammed from the beginning, is just too difficult for them to swallow.

  19. avatar
    milspec October 25, 2009 at 4:16 pm #

    That’s one butt ugly woman.

  20. avatar
    Dr. Conspiracy October 25, 2009 at 4:50 pm #

    I went to pinroot. It was awful. I left this message (which apparently was not moderated):

    I declare, I’ve not seen such a collection of hooey in a long time, starting with the fake media blackout on Obama’s birth certificate and ending with the fake millions he spent to conceal it, even though the current legal form of a Hawaiian birth certificate for Barack Obama was published by his campaign a year ago.

    Take a course in logic or critical thinking or something.

    For brain detoxification, click on my link.

  21. avatar
    Dr. Conspiracy October 25, 2009 at 5:03 pm #

    Unfortunately, there was no thesis (just a Senior paper) and nobody kept a copy. End of story.

  22. avatar
    Dr. Conspiracy October 25, 2009 at 5:06 pm #

    I’m sure she looks quite presentable when she’s sober.

  23. avatar
    Dr. Conspiracy October 25, 2009 at 5:11 pm #

    Hey, glad you survived. For some reason, I have never had the flu.

  24. avatar
    wendy October 25, 2009 at 5:14 pm #

    *screams with laughter*
    Hey, Dr. C! Orly can use your services. You already posted the originals of the stories. She needs DISCOVERY to do this??
    Legalese in Orly’s world-
    “the definition of judicial notice is another way to say, hey, Judge Carter…I don’t give a flying that you said, no more motions. I’m gonna file another copy of another hoax, and ask for what you already said I can’t have, and what should fall under “evidence”, except there has been no ruling as to if there is even a legal case to start with. So..I’ll try and sneak my hoax into the record by calling it something that it isn’t”.
    And then I’ll go on TV somewhere and complain that people are defaming me by calling me batshit crazy and incompetent.
    *rolls eyes*

  25. avatar
    Dr. Conspiracy October 25, 2009 at 5:39 pm #

    This is silly. Why involve the court? Orly can order copies of AP stories from for a few bucks. I verified that it’s there.

    Is she too cheap to spend $3?

  26. avatar
    Mary Brown October 25, 2009 at 5:50 pm #

    Me either but my obot son has it we think.

  27. avatar
    misha October 25, 2009 at 10:01 pm #

    I got the regular seasonal flu – picked it up at my doctor’s office!

    Tylenol and fluids, 36 hours.

    But then my rabbi called Emanuel on a secret number, and got me special treatment.

  28. avatar
    misha October 25, 2009 at 10:03 pm #

    A genuine copy of a fake Dior.

  29. avatar
    misha October 25, 2009 at 10:04 pm #


  30. avatar
    misha October 25, 2009 at 10:05 pm #

    Plus, it turns out, she is paying Lincoln with sex. Two grifters – I love it.

  31. avatar
    Robi October 26, 2009 at 1:04 am #

    Dr. Conspiracy: I’m sure she looks quite presentable when she’s sober.

    I’m afraid, however, that she doesn’t look so presentable when I am sober…

  32. avatar
    Mike October 26, 2009 at 8:27 am #

    The message got through, surprisingly.

  33. avatar
    Dr. Conspiracy October 26, 2009 at 3:07 pm #

    More evidence the NBC argument is over:

    I have 84 followers on Twitter. Apuzzo only has 65 Google Friends.

  34. avatar
    misha October 26, 2009 at 5:32 pm #

    “I’m afraid, however, that she doesn’t look so presentable when I am sober…”

    “But what if the children had my looks and your brains?” GB Shaw

  35. avatar
    mrlqban November 15, 2009 at 1:34 pm #

    Yes, so what, what the 14th amendment is saying that if you are born in the U.S., and are subject to the jurisdiction of the U.S. you are a citizen of the U.S. and the State.

    only Article II Section 1 talks about NBC in order to be President

    14th Amendement neither clarifies, reaffirms, defines, nor override Article II Sec 1. It has a life of it’s own.

  36. avatar
    Expelliarmus November 15, 2009 at 2:40 pm #

    It’s a simply syllogism. If “natural born citizen” means the same as citizen from birth, and the 14th Amendment specifies that all persons born in the US regardless of citizenship are citizens from birth — then all 14th amendment “born” citizens are also “natural born citizens”.

    An amendment to the Constitution is a change that impacts the meaning of the original text. So you have to read Article II in the context of the 14th Amendment.

  37. avatar
    mrlqban November 15, 2009 at 4:39 pm #

    I disagree with your logic because NBC is not just citizen from birth as I see it. It is more than that. This is a debatable subject.

    With that in mind, regardless, Natural born citizen is not defined in the Constitution, period, not by the 14th amendment, not by Article II sec 1. that’s my point. It is misleading into making people think that the definition is in the 14th Amendment.

    Also, no amendments can ever change the meaning of NBC as to the President’s requirements, that phrase and its original intention is there forever.

  38. avatar
    Greg November 15, 2009 at 5:30 pm #

    Let’s set aside the fact that no birther has given a good explanation of how natural born citizen was intended to set aside the 500 year old definition of natural born.

    Why couldn’t an amendment change the meaning of natural born citizen? What if the amendment said, “Natural born citizen will mean X?”

  39. avatar
    Expelliarmus November 15, 2009 at 7:20 pm #

    mrlqban: I disagree with your logic because NBC is not just citizen from birth as I see it. It is more than that. This is a debatable subject.

    It is not a legally debatable subject under the current status of US law. In order to be legally debatable, you would need to be able to cite some STATUTE or CASE LAW to support the argument — reference to historical treatises is irrelevant in a court of law. That’s why the courts keep labeling these cases as frivolous.

    It may be “debatable” in other contexts — but not within the court system. That is, there is no reason that a bill couldn’t be introduced in Congress to try to create a statutory definition. The bill itself would likely be subject to later court review — but at that point it would no longer be a frivolous claim because the bill itself would provide the basis for legal discussion or debate.