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The wit and wisdom of Emerich de Vattel

Emer de Vattel

Almost unknown in modern times, the 18th century Swiss jurist and philosopher Emerich de Vattel became an instant celebrity in 2008 when his book The Law of Nations (partial English title of Le Droit des Gens. ou Principés de la Loi Naturelle, Appliqués à la conduite & aux affaires des Nations & des Souverains) was discovered to contain the magic phrase “natural born citizen” in a context that involved citizen fathers, something President Obama doesn’t have. Despite the fact that the English edition of de Vattel’s book available when the Constitution was written doesn’t have the words “natural born citizen” nor has anyone outside of a few minority and dissenting court opinions cited de Vattel on the acquisition of citizenship, still he forms the backbone of Obama denialism based on the President’s British citizen father.

The denialists go very far in raising the importance of de Vattel and The Law of Nations. They describe it as the basis for the US Constitution, sitting at the hand of each Founder for reference. And some go so far as to believe that the words “The Law of Nations” that appear in the Constitution insert de Vattel’s entire 4-volume work into the Constitution by reference.

It seems to me that if this Swiss writer and his book is so foundational to all that is American, then perhaps we should get to know them better, and this article seeks to do that. Following are some interesting items from The Law of Nations. (For earlier articles on this subject, see: http://www.obamaconspiracy.org/category/whoswho/emerich-de-vattel/). The following should not be taken as sufficient to understand de Vattel’s complete thought on the subjects raised; it is a long work.

In the first example, we see that de Vattel would prohibit all of the anti-Obama blogs.

Book I

§ 114. Freedom of philosophical discussion.

I speak of the freedom of philosophical discussion, which is the soul of the republic of letters. … I know that liberty has its proper bounds –” that a wise government ought to have an eye to the press, and not to allow the publication of scandalous productions, which attack morality, government, or the established religion. [The Bill of Rights in the U. S. Constitution guarantees the right to freedom of speech, including criticism of the government and religion. I believe that WorldNetDaily and the Post & Email blog would be the first against the wall in a republic governed by Mr. de Vattel.]

§ 127. Of religion internal and external.

Religion consists in the doctrines concerning the Deity and the things of another life, and in the worship appointed to the honour of the Supreme Being. So far as it is seated in the heart, if is an affair of conscience, in which every one ought to be directed by his own understanding: but so far as it is external, and publicly established, it is an affair of state. [The Bill of Rights in the U. S. Constitution prohibits the establishment of religion.]

§ 129. Public establishment of religion.

But we should take care not to extend this liberty beyond its just bounds. In religious affairs a citizen has only a right to be free from compulsion, but can by no means claim that of openly doing what he pleases, without regard to the consequences it may produce on society. The establishment of religion by law, and its public exercise, are matters of state, and are necessarily under the jurisdiction of the political authority. If all men are bound to serve God, the entire nation, in her national capacity is doubtless obliged to serve and honour him (Prelim. § 5), And as this important duty is to be discharged by the nation in whatever manner she judges best, –” to the nation it belongs to determine what religion she will follow, and what public worship she thinks proper to establish. [The Bill of Rights in the U. S. Constitution prohibits the establishment of religion.]

§ 141. The sovereign’s authority over the ministers of religion.

To the prince’s inspection of the affairs and concerns of religion we have joined an authority over its ministers: without the latter power, the former would be nugatory and ineffectual; –” they are both derived from the same principle. It is absurd, and contrary to the first foundations of society, that any citizens should claim an independence of the sovereign authority, in offices of such importance to the repose, the happiness, and safety of the state. This is establishing two independent powers in the same society –” an unfailing source of division, disturbance, and ruin. There is but one supreme power in the state; the functions of the subordinate powers vary according to their different objects: –” ecclesiastics, magistrates, and commanders of the troops, are all officers of the republic, each in his own department; and all are equally accountable to the sovereign. [The Bill of Rights in the U. S. Constitution, in contrast, guarantees the free exercise of religion.]

§ 144. Recapitulation of the reasons which establish the sovereign’s rights in matters of religion.

If the sovereign be deprived of this power in matters of religion, and this authority over the clergy, how shall he preserve the religion pure from the admixture of any thing contrary to the welfare of the state? How can he cause it to be constantly taught and practised in the manner most conducive to the public welfare? and, especially, how can he prevent the disorders it may occasion, either by its doctrines or the manner in which its discipline is exerted? These cares and duties can only belong to the sovereign, and nothing can dispense with his discharging them. [The Bill of Rights in the U. S. Constitution, in contrast, prohibits the government from restricting the free exercise of religion.]

§ 149. 4. The celibacy of the priests.

…A priest, a prelate, already bound to the see of Rome by his functions and his hopes, is further detached from his country, by the celibacy he is obliged to observe. He is not connected with civil society by a family: his grand interests are all centered in the church; and, provided he has the pope’s favour, he has no further concern: in what country soever he was born, Rome is his refuge, the centre of his adopted country. Everybody knows that the religious orders are a sort of papal militia, spread over the face of the earth, to support and advance the interests of their monarch. This is doubtless a strange abuse –” a subversion of the first laws of society. But this is not all: if the prelates were married, they might enrich the state with a number of good citizens; rich benefices affording them the means of giving their legitimate children a suitable education. But what a multitude of men are there in convents, consecrated to idleness under the cloak of devotion!

§ 176. Means of putting a stop to this disorder.

…Whoever should so far forget himself, as, either by word or deed, to insult a man who wears a sword, might be degraded from the rank of nobility, deprived of the privilege of carrying arms, and subjected to corporal punishment –” even the punishment of death, according to the grossness of the insult…

…Since it is an established custom that the nobility and military men should appear armed, even in time of peace, care should be taken to enforce a rigid observance of the laws which allow the privilege of wearing swords to these two orders of men only. [An infringement on the right to bear arms]

§ 190. Example of the Swiss.

The example of the Swiss is very capable of showing how advantageous glory may prove to a nation. (56) The high reputation they have acquired for their valour, and which they still gloriously support, has preserved them in peace for above two centuries, and rendered all the powers of Europe desirous of their assistance.

§ 215. Children of citizens born in a foreign country.

It is asked whether the children born of citizens in a foreign country are citizens? … If the [father] has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant; and his children will be members of it also. [Citizenship not required.]

§ 219. Vagrants.

Vagrants are people who have no settlement. Consequently, those born of vagrant parents have no country, since a man’s country is the place where, at the time of his birth, his parents had their settlement (§ 122), or it is the state of which his father was then a member, which comes to the same point; for, to settle for ever in a nation, is to become a member of it, at least as a perpetual inhabitant, if not with all the privileges of a citizen. We may, however, consider the country of a vagrant to be that of his child, while that vagrant is considered as not having absolutely renounced his natural or original settlement.

§ 240. Taxes.

If the income of the public property, or of the domain, is not sufficient for the public wants, the state supplies the deficiency by taxes. These ought to be regulated in such a manner, that all the citizens may pay their quota in proportion to their abilities, and the advantages they reap from the society. [It took a later constitutional amendment to permit a progressive income tax. I think the Tea Party would not like this one.]

§ 254. Private property.

We have but a few words to say with respect to private property: every proprietor has a right to make what use he pleases of his own substance, and to dispose of it as he pleases, when the rights of a third person are not involved in the business. The sovereign, however, as the father of his people, may and ought to set bounds to a prodigal, and to prevent his running to ruin, especially if this prodigal be the father of a family.(65) But he must take care not to extend this right of inspection so far as to lay a restraint on his subjects in the administration of their affairs –” which would be no less injurious to the true welfare of the state than to the just liberty of the citizens. The particulars of this subject belong to public law and politics.

Book II

§ 81. The property of the citizens is the property of the nation, with respect to foreign nations.

Even the property of the individuals is, in the aggregate, to be considered as the property of the nation, with respect to other states. It, in some sort, really belongs to her, from the right she has over the property of her citizens, because it constitutes a part of the sum total of her riches, and augments her power. She is interested in that property by her obligation to protect all her members. In short, it cannot be otherwise, since nations act and treat together as bodies in their quality of political societies, and are considered as so many moral persons. All those who form a society, a nation being considered by foreign nations as constituting only one whole, one single person, –” all their wealth together can only be considered as the wealth of that same person.

§ 82. A consequence of this principle.

By an immediate consequence of this principle, if one nation has a right to any part of the property of another, she has an indiscriminate right to the property of the citizens of the latter nation until the debt be discharged.

§ 115. Marriages of aliens. (118)

There exists no natural impediment to prevent foreigners from contracting marriages in the state. But, if these marriages are found prejudicial or dangerous to a nation, she has a right, and is even in duty bound to prohibit them, or to subject to certain conditions the permission to contract them: and, as it belongs to the nation or to her sovereign to determine what appears most conducive to the welfare of the state, other nations ought to acquiesce in the regulations which any sovereign state has made on this head. Citizens are almost everywhere forbid to marry foreign wives of a different religion

§ 120. Right of procuring provisions by force.

The earth was designed to feed its inhabitants; and he who is in want of every thing is not obliged to starve because all property is vested in others. When, therefore, a nation is in absolute want of provisions, she may compel her neighbours who have more than they want for themselves to supply her with a share of them, at a fair price; she may even take it by force, if they will not sell it.

§ 122. Right of carrying off women.

… A nation cannot preserve and perpetuate itself, except by propagation. A nation of men has, therefore, a right to procure women, who are absolutely necessary to its preservation; and if its neighbours, who have a redundancy of females, refuse to give some of them in marriage to those men, the latter may justly have recourse to force….

Thoughts

Perhaps as time permits, I will write about the second half of Book II and review Books III and IV. I could not help thinking as I read The Law of Nations that perhaps the Founders knew Emerich de Vattel all too well, and adopted the Bill of Rights intentionally to protect the new country from his ideas about internal affairs.

What these examples show is that The Law of Nations was a wide-ranging work that has some ideas that were incompatible with the views of our nation’s founders. Therefore, this proves by example that de Vattel is not an authority that can be cited without other support on any particular subject as to what the framers of the US Constitution had in mind or what the laws of the United States are.

214 Responses to The wit and wisdom of Emerich de Vattel

  1. avatar
    charo May 23, 2010 at 11:06 pm #

    I could not help thinking as I read The Law of Nations that perhaps the Founders knew Emerich de Vattel all to well, and adopted the Bill of Rights intentionally to protect the new country from his ideas about internal affairs.

    – Sure seems that way.

    In light of Vattel’s anti-Catholicism, I think it interesting to compare the loyalty aspect of the nbc discussion to Catholicism and the 1960 campaign (quoted from wiki which summarizes well):

    *Religion became a divisive issue during the presidential campaign of 1960. Senator John F. Kennedy of Massachusetts was vying to become the nation’s first Catholic president. A key factor that was hurting Kennedy in his campaign was the widespread prejudice against his Roman Catholic religion; some Protestants believed that, if he were elected President, Kennedy would have to take orders from the Pope in Rome. When offered the opportunity to speak before a convention of Baptist ministers, decided to try to put the issue to rest.

    To address fears that his Roman Catholicism would impact his decision-making, John F. Kennedy famously told the Greater Houston Ministerial Association on September 12, 1960, “I am not the Catholic candidate for President. I am the Democratic Party’s candidate for President who also happens to be a Catholic. I do not speak for my Church on public matters — and the Church does not speak for me.”[13] He promised to respect the separation of church and state and not to allow Catholic officials to dictate public policy to him. Kennedy also raised the question of whether one-quarter of Americans were relegated to second-class citizenship just because they were Roman Catholic.

    Even so, it was widely believed after the election that Kennedy lost some heavily Protestant states because of his Catholicism. His address did not please everyone: many non-Catholics remained unconvinced that a Catholic could be president without divided loyalties; and many Catholics thought he conceded too much in his profession of belief in an “absolute” separation of church and state. The speech is widely considered to be an important marker in the history of Catholicism (and anti-Catholicism) in the United States.

    http://en.wikipedia.org/wiki/Catholic_Church_and_politics_in_the_United_States

  2. avatar
    Dr. Conspiracy May 23, 2010 at 11:26 pm #

    charo: In light of Vattel’s anti-Catholicism, I think it interesting to compare the loyalty aspect of the nbc discussion to Catholicism and the 1960 campaign (quoted from wiki which summarizes well):

    I should mention for the benefit of those who haven’t delved into this topic, that my excerpts from de Vattel on the topic of religion barely scratch the surface of his feelings about the popes. Of course, the Catholic Church did tend to meddle in [to put it nicely] affairs of state back in those days.

  3. avatar
    d May 23, 2010 at 11:36 pm #

    Nice work, but alas I don’t think it matters. The hard-core birthers don’t care about anything other than the emotional reality (to them) that they will not accept Obama as a legitimate President. I’ll leave it to others to speculate on the reasons for that, although i think some of the birthers give away a big part of it with their own careless words.

  4. avatar
    mimi May 23, 2010 at 11:58 pm #

    Great post, doc.

  5. avatar
    misha May 24, 2010 at 12:57 am #

    Birthers are saying ‘oops.’

  6. avatar
    Dallasite May 24, 2010 at 1:52 am #

    Nice post Doc. Too bad birthers will deny, deny, deny.

  7. avatar
    Plutodog May 24, 2010 at 2:39 am #

    Ahh…de Vattel, we thought we knew thee!

    Yes, Doc, excellent work well begun! Thanks!

    But no, it won’t be read/heard of by many birfers even if they read it/hear of it.

    Nature of the stupid beast.

  8. avatar
    Lupin May 24, 2010 at 4:05 am #

    I mentioned it before but since this is a Vattel themed, may I recommend to French readers Vattel’s LES FOURMIS [The ants], an allegorical tale in which a man is shrunk to insect-size thanks to an elixir created by an Hindu mage and thus visit the Republic of the ants.

    http://books.google.com/books?id=hUQGAAAAQAAJ&pg=PA135&lpg=PA135&dq=Vattel+Fourmis&source=bl&ots=3UgW3qHFXE&sig=6g18XoMh983CKE5iBwPXVCP8GEY&hl=en&ei=1zD6S7bdIpSSnAOaqOHHAg&sa=X&oi=book_result&ct=result&resnum=2&ved=0CBkQ6AEwAQ#v=onepage&q=Fourmis&f=false

    Fans of microscopic fiction (Ray Cummings’ THE GIRL IN THE GOLDEN ATOM, FANTASTIC VOYAGE, comics characters THE ATOM and ANT-MAN, etc) will note that this is (as far as I know) the very first time in history that that theme appeared in book form — 1766 to be exact.

    The book in which THE ANTS appear, POLIERGIE, is a mix of fables and poetry. One of Vattel’s most amusing fable involved an “elixir of books” enabling people who don’t have time to read to absorb knowledge.

    It is somewhat painful for scholars of (proto) speculative fiction to see poor Vattel being mistranslated and misused with frightening regularity by the various birther tribes.

  9. avatar
    Jay Bea May 24, 2010 at 4:11 am #

    Dr. Conspiracy:
    “I should mention for the benefit of those who haven’t delved into this topic, that my excerpts from de Vattel on the topic of religion barely scratch the surface of his feelings about the popes. Of course, the Catholic Church did tend to meddle in [to put it nicely] affairs of state back in those days.”

    I doubt that anti-Catholic sentiment would be a turn-off to the birthers. Many of them are of the protestant fundamentalist persuasion that deeply distrusts Catholicism.

    Now “carrying off women” is another matter entirely. 🙂

  10. avatar
    Slartibartfast May 24, 2010 at 7:33 am #

    Dallasite: Nice post Doc.Too bad birthers will deny, deny, deny.

    I don’t think so. If this knowledge penetrates the brither’s first line of defense (ignorance) – i.e. if they find out about it in the insular, ‘gated’ communities of their blogs – then the ‘scholars’ among them will just construct elaborate rationalizations about why the founders clearly didn’t intend to include these concepts when they subordinated the entire Constitution to de Vattel by using the phrase ‘the law of nations’.

  11. avatar
    katahdin May 24, 2010 at 8:46 am #

    We can only hope some lonely male birther doesn’t decide to act on the “carrying off women” idea.

  12. avatar
    Scott Brown May 24, 2010 at 9:20 am #

    Dr. Conspiracy: IOf course, the Catholic Church did tend to meddle in [to put it nicely] affairs of state back in those days.

    Meddle? You are being FAR too kind in your description.

    Fear of Catholicism was not unfounded – if you believe otherwise, do some reading up on history.

  13. avatar
    Scientist May 24, 2010 at 9:33 am #

    katahdin-Never mind the birthers. We all better hope that Vattel is not translated into Chinese.

    http://io9.com/5212078/with-327-million-excess-males-what-will-become-of-china

  14. avatar
    Scott Brown May 24, 2010 at 9:36 am #

    I’m not sure if I’m considered a birther by this democracy threatening blog or not; however, I don’t put much stock in Vattel.

    My basis for information comes from what I learned in history class….now, where the teacher of that class derived his/her information, I have no clue. No, I can’t point to a certain Mrs. Brown or Mr. Clemons for where I got my impressions, nor can I point to a certain text book. Here is what I can tell you.

    Long, long before Obama even thought of becoming president, I had a close friend who, along with her husband were stationed in Germany for the first years of their marriage. Their first born was born on a German Military base. When her son and mine became friends through Boy Scouts, she and I were visiting and that’s when I learned of his being born in Germany. Her constant concern(as related to her by the military) was for the fact that her son would NEVER have the opportunity to be POTUS (although the likelihood was slim that he would even try to attain such a lofty goal). All the mothers in the discussion saw and agreed to the gravity of what his being born in Germany meant. None of us ever gave it a second thought that because both of his parents were US Citizens, each of around age 25 at his birth, that he would be eligible. We all KNEW from our history lessons that he was NOT eligible.

    My belief that Obama is ineligible doesn’t come from Vattel or semi-applicable case law – it comes from Common Sense. I believe Doc just recently had a democracy threatening post on that subject. The problem was that Doc came to the hard and fast conclusion that HIS common sense trumped my common sense, when only a court of law can trump differing opinions and interpretations of the wording in the Constitution.

    It’s not about Obama – it’s about who comes after, and just what precedent Obama is setting for those that come after him. Such argument is hard for the Obama supporters to swallow, because it takes away their racial argument. For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH.

  15. avatar
    Slartibartfast May 24, 2010 at 9:54 am #

    Scott Brown: The problem was that Doc came to the hard and fast conclusion that HIS common sense trumped my common sense, when only a court of law can trump differing opinions and interpretations of the wording in the Constitution.

    The problem with this statement is that Doc C didn’t just come to the ‘hard and fast conclusion that HIS common sense trumped [your] common sense’ – he has a website full of evidence that his common sense is also what the law says. Regardless of what you learned as a child or what any member of the military says, the law clearly says that Wong Kim Ark was a natural born citizen and because he was born in Hawaii, so is President Obama. Furthermore, I know of no law or court case that says children born to members of the US military on foreign bases are not US citizens (in fact, the Senate resolution about McCain indicates the contrary) and neither do you (or you would have cited it). Maybe you should reassure your friend that her son is eligible to run for president (assuming he’s 35 and 14 years a resident) instead of pretending there is any question about President Obama’s eligibility.

  16. avatar
    Black Lion May 24, 2010 at 10:13 am #

    Scott Brown: I’m not sure if I’m considered a birther by this democracy threatening blog or not; however, I don’t put much stock in Vattel. My basis for information comes from what I learned in history class….now, where the teacher of that class derived his/her information, I have no clue. No, I can’t point to a certain Mrs. Brown or Mr. Clemons for where I got my impressions, nor can I point to a certain text book. Here is what I can tell you.Long, long before Obama even thought of becoming president, I had a close friend who, along with her husband were stationed in Germany for the first years of their marriage. Their first born was born on a German Military base. When her son and mine became friends through Boy Scouts, she and I were visiting and that’s when I learned of his being born in Germany. Her constant concern(as related to her by the military) was for the fact that her son would NEVER have the opportunity to be POTUS (although the likelihood was slim that he would even try to attain such a lofty goal). All the mothers in the discussion saw and agreed to the gravity of what his being born in Germany meant. None of us ever gave it a second thought that because both of his parents were US Citizens, each of around age 25 at his birth, that he would be eligible. We all KNEW from our history lessons that he was NOT eligible.My belief that Obama is ineligible doesn’t come from Vattel or semi-applicable case law – it comes from Common Sense. I believe Doc just recently had a democracy threatening post on that subject. The problem was that Doc came to the hard and fast conclusion that HIS common sense trumped my common sense, when only a court of law can trump differing opinions and interpretations of the wording in the Constitution.It’s not about Obama – it’s about who comes after, and just what precedent Obama is setting for those that come after him. Such argument is hard for the Obama supporters to swallow, because it takes away their racial argument. For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH.

    Interesting story by our resident storyteller “Scott Brown”. It makes me wonder if this story is similar to her last one. We all know which one I am talking about. The one where she claims to have a state issued COLB “just like Obama’s” but could not get a US Passport. We all know that this story was untrue and almost 2 months later most posters are still waiting to hear what magical state “Scott Brown” was born in that issued COLB’s like Obama’s that were not suffcient for obtaining a US Passport.

    Because of this there is no real reason to think that your current story is true. Most people I knew that were kids born to US citizens in the military overseas never really thought about Presidential eligibility…However they all knew that they were US citizens and so did their parents.

    I find it amusing that you consider Doc’s earlier commentary a “a democracy threatening post on that subject.” Why? And as far as your comparison of “common sense” with his, anyone that would believe that someone born in the US is not elligible to be President is not showing much. This is how social studies books have taught the subject in schools for generations. The fact is that for some reason you dislike the President, so no matter what evidence is presented, you will continue to view it with suspicion because it does not fit in with your preconcieved narrative. No matter what you would never be an Obama supporter, which is OK. But to use the this ineligibility nonsense as your reasoning is what makes you obvious.

  17. avatar
    Dave May 24, 2010 at 10:22 am #

    Scott Brown: I’m not sure if I’m considered a birther by this democracy threatening blog or not; however, I don’t put much stock in Vattel.

    Well, now you have me really confused. You relate a story about a boy born to US Citizen parents in Germany, and you seem convinced that that makes him not eligible for the Presidency, because what matters is not his parentage, but his place of birth. That’s what it appears you’re saying, do I have that right? Because that appears to be the opposite of what I thought you were saying in previous posts. If that is what you’re saying, then how in the world do you extend this line of thinking to concluding that Obama is ineligible?

    By the way, the story about Sen. Scott Brown doing the bidding of Organizing for America is now on Free Republic. Do you think it’s true? If so, is this a good thing?

  18. avatar
    Saint James May 24, 2010 at 10:39 am #

    Scott Brown: “Long, long before Obama even thought of becoming president, I had a close friend who, along with her husband were stationed in Germany for the first years of their marriage. Their first born was born on a German Military base. When her son and mine became friends through Boy Scouts, she and I were visiting and that’s when I learned of his being born in Germany. Her constant concern(as related to her by the military) was for the fact that her son would NEVER have the opportunity to be POTUS (although the likelihood was slim that he would even try to attain such a lofty goal). All the mothers in the discussion saw and agreed to the gravity of what his being born in Germany meant. None of us ever gave it a second thought that because both of his parents were US Citizens, each of around age 25 at his birth, that he would be eligible. We all KNEW from our history lessons that he was NOT eligible.”

    That was your old wives tales in Germany. It was a different story in another country. I was born in the Philippines to parents from Hawaii and Arkansas. I’m a NATURAL BORN CITIZEN of the UNITED STATES OF AMERICA. If you don’t believe it, then I’m willing to show you my proof.

  19. avatar
    Lupin May 24, 2010 at 10:51 am #

    Scott Brown: Long, long before Obama even thought of becoming president, I had a close friend who, along with her husband were stationed in Germany for the first years of their marriage. Their first born was born on a German Military base. When her son and mine became friends through Boy Scouts, she and I were visiting and that’s when I learned of his being born in Germany. Her constant concern(as related to her by the military) was for the fact that her son would NEVER have the opportunity to be POTUS (although the likelihood was slim that he would even try to attain such a lofty goal). All the mothers in the discussion saw and agreed to the gravity of what his being born in Germany meant. None of us ever gave it a second thought that because both of his parents were US Citizens, each of around age 25 at his birth, that he would be eligible. We all KNEW from our history lessons that he was NOT eligible.

    The kindest thing one can say is that you, your friends, all the mothers, etc. were all grossly misinformed — assuming of course such conversation ever took place.

  20. avatar
    Sef May 24, 2010 at 11:06 am #

    Scott Brown: Long, long before Obama even thought of becoming president, I had a close friend who, along with her husband were stationed in Germany for the first years of their marriage. Their first born was born on a German Military base. When her son and mine became friends through Boy Scouts, she and I were visiting and that’s when I learned of his being born in Germany. Her constant concern(as related to her by the military) was for the fact that her son would NEVER have the opportunity to be POTUS (although the likelihood was slim that he would even try to attain such a lofty goal). All the mothers in the discussion saw and agreed to the gravity of what his being born in Germany meant. None of us ever gave it a second thought that because both of his parents were US Citizens, each of around age 25 at his birth, that he would be eligible. We all KNEW from our history lessons

    That’s why the Constitution says natural born, not native born.

  21. avatar
    Rickey May 24, 2010 at 11:21 am #

    Scott Brown: For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH.

    Let me get this straight. Supposedly your friends believed that their son was not a natural-born citizen because he was born on a military base in Germany. Then you go on to say that for a POTUS candidate “it only matters what his/her allegiances are…AT BIRTH.”

    So you are suggesting that someone born on a U.S. military base in Germany, to U.S. citizen parents, somehow has allegiance at birth to Germany? That must be what you are saying, if the only thing which matters is allegiance at birth.

    We’re still waiting for a birther to cite a single textbook used in schools during the 20th century which says that to be a natural-born citizen one must be born in the United States to two citizen parents.

  22. avatar
    Bob Ross May 24, 2010 at 11:26 am #

    Scott Brown: I’m not sure if I’m considered a birther by this democracy threatening blog or not; however, I don’t put much stock in Vattel. My basis for information comes from what I learned in history class….now, where the teacher of that class derived his/her information, I have no clue. No, I can’t point to a certain Mrs. Brown or Mr. Clemons for where I got my impressions, nor can I point to a certain text book. Here is what I can tell you.Long, long before Obama even thought of becoming president, I had a close friend who, along with her husband were stationed in Germany for the first years of their marriage. Their first born was born on a German Military base. When her son and mine became friends through Boy Scouts, she and I were visiting and that’s when I learned of his being born in Germany. Her constant concern(as related to her by the military) was for the fact that her son would NEVER have the opportunity to be POTUS (although the likelihood was slim that he would even try to attain such a lofty goal). All the mothers in the discussion saw and agreed to the gravity of what his being born in Germany meant. None of us ever gave it a second thought that because both of his parents were US Citizens, each of around age 25 at his birth, that he would be eligible. We all KNEW from our history lessons that he was NOT eligible.My belief that Obama is ineligible doesn’t come from Vattel or semi-applicable case law – it comes from Common Sense. I believe Doc just recently had a democracy threatening post on that subject. The problem was that Doc came to the hard and fast conclusion that HIS common sense trumped my common sense, when only a court of law can trump differing opinions and interpretations of the wording in the Constitution.It’s not about Obama – it’s about who comes after, and just what precedent Obama is setting for those that come after him. Such argument is hard for the Obama supporters to swallow, because it takes away their racial argument. For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH.

    You are considered a birther no matter how much you claim to deny not being one you continue making the same birther taklking points even after you’ve been discredited…

    So which state did you learn history? You can’t point to which teacher who taught you or any text you just suddenly remembered this now after Obama became president. Sorry if we don’t believe you.

    His allegiance at birth was to the United States of America no matter how much you want to denigrate the notion of America. I find it funny how you continue to call this blog a “democracy threatening blog”. Your concept of what is democracy threatening is rather ludicrous and unamerican.

  23. avatar
    Lupin May 24, 2010 at 11:56 am #

    Scott Brown: For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH.

    As I pointed out to Mario Apuzzo more than once, if you truly believe this, it means that no child born of, say, Jewish, Italian, Greek parents (group plural = 1 parent) can ever be eligible, since they are literally born with automatic dual citizenship in another state.

    Please have the guts to clearly express your opinion not in vague theoretical language but in clear, unambiguous, every day language.

    Shorter Scott Brown = “No Jew is eligible to be President.”

    You’re welcome.

    Now we can debate.

  24. avatar
    Saint James May 24, 2010 at 12:02 pm #

    Scott Brown: … “by this democracy threatening blog.”

    I understand your frustrations for not having won even a single argument on this site. Inspite of that, you were still allowed to post your birther views. What’s so undemocratic about that? Try posting any opposing views in websites like Orly’s et. al. I guarantee you, she (they) will block your post. They should be called “democracy threatening blogs”.

  25. avatar
    Jez May 24, 2010 at 12:10 pm #

    I know I’m going to regret this, and can’t believe I’m doing it, but here goes.

    20+ years ago, when my father was stationed in what was then West Germany, a discussion on this topic did take place when I was in Jr. High. I went to a DoDDS school on base, and in History class we were talking about the Presidency. There was a boy in the class that had been born in Turkey, and one of the things we talked about was how you had to be born in America to be eligible to be President. I remember thinking how inherently unfair it was since he was born on base.

    Now 20+ years later, I now know about Consular Reports of Birth Abroad, and all that other fun paperwork that must be filled out when an American Citizen must fill out when child is born overseas. I also now know that these children are also considered Natural Born Citizens becaused they aquired their citizenship at birth.

    I have come to realize that this was an “urban (base?) legend” used mainly to torture and marginalize those of us that had been born “state-side” and those that had not.

    So, I can vouch for the veracity of what “Scott” is attempting to relate. These types of conversations did take place on base, at least amongst the kids (to tease and marginalize as kids do) and in class.

    What I will refute is that during all the discussion, and in the subsequent years of schooling, nobody ever mentioned the two-parent theory in relation to being born in the US.

  26. avatar
    NbC May 24, 2010 at 12:13 pm #

    Scott Brown: I’m not sure if I’m considered a birther by this democracy threatening blog or not;

    Wow, any rational reasoning behind this strange statement?
    You do realize that this blog is not asking to ignore relevant parts of the Constitution or re-interpret well established terminologies such as natural born?

  27. avatar
    SFJeff May 24, 2010 at 12:14 pm #

    “by this democracy threatening blog.”

    Yes, Scott keeps refusing to explain this label. I am so tempted to label all birthers “democracy threatening posters” since they advocate using the legal system to overthrow a democratically elected President, but somehow i restrain myself.

  28. avatar
    NbC May 24, 2010 at 12:15 pm #

    My belief that Obama is ineligible doesn’t come from Vattel or semi-applicable case law – it comes from Common Sense.

    Common sense, is that another excuse for ignoring fact, logic and reason Scott? But I am glad that you admit that your belief is not based on law or Constitution.

  29. avatar
    SFJeff May 24, 2010 at 12:19 pm #

    “Fear of Catholicism was not unfounded – if you believe otherwise, do some reading up on history.”

    A Swiss citizen might have cause to fear Catholicism. Of course during the Reformation, there were people who had reasonable fears of the various emergent- and rigidly intolerant forms of Protestantism.

    Rather than rehash the horror’s perpetuated in the name of religions, I think it is more important to realize that what Vattel advocated when he wrote “Law of Nations” is completely inappropriate in today’s world.

  30. avatar
    DaveH May 24, 2010 at 12:22 pm #

    Saint James: I understand your frustrations for not having won even a single argument on this site. Inspite of that, you were still allowed to post your birther views. What’s so undemocratic about that? Try posting any opposing views in websites like Orly’s et. al. I guarantee you, she (they) will block your post. They should be called “democracy threatening blogs”.

    Orly only allows posts that agree with her or praise her. The Pest & eFail along with AGJ may allow one post in just so they can ridicule it but in general, they’re moderated blogs that all posts have to be approved. Doc allows anyone to post. I agree with Saint James in questioning why Scott Brown would consider this a democracy threatening blog.

    In addition, just as another comment even though others have covered the subject regarding the story of the birth in Germany. Scott Brown must have had some very poor schooling and her friend as well if they were worried about a child born to two US citizens on a US military base would not be a natural born citizen and one day be able to be president. It’s been 35 years since I graduated from high school and I can remember learning about the two forms of citizenship in high school civics. That’s why the birther movement caught my interest when I heard and read about people saying you had to have to US parents to be natural born even if you’re born within the borders of United States or a territory of the US. It is such a simple concept and easily remembered from civics in high school that you’re either natural born based on being born in the US, or being born outside of the US to either one or two US citizens. Naturalized are those who have immigrated and gained citizenship. But birthers want to make it so complicated when it isn’t.

  31. avatar
    Saint James May 24, 2010 at 12:25 pm #

    Scott Brown: Their first born was born on a German Military base.

    Scott, I was NOT born inside the Subic Naval Base which was a US military base. I was born in an island province called Cebu. Guess what? I’m a NATURAL BORN CITIZEN of the great UNITED STATES OF AMERICA.

  32. avatar
    Walter White May 24, 2010 at 12:28 pm #

    Saint James:
    Scott, I was NOT born inside the Subic Naval Base which was a US military base.I was born in an island province called Cebu.Guess what?I’m a NATURAL BORN CITIZEN of the great UNITED STATES OF AMERICA.

    Prove it! ’cause I think you’re a Filipino who naturalized.

  33. avatar
    Saint James May 24, 2010 at 12:31 pm #

    Walter White: Prove it! ’cause I think you’re a Filipino who naturalized.

    Saint James: That was your old wives tales in Germany. It was a different story in another country. I was born in the Philippines to parents from Hawaii and Arkansas. I’m a NATURAL BORN CITIZEN of the UNITED STATES OF AMERICA. If you don’t believe it, then I’m willing to show you my proof.

  34. avatar
    SFJeff May 24, 2010 at 12:36 pm #

    “My belief that Obama is ineligible doesn’t come from Vattel or semi-applicable case law – it comes from Common Sense.”

    Yet the common sense of 67 million voters said that President Obama was eligible. As did the common sense of the Electoral College and the entire Congress. At some point you may want to evaluate why your ‘common sense’ varies so completely with pretty much every other American.

    “The problem was that Doc came to the hard and fast conclusion that HIS common sense trumped my common sense, when only a court of law can trump differing opinions and interpretations of the wording in the Constitution.”

    See my answer above. The voters already concluded that Obama met what our common shared version of what it means to be a ‘Natural Born Citizen’. There is no obligation for the courts to satisfy your differing opinion.

    “It’s not about Obama – it’s about who comes after, and just what precedent Obama is setting for those that come after him. Such argument is hard for the Obama supporters to swallow, because it takes away their racial argument.
    Of course its all about Obama. If Obama’s father had been Irish or Canadian, no one would have ever raised this argument. Just my opinion of course, but it is my ‘common sense’ opinion.

    “For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH.”

    Essentially, what you are advocating is allowing other governments control who is eligible to be our president.

    Suppose Venezuela were to declare that all Caucasian Americans were automatic Venezuelan citizens- would that mean that no one born of Caucasian parents could be a natural born citizen? It has already been pointed out to you that several countries already assume that certain people are automatic citizens of their country- why do you want other governments to control who can be our President?

    To me, the situations is clear.
    a) I was taught in school that anyone born in the United States(we skipped the exceptions) was eligible to be President
    b) The voters knew that President Obama’s father was not a U.S. citizen and voted for him anyway- they clearly had the same understanding I did.
    c) No textbooks have been found that use your definition
    d) No legal scholars agree that your version is what NBC means
    e) Before Obama was elected no birther had ever heard of Vattel
    f) If Birthers were intellectually honest, they wouldn’t be embracing every single theory of why President Obama was ineligible. If they really, truely thought he was born in Kenya, then the ‘two citizen’ fantasy wouldn’t matter. If they really truely believed in the ‘two citizen’ fantasy’ then the born in Kenya fantasy wouldn’t matter.

    To me, its very clear who is uncomfortable with democracy- and its not the voters who voted for President Obama, nor people like myself who reject innuendo and slander presented as ‘evidence’ against our elected President.

  35. avatar
    Saint James May 24, 2010 at 12:37 pm #

    Walter White: Prove it! ’cause I think you’re a Filipino who naturalized.

    Tell me where to send you my certificate of citizenship. Also research this. Section 341 of the Immigration and Nationality Act. Also research this Form N-560 (rev. 11-1-87)

  36. avatar
    Rickey May 24, 2010 at 12:39 pm #

    Saint James:
    Scott, I was NOT born inside the Subic Naval Base which was a US military base.I was born in an island province called Cebu.Guess what?I’m a NATURAL BORN CITIZEN of the great UNITED STATES OF AMERICA.

    I was once stationed at Subic. Just out of curiosity, why were your parents at Cebu? Were they missionaries?

  37. avatar
    Saint James May 24, 2010 at 12:44 pm #

    Rickey: I was once stationed at Subic. Just out of curiosity, why were your parents at Cebu? Were they missionaries?

    My dad was a chief petty officer stationed in subic Naval Base and my mom worked in the navy exchange. They visited some friends in Cebu thinking that she was going to give birth in a months time but I guess, I was in a hurry to see the light of day LOL

  38. avatar
    Sef May 24, 2010 at 12:50 pm #

    SFJeff: I think it is more important to realize that what Vattel advocated when he wrote “Law of Nations” is completely inappropriate in today’s world.

    Not only inappropriate in today’s world but inappropriate on this continent in all time. A lot of the ideas espoused in this document exemplify the reasons our ancestors left Europe (either of their own free will or were forced) & founded this great country. To lend any credence to this document is decidedly un-American.

  39. avatar
    Saint James May 24, 2010 at 1:01 pm #

    Walter White: Prove it! ’cause I think you’re a Filipino who naturalized.

    Here is section 341 of the Immigration and Naturalization Act…

    Documentation of U.S. Citizens Born Abroad

    U.S. Department of State
    Bureau of Consular Affairs

    Documentation of United States Citizens Born
    Abroad Who Acquire Citizenship At Birth

    The birth of a child abroad to U.S. citizen parent(s) should be reported as soon as possible to the nearest American consular office for the purpose of establishing an official record of the child’s claim to U.S. citizenship at birth. The official record is in the form of a Consular Report of Birth Abroad of a Citizen of the United States of America. This document, referred to as the Consular Report of Birth or FS-240, is considered a basic United States citizenship document. An original FS-240 is furnished to the parent(s) at the time the registration is approved.

    Please take note of…”establishing an official record of the child’s claim to U.S. citizenship at birth.” …AT BIRTH!

  40. avatar
    Scientist May 24, 2010 at 1:07 pm #

    Scott Brown: It’s not about Obama – it’s about who comes after, and just what precedent Obama is setting for those that come after him.

    Let me see if I have this straight. Obama is a Socialist, Communist, Fascist, Muslim terrorist who will put all Americans he doesn’t have killed by death panels into FEMA relocation camps and you’re worried about who comes after him?????

  41. avatar
    Saint James May 24, 2010 at 1:17 pm #

    Saint James: Here is section 341 of the Immigration and Naturalization Act.

    Correction: Immigration and Nationality Act.

  42. avatar
    SFJeff May 24, 2010 at 1:23 pm #

    “Obama is a Socialist, Communist, Fascist, Muslim terrorist ”

    Scientist- you forgot to mention- that Obama is all of those things because his father wasn’t a U.S. citizen.

    But I agree with your post- I am surprised that there are still birthers posting who haven’t been rounded up yet. And Obama is really being lax letting Newtie run around comparing his agenda to Nazi Germany and Communist China.

  43. avatar
    nbC May 24, 2010 at 1:33 pm #

    Saint James: Please take note of…”establishing an official record of the child’s claim to U.S. citizenship at birth.” …AT BIRTH!

    Yes, however, note that the law is statutory and can thus unlikely change a Constitutional provision. The law implements naturalization procedures.

  44. avatar
    Saint James May 24, 2010 at 1:43 pm #

    nbC: Yes, however, note that the law is statutory and can thus unlikely change a Constitutional provision. The law implements naturalization procedures.

    Yes I agree and will also add that said laws offer an interpretation of Constitutional provision. Thus said laws can’t be implemented if deemed contrary to the Constitution.

  45. avatar
    Sef May 24, 2010 at 1:44 pm #

    nbC:
    Yes, however, note that the law is statutory and can thus unlikely change a Constitutional provision. The law implements naturalization procedures.

    If one assumes that there is such a thing as “naturalization at birth”.

  46. avatar
    Scientist May 24, 2010 at 1:46 pm #

    nbC: Yes, however, note that the law is statutory and can thus unlikely change a Constitutional provision.

    The Constitution (14th amendment) says anyone born in the US is a US citizen. That’s clear to everyone but birthers. However, the Constitution says nothing either way about those born overseas to US citizens. Thus, the law is not “changing a Constitutional provision”, it is establishing national policy in an area where the Constitution is silent, which is what laws do.

    Saint James can run for President, though, in all honesty, given the situation today, I question the sanity of anyone who would want the job.

  47. avatar
    Saint James May 24, 2010 at 1:46 pm #

    Sef: If one assumes that there is such a thing as “naturalization at birth”.

    LOL! That’s something new.

  48. avatar
    d May 24, 2010 at 1:51 pm #

    Scott Brown: I’m not sure if I’m considered a birther by this democracy threatening blog or not; however, I don’t put much stock in Vattel.
    My basis for information comes from what I learned in history class….now, where the teacher of that class derived his/her information, I have no clue.No, I can’t point to a certain Mrs. Brown or Mr. Clemons for where I got my impressions, nor can I point to a certain text book.Here is what I can tell you.Long, long before Obama even thought of becoming president, I had a close friend who, along with her husband were stationed in Germany for the first years of their marriage. Their first born was born on a German Military base.When her son and mine became friends through Boy Scouts, she and I were visiting and that’s when I learned of his being born in Germany. Her constant concern(as related to her by the military) was for the fact that her son would NEVER have the opportunity to be POTUS (although the likelihood was slim that he would even try to attain such a lofty goal).All the mothers in the discussion saw and agreed to the gravity of what his being born in Germany meant.

    Oh, BS. You are either making that up or it was the most trivially hysterical group of mothers ever. “The gravity of what being born in germany meant”–yeah, right.

    Scott Brown: We all KNEW from our history lessons that he was NOT eligible.

    Then I guess you knew wrong.

    Scott Brown:It’s not about Obama – it’s about who comes after, and just what precedent Obama is setting for those that come after him.Such argument is hard for the Obama supporters to swallow, because it takes away their racial argument.For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH.

    This is perhaps the most singularly offensive notion in all the birther quackery. It is a pitiful fig leaf to try and introduce something obscene into respectable conversation. ALLEGIANCE AT BIRTH? You know, that’s a very ancient European concept, exactly the sort of mindset our Founders fled and ultimately rebelled against.

    The natural born citizen clause is a common sense provision intended to prevent someone who was European from waltzing over here, stirring up the locals with promises, getting elected and undermining the independence of what was then a very young and relatively weak country. The birthers twist that into an argument about the child being tainted at birth by allegiance to a country they don’t even know exists. Sounds a bit like “tainted in the blood,” doesn’t it? And where oh where would an American every get a concept about tainting of the blood in our history? Hmmm. What precedent in American history could possibly involve wondering about the fractional percentages of one’s blood, or should i say allegiance to an imaginary image of country that doesn’t involve certain types of people.

    You don’t take away the racial issue. You reinforce it with every unwitting (?) attempt to disguise it you and your German mothers make.

  49. avatar
    Sef May 24, 2010 at 1:56 pm #

    Saint James:
    LOL! That’s something new.

    That is what the comment by nbC implies. If we can agree that there are only 2 types of citizenship, natural born & naturalized, then if someone is not natural born & they acquire citizenship at birth then you must have “naturalization at birth”. The alternative is that anyone who acquires citizenship at birth is “natural born”, something which nbC doesn’t accept if one is born outside of the U.S.

  50. avatar
    Saint James May 24, 2010 at 1:59 pm #

    Sef: That is what the comment by nbC implies. If we can agree that there are only 2 types of citizenship, natural born & naturalized, then if someone is not natural born & they acquire citizenship at birth then you must have “naturalization at birth”. The alternative is that anyone who acquires citizenship at birth is “natural born”, something which nbC doesn’t accept if one is born outside of the U.S.

    To add on to what you said, foreign nationals who are minors have to wait until they reach legal age before they can apply for the naturalization process.

  51. avatar
    Mike May 24, 2010 at 2:09 pm #

    Scott Brown: I’m not sure if I’m considered a birther by this democracy threatening blog or not; however, I don’t put much stock in Vattel.
    My basis for information comes from what I learned in history class….now, where the teacher of that class derived his/her information, I have no clue.No, I can’t point to a certain Mrs. Brown or Mr. Clemons for where I got my impressions, nor can I point to a certain text book.Here is what I can tell you.Long, long before Obama even thought of becoming president, I had a close friend who, along with her husband were stationed in Germany for the first years of their marriage. Their first born was born on a German Military base.When her son and mine became friends through Boy Scouts, she and I were visiting and that’s when I learned of his being born in Germany. Her constant concern(as related to her by the military) was for the fact that her son would NEVER have the opportunity to be POTUS (although the likelihood was slim that he would even try to attain such a lofty goal).All the mothers in the discussion saw and agreed to the gravity of what his being born in Germany meant. None of us ever gave it a second thought that because both of his parents were US Citizens, each of around age 25 at his birth, that he would be eligible.We all KNEW from our history lessons that he was NOT eligible.My belief that Obama is ineligible doesn’t come from Vattel or semi-applicable case law – it comes from Common Sense.I believe Doc just recently had a democracy threatening post on that subject.The problem was that Doc came to the hard and fast conclusion that HIS common sense trumped my common sense, when only a court of law can trump differing opinions and interpretations of the wording in the Constitution.It’s not about Obama – it’s about who comes after, and just what precedent Obama is setting for those that come after him.Such argument is hard for the Obama supporters to swallow, because it takes away their racial argument.For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH

    And “Scott” is caught in a lie, again. Do your research next time, Mrs Brown.

    If you had, you would realise that Germany does not apply a ius soli rule for citizenship. When will you stop the lies? You’re just embarrassing yourself at this point.

  52. avatar
    nbC May 24, 2010 at 2:51 pm #

    Sef:
    If one assumes that there is such a thing as “naturalization at birth”.

    The alternative is that these children are not naturalized at all.

    Let me explain:

    Under the Constitution, Congress has the right/duty to regulate naturalization. From the early statutes to the more recent ones, these are all considered to be naturalization statutes.

    The question thus becomes: Can Congress extend a Constitutionally described status of natural born as part of their Constitutional duty to regulate naturalization?

    Some have pointed to Common Law practices that declare children born abroad to Parents to be natural born citizens however like in English Law, these were all statutory and not part of common law itself.

    If that is the case then under Common Law, natural born only involved birth on soil. While early Congress appeared to try to rectify this by declaring children born abroad to US parents to be natural born, that description was dropped in subsequent statutes.

  53. avatar
    Saint James May 24, 2010 at 2:53 pm #

    nbC: Yes, however, note that the law is statutory and can thus unlikely change a Constitutional provision. The law implements naturalization procedures.

    What I’ve disclosed is based on my own experience. I’m a natural born citizen in that my citizenship is from birth. Unlike those who acquire citizenship through naturalization when they become of legal age, I was never asked to take an oath of allegiance not even take a citizenship test. I hope the following will help clarify those who are Natural Born Citizens.

    http://www.usconstitution.net/consttop_citi.html

    Natural-born citizen

    Who is a natural-born citizen? Who, in other words, is a citizen at birth, such that that person can be a President someday?

    Currently, Title 8 of the U.S. Code fills in the gaps left by the Constitution. Section 1401 defines the following as people who are “citizens of the United States at birth:”
    Anyone born inside the United States *
    Any Indian or Eskimo born in the United States, provided being a citizen of the U.S. does not impair the person’s status as a citizen of the tribe
    Any one born outside the United States, both of whose parents are citizens of the U.S., as long as one parent has lived in the U.S.
    Any one born outside the United States, if one parent is a citizen and lived in the U.S. for at least one year and the other parent is a U.S. national
    Any one born in a U.S. possession, if one parent is a citizen and lived in the U.S. for at least one year
    Any one found in the U.S. under the age of five, whose parentage cannot be determined, as long as proof of non-citizenship is not provided by age 21
    Any one born outside the United States, if one parent is an alien and as long as the other parent is a citizen of the U.S. who lived in the U.S. for at least five years (with military and diplomatic service included in this time)
    A final, historical condition: a person born before 5/24/1934 of an alien father and a U.S. citizen mother who has lived in the U.S.
    * There is an exception in the law — the person must be “subject to the jurisdiction” of the United States. This would exempt the child of a diplomat, for example, from this provision.

  54. avatar
    nbC May 24, 2010 at 2:57 pm #

    Scott Browb: It’s not about Obama – it’s about who comes after, and just what precedent Obama is setting for those that come after him.Such argument is hard for the Obama supporters to swallow, because it takes away their racial argument.For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH

    Scott is wrong. Allegiance was never a real issue, at least not in the sense as interpreted by him. Certainly not under the 14th Amendment where it is jurisdiction, a term which also describes more accurately the concept of allegiance.
    By equivocating on the meaning of the term allegiance, Scott is trying to claim that President Obama was not born owing full allegiance to the US. That is erroneous, birth and allegiance go hand in hand. By virtue of being born on US soil, Common Law considered President Obama to be born under its full jurisdiction and thus a natural born citizen. The only exceptions were those born to parents who were not under jurisdiction of the US and their children thus were not born under owing allegiance to the US. This includes children born to foreign diginitaries and invading military.

    Wong Kim Ark laid to rest these concerns a long time ago.

    So let’s not conflate the meaning of Allegiance as used in Common Law lest we may believe that this would allow foreign countries to take away birth right citizenship from US citizens.
    The Founders would never have stood for such. And we should not either. SO unless Scott is arguing that foreign countries dictate US citizenship, his arguments have to be rejected as flawed and lacking in common sense, or at least, lacking in reason, logic, evidence and facts

  55. avatar
    Sef May 24, 2010 at 3:04 pm #

    nbC:
    The alternative is that these children are not naturalized at all.
    Let me explain:Under the Constitution, Congress has the right/duty to regulate naturalization. From the early statutes to the more recent ones, these are all considered to be naturalization statutes.
    The question thus becomes: Can Congress extend a Constitutionally described status of natural born as part of their Constitutional duty to regulate naturalization?Some have pointed to Common Law practices that declare children born abroad to Parents to be natural born citizens however like in English Law, these were all statutory and not part of common law itself.If that is the case then under Common Law, natural born only involved birth on soil. While early Congress appeared to try to rectify this by declaring children born abroad to US parents to be natural born, that description was dropped in subsequent statutes.

    And if they are neither naturalized nor natural born they are aliens, as there are only 2 types of citizens. Unless you want to posit that there is a 3rd type of citizen. This could lead to the slippery slope of the birther invented “super citizen”. I don’t think we want to go down that path.

    Wikipedia defines naturalization thus: “Naturalization is the acquisition of citizenship and nationality by somebody who was not a citizen or national of that country when he or she was born.” I do not know if this is the “legal” definition, but it passes the “common sense” test.

  56. avatar
    Saint James May 24, 2010 at 3:15 pm #

    nbC: While early Congress appeared to try to rectify this by declaring children born abroad to US parents to be natural born, that description was dropped in subsequent statutes.

    subsequent statutes have not changed in that children born to US parent(s) are natural born citizens.

    http://www.usconstitution.net/consttop_citi.html

  57. avatar
    Saint James May 24, 2010 at 3:19 pm #

    Saint James: subsequent statutes have not changed in that children born to US parent(s) are natural born citizens.http://www.usconstitution.net/consttop_citi.html

    correction: “children born abroad to US parent(s) are natural born citizens” provided they meet the provisions of Title 8 of the U.S. Code Section 1401

  58. avatar
    nbC May 24, 2010 at 3:27 pm #

    And if they are neither naturalized nor natural born they are aliens, as there are only 2 types of citizens. Unless you want to posit that there is a 3rd type of citizen. This could lead to the slippery slope of the birther invented “super citizen”. I don’t think we want to go down that path.

    So they must be naturalized as the alternative, natural born runs against common law principles and the Constitution.

    As to a 3rd kind of citizen, while I have argued against this for some time, SCOTUS appears to recognize someone who is a citizen but not a 14th Amendment citizen.

    So we have

    Natural-born
    Natural-ized – 14th Amendment/non-14th Amendment

    In Rogers v Bellei, the plaintiff, who was born in a foreign country, acquired US citizenship through his mother.

    The central fact, in our weighing of the plaintiff’s claim to continuing and therefore current United States citizenship, is that he was born abroad. He was not born in the United States. He was not naturalized in the United States. And he has not been subject to the jurisdiction of the United States. All this being so, it seems indisputable that the first sentence of the Fourteenth Amendment has no application to plaintiff Bellei. He simply is not a Fourteenth-Amendment-first-sentence citizen.

    Schneider v Rusk

    While the rights of citizenship of the native born derive from § 1 of the Fourteenth Amendment and the rights of the naturalized citizen derive from satisfying, free of fraud, the requirements set by Congress, the latter, apart from the exception noted, “becomes a member of the society, possessing all the rights of a native citizen, and standing, in the view of the constitution, on the footing of a native. The constitution does not authorize Congress to enlarge or abridge those rights. The simple power of the national Legislature, is to prescribe a uniform rule of naturalization, and the exercise of this power exhausts it, so far as respects the individual.” Osborn v. Bank of United States, 9 Wheat. 738, 827. And see Luria v. United States, 231 U. S. 9, 22; United States v. MacIntosh, 283 U. S. 605, 624; Knauer v. United States, 328 U. S. 654, 658.

  59. avatar
    nbC May 24, 2010 at 3:30 pm #

    Saint James:
    subsequent statutes have not changed in that children born to US parent(s) are natural born citizens.http://www.usconstitution.net/consttop_citi.html

    The statutes removed the ‘natural born’ status and thus something did change. You argue that this did not affect their natural born status and yet, under US Common Law they would not have been considered to be natural born citizens. I see no reason why I should take the statement on the site you quote to be of any relevance.
    It’s ad hoc, unsupported by any argument and appears to be contradicted by many.

  60. avatar
    nbC May 24, 2010 at 3:37 pm #

    I checked out 1401 and while it mentions: citizen at birth, it does not explain how this relates to the concept of natural born citizen.

    The 14th Amendment explains that a citizen is either born on US soil or naturalized and does not appear to describe someone who acquires citizenship by virtue of being born a US citizen when born on foreign soil.

    This means that such a citizen is created through the powers of Congress to naturalize and thus the citizenship is statutory. In fact, it is not just statutory but also such a citizen is not considered to be a 14th Amendment citizen in that he was not born on US soil or naturalized on US soil.

    The court even points out that for a while children born abroad to US parent(s) were not citizens at all

    As hereinabove noted, persons born abroad, even of United States citizen fathers who, however, acquired American citizenship after the effective date of the 1802 Act, were aliens.

    It was not until 1855 that Congress rectified this.

  61. avatar
    Saint James May 24, 2010 at 3:45 pm #

    nbC: The statutes removed the natural born’ status and thus something did change. You argue that this did not affect their natural born status and yet, under US Common Law they would not have been considered to be natural born citizens. I see no reason why I should take the statement on the site you quote to be of any relevance.It’s ad hoc, unsupported by any argument and appears to be contradicted by many.

    Please don’t devaluate the site that I’ve quoted as unsupported by any argument and appears to be contradicted by many as that is not the case, instead please look into Title 8, section 1401 of the US code. I guess the US code speaks for itself and that based on the code, I am a living proof that indeed a child born abroad to US parent(s) can be natural born citizens.

  62. avatar
    Rickey May 24, 2010 at 3:48 pm #

    Saint James:
    My dad was a chief petty officer stationed in subic Naval Base and my mom worked in the navy exchange.They visited some friends in Cebu thinking that she was going to give birth in a months time but I guess, I was in a hurry to see the light of day LOL

    Thanks. I was there 1967-1969, but I never got farther south than Manila or farther north than Baguio.

    I agree with you, by the way. Anyone who is a U.S. citizen at birth is a natural-born citizen, in my opinion.

  63. avatar
    NbC May 24, 2010 at 3:52 pm #

    Saint James: Please don’t devaluate the site that I’ve quoted as unsupported by any argument and appears to be contradicted by many as that is not the case, instead please look into Title 8, section 1401 of the US code. I guess the US code speaks for itself and that based on the code, I am a living proof that indeed a child born abroad to US parent(s) can be natural born citizens.

    I find that argument, while compelling, also to be flawed. You are the living proof that children born abroad to us parents can be US citizens.
    I am not devaluating the site but rather its assertion. As I said I looked at title 8 section 1401 and it says nothing about natural born.
    Do you know that under Rogers v Bellei, you are not a 14th amendment citizen?

  64. avatar
    Saint James May 24, 2010 at 3:52 pm #

    Rickey: Thanks. I was there 1967-1969, but I never got farther south than Manila or farther north than Baguio.I agree with you, by the way. Anyone who is a U.S. citizen at birth is a natural-born citizen, in my opinion.

    It’s easy to argue anybody’s citizenship and I base my argument on my own situation and I have all the necessary papers to prove that indeed, I’m a Natural Born Citizen.

  65. avatar
    BatGuano May 24, 2010 at 3:52 pm #

    Scott Brown: We all KNEW from our history lessons that he was NOT eligible.

    did you get this information from a text book, teacher’s lecture or……. ???

  66. avatar
    NbC May 24, 2010 at 3:54 pm #

    Rickey: I agree with you, by the way. Anyone who is a U.S. citizen at birth is a natural-born citizen, in my opinion.

    Based on what? Other than your opinion?

  67. avatar
    NbC May 24, 2010 at 3:54 pm #

    Saint James: It’s easy to argue anybody’s citizenship and I base my argument on my own situation and I have all the necessary papers to prove that indeed, I’m a Natural Born Citizen.

    What paperwork do you believe prove that you are a natural born citizen?

  68. avatar
    Scientist May 24, 2010 at 4:03 pm #

    nbC: I honestly have to side with Saint James on this.

    The Constitution gives Congress the power: “To establish an uniform Rule of Naturalization”

    So they have rules for those born abroad to foreign parents. They have to come and reside permnanently in the US, be of good character, pass an exam, etc. For them, citizenship is a privilege, not a right.

    Those born abroad to US citizens don’t have those rules. They are automatically entitled to US citizenship, as right not a privilege. They can claim citizenship even if they never set foot in the US in their entire lives.

    If both of those types of citizens were naturalized, then the rules would not be uniform as required. This implies that those born to US citizens are not naturalized. If they are not naturalized, they are natural born.

    I feel you are taking your position because you think that acknowledging those born abroad to US citizen would somehow weaken the case for those born her. But, really, it doesn’t. It simply acknowledges that there are 2 ways to be a natural born citisen. So what?

    And you have to acknowledge that had McCain won, the chances of any court ruling him ineligible would have been extremely slow. Thus your position would likely not have been vindicated in an actual test. As a scientist, I have to say that a position that is not validated by experiment, is incorrect, no matter how convincingly it might be argued.

  69. avatar
    Saint James May 24, 2010 at 4:05 pm #

    NbC: I find that argument, while compelling, also to be flawed. You are the living proof that children born abroad to us parents can be US citizens.I am not devaluating the site but rather its assertion. As I said I looked at title 8 section 1401 and it says nothing about natural born.Do you know that under Rogers v Bellei, you are not a 14th amendment citizen?

    Section 1401 specifically stated “citizen at birth” and the first provision states…”anyone born inside the united states”…Is it fair to deduce that since a child is born inside the US that he is a natural born citizen?

    “Currently, Title 8 of the U.S. Code fills in the gaps left by the Constitution. Section 1401 defines the following as people who are “citizens of the United States at birth:”
    Anyone born inside the United States *”

  70. avatar
    Walter White May 24, 2010 at 4:11 pm #

    Saint James:
    Tell me where to send you my certificate of citizenship. Also research this. Section 341 of the Immigration and Nationality Act. Also research this Form N-560 (rev. 11-1-87)

    Why would a Natural born citizen need a form from INS. I’m a natural born citizen, born in a state of the US and I ain’t got no stink’n INS forms.

    You know why I ain’t got not stink’n INS form, because I’m a natural born citizen.

    At best, you’re a citizen of the US.

  71. avatar
    Saint James May 24, 2010 at 4:12 pm #

    NbC: What paperwork do you believe prove that you are a natural born citizen?

    Consular Report of Birth or FS-240…this was the original paper that my parents had as proof that I was born abroad to US citizen parents. I also used this FS-240 to get my driver’s license and my passport.

  72. avatar
    Slartibartfast May 24, 2010 at 4:12 pm #

    NbC:
    I find that argument, while compelling, also to be flawed. You are the living proof that children born abroad to us parents can be US citizens.
    I am not devaluating the site but rather its assertion. As I said I looked at title 8 section 1401 and it says nothing about natural born.
    Do you know that under Rogers v Bellei, you are not a 14th amendment citizen?

    You seem to be alleging that a natural born citizen must be a 14th amendment citizen. Personally, I don’t see anything in any of the statutes or cases that have been cited that is dispositive on the issue of whether or not ‘naturalized at birth’ citizens exist. The only thing I know of that directly addressed the issue was the Senate resolution declaring Senator McCain to be natural born (which is certainly not binding as law). Personally, I doubt this issue could ever be settled outside of the SCOTUS.

  73. avatar
    Saint James May 24, 2010 at 4:15 pm #

    Walter White: Why would a Natural born citizen need a form from INS. I’m a natural born citizen, born in a state of the US and I ain’t got no stink’n INS forms.You know why I ain’t got not stink’n INS form, because I’m a natural born citizen. At best, you’re a citizen of the US.

    LOL it’s simple you were born in the US…I was born in the Philippines. That’s the difference. However, you don’t have a sole entitlement to NBC…sorry!

  74. avatar
    Rickey May 24, 2010 at 4:16 pm #

    NbC:
    Based on what? Other than your opinion?

    Based upon my understanding that there are only two types of U.S. citizens, natural-born and naturalized.

    In order to be naturalized, a person has to comply with the following procedures:

    1. The applicant must be at least eighteen years old.
    2. The applicant must have proof that he or she entered the country lawfully.
    3. The applicant must have lived in the United States for five consecutive years (three years if the spouse of a citizen), and he or she must have lived for six months in the state in which the petition is filed.
    4. The applicant must be of good moral character, having two citizens to testify to the fact. According to U.S. law, an alien is not considered to be of good moral character if he or she is a drunkard, an adulterer, a bigamist or polygamist (having two or more wives at the same time), a professional gambler, a convicted murderer, or if he or she has lied to the Immigration and Naturalization Service or has been in jail more than 180 days during his or her five years in the United States.
    5. The applicant must demonstrate knowledge of the history and form of government of the United States and must be “attached to the principles of the Constitution.”
    6. The applicant must demonstrate an understanding of the English language and be able to speak, read, and write words in common usage. (This requirement is waived if the applicant has a handicap that does not permit him to do these things.)

    The declaration of intention is filed with the Immigration and Naturalization Service. Sometimes an investigation is conducted. Eventually the applicant is called in to be examined. If the results are satisfactory, the applicant’s file is sent to a court where the applicant can be sworn in as a citizen of the United States and receive a certificate of naturalization.

    Saint James says that he is a U.S. citizen, yet he has never gone through the naturalization process. If he has not gone through the naturalization process, has never been sworn in as a U.S. citizen, and has never received a certificate of naturalization, then I fail to see how he could possibly be a naturalized citizen. And if he is not a naturalized citizen, he must be a natural-born citizen.

    Article I, Section 8 gives the Congress the power to establish uniform rules of naturalization, but I fail to see where there is currently any rule in effect which covers children of U.S. citizens born abroad. The absence of a naturalization rule for such children tells me that Congress believes that no such rule is necessary. And I believe that the rule is unnecessary because such children are U.S. citizens at birth – hence, natural born.

  75. avatar
    G May 24, 2010 at 4:17 pm #

    d: This is perhaps the most singularly offensive notion in all the birther quackery. It is a pitiful fig leaf to try and introduce something obscene into respectable conversation. ALLEGIANCE AT BIRTH? You know, that’s a very ancient European concept, exactly the sort of mindset our Founders fled and ultimately rebelled against.

    The natural born citizen clause is a common sense provision intended to prevent someone who was European from waltzing over here, stirring up the locals with promises, getting elected and undermining the independence of what was then a very young and relatively weak country. The birthers twist that into an argument about the child being tainted at birth by allegiance to a country they don’t even know exists. Sounds a bit like “tainted in the blood,” doesn’t it? And where oh where would an American every get a concept about tainting of the blood in our history? Hmmm. What precedent in American history could possibly involve wondering about the fractional percentages of one’s blood, or should i say allegiance to an imaginary image of country that doesn’t involve certain types of people.

    You don’t take away the racial issue. You reinforce it with every unwitting (?) attempt to disguise it you and your German mothers make.

    Good points, d, and well said.

    Isn’t it funny how these birthers try to claim they are not birthers and then spout birther nonsense constantly.

    Isn’t it also funny how these same birthers try to claim that their motivations are only based on “the Constitution”, yet their own words demonstrate the bigotry driving their reasoning.

    Isn’t it also funny how they whine and try to attack this website as anti-democratic, just because nobody agrees with their nonsense, yet their posts and rants continue to appear showing their viewpoints?

    Because in reality, for folks like the birthers, you need to look like them, act like them, worship like them and think like them in order to be a “real american” in their eyes. They would happily take rights away from anyone different if they could get away with it.

    Its sad really, because what these folks seem to really want is the exact opposite of our democracy and our Constitution’s values – they are really after a totalitarian dictatorship, as long as it is based on and enforces their personal views.

  76. avatar
    Slartibartfast May 24, 2010 at 4:21 pm #

    Scientist: And you have to acknowledge that had McCain won, the chances of any court ruling him ineligible would have been extremely slow. Thus your position would likely not have been vindicated in an actual test. As a scientist, I have to say that a position that is not validated by experiment, is incorrect, no matter how convincingly it might be argued.

    I have to agree with you about the odds if this type of case ever went before the SCOTUS (presuming that you meant ‘low’ not ‘slow’ ;-)) as well as the fact that this invalidates nbC’s argument (although since I’m a scientist as well this could be the result of a bias we share). Furthermore, I can’t imagine that the founders intent was to bar children of US citizens (and especially children of US military personnel) born abroad from the presidency.

  77. avatar
    Saint James May 24, 2010 at 4:26 pm #

    Walter WhiteAt best, you’re a citizen of the US.

    Please help me out here…At best what kind of a US citizen am I? I definitely am not naturalized since I got my citizenship when I was born but you seem to deny my my status as NBC? Is there a 3rd kind of citizenship?

  78. avatar
    G May 24, 2010 at 4:26 pm #

    Rickey: Saint James says that he is a U.S. citizen, yet he has never gone through the naturalization process. If he has not gone through the naturalization process, has never been sworn in as a U.S. citizen, and has never received a certificate of naturalization, then I fail to see how he could possibly be a naturalized citizen. And if he is not a naturalized citizen, he must be a natural-born citizen.

    I fully concur. There are only two types of citizenship in America – natural born & naturalized, period. It really is that simple in the end.

  79. avatar
    Dr. Conspiracy May 24, 2010 at 4:38 pm #

    Saint James:
    Please help me out here…At best what kind of a US citizen am I? I definitely am not naturalized since I got my citizenship when I was born but you seem to deny my status as NBC?Is there a 3rd kind of citizenship?

    As you probably know, as a citizen born outside the United States, there are requirements placed on you that are not imposed on other citizens (or at least there used to be). The Supreme Court in Rogers v. Bellei, 401 U.S. 815 (1971) said that citizens neither born in the United States nor naturalized do not share the protections of the 14th Amendment.

    That said, S. Res. 511 declared John McCain (not born in the US) a natural born citizen. Reading early commentary on the Constitution, it seemed that it was not contemplated that those citizens born outside the United States were natural born citizens, while the very first Congress in 1790 declared that they were (although that Act was repealed 5 years later).

    While I personally think that you are a natural born citizen, I also believe that this is not a settled issue.

  80. avatar
    nbc May 24, 2010 at 4:39 pm #

    Scientist: The Constitution gives Congress the power: “To establish an uniform Rule of Naturalization”

    So they have rules for those born abroad to foreign parents. They have to come and reside permnanently in the US, be of good character, pass an exam, etc. For them, citizenship is a privilege, not a right.

    I agree so far. The Constitution provides Congress with the power to naturalize.

    Those born abroad to US citizens don’t have those rules. They are automatically entitled to US citizenship, as right not a privilege. They can claim citizenship even if they never set foot in the US in their entire lives.

    If both of those types of citizens were naturalized, then the rules would not be uniform as required. This implies that those born to US citizens are not naturalized. If they are not naturalized, they are natural born.

    It is not a right because as I have shown

    1. They are not 14th Amendment citizens under Rogers v Bellei and can thus be deprived of their citizenship
    2. From 1802 to 1855, such children were not even citizens.

    The logic simple and straightforward:

    Nartural born citizen was not defined in the Constitution and in Wong Kim Ark it was found to be defined in Common Law practices, which did NOT include children born abroad to US citizens.
    Such citizens did not acquire citizenship by birth on US soil, which came from Common Law but through statute, enacted by Congress. Congress cannot change Constitutional requirements through statute.

  81. avatar
    nbc May 24, 2010 at 4:40 pm #

    Scientist: nbC:I honestly have to side with Saint James on this.The Constitution gives Congress the power: “To establish an uniform Rule of Naturalization”So they have rules for those born abroad to foreign parents.They have to come and reside permnanently in the US, be of good character, pass an exam, etc.For them, citizenship is a privilege, not a right.Those born abroad to US citizens don’t have those rules.They are automatically entitled to US citizenship, as right not a privilege.They can claim citizenship even if they never set foot in the US in their entire lives.If both of those types of citizens were naturalized, then the rules would not be uniform as required.This implies that those born to US citizens are not naturalized.If they are not naturalized, they are natural born.I feel you are taking your position because you think that acknowledging those born abroad to US citizen would somehow weaken the case for those born her.But, really, it doesn’t.It simply acknowledges that there are 2 ways to be a natural born citisen.So what?And you have to acknowledge that had McCain won, the chances of any court ruling him ineligible would have been extremely slow.Thus your position would likely not have been vindicated in an actual test.As a scientist, I have to say that a position that is not validated by experiment, is incorrect, no matter how convincingly it might be argued.

    It weakens the position because it suddenly applies reason and logic in an ad hoc fashion. We object to others insisting that natural born should mean born to two US citizens and at the same time we insist that some people should be natural born because it makes ‘common sense’ to us.

  82. avatar
    nbc May 24, 2010 at 4:43 pm #

    Saint James: Section 1401 specifically stated “citizen at birth” and the first provision states…”anyone born inside the united states”…Is it fair to deduce that since a child is born inside the US that he is a natural born citizen?

    A logical fallacy. All X are Y, some X are Z, all X are thus Z.

    “Currently, Title 8 of the U.S. Code fills in the gaps left by the Constitution. Section 1401 defines the following as people who are “citizens of the United States at birth:”
    Anyone born inside the United States *”

    Yes, these are citizens of the US at birth. You do realize however that citizens at birth but born in a foreign country are not 14th Amendment citizens and their privilege to citizenship can be restricted or removed by Congress?

  83. avatar
    nbc May 24, 2010 at 4:45 pm #

    Slartibartfast: You seem to be alleging that a natural born citizen must be a 14th amendment citizen. Personally, I don’t see anything in any of the statutes or cases that have been cited that is dispositive on the issue of whether or not naturalized at birth’ citizens exist. The only thing I know of that directly addressed the issue was the Senate resolution declaring Senator McCain to be natural born (which is certainly not binding as law). Personally, I doubt this issue could ever be settled outside of the SCOTUS.

    And SCOTUS did settle the issue in Wong Kim Ark and revisited it in Rogers v Bellei. I could not care less that Congress made a non-binding resolution, so far the facts strongly point to McCain not being a natural born citizen.

  84. avatar
    Rickey May 24, 2010 at 4:46 pm #

    G:

    They would happily take rights away from anyone different if they could get away with it.

    Well said.

    I’ve been reading a book about the WWII internment of Japanese-Americans, and the book mentions a court case which I haven’t seen mentioned before, Regan v. King, 49 F. Supp. 222 – Dist. Court, ND California 1942. Regan, a private citizen, had for years been railing about immigrants from Japan, and he filed a lawsuit against the Registrar of Voters in San Francisco, demanding that Japanese-Americans who were born in the U.S. but whose parents were born in Japan should be stripped of their right to vote, on the grounds that they weren’t really U.S. citizens. Regan argued that the founders intended for only causcasians to be eligible for citizenship, and that the 14th amendment only applied to black people. The District Court rejected his arguments:

    49 F.Supp. 222 (1942)
    REGAN
    v.
    KING, Registrar of Voters.
    No. 22178-S.

    District Court, N. D. California, S. D.
    July 2, 1942.

    Webb, Webb & Olds, of San Francisco, Cal., for plaintiff.

    John J. O’Toole, City Atty., and Walter A. Dold, Asst. City Atty., both of San Francisco, Cal., for defendant.

    Charles R. Garry and Harold M. Sawyer, both of San Francisco, Cal., for National Lawyers Guild, amicus curiae.

    Wayne M. Collins, of San Francisco, Cal., for American Civil Liberties League, amicus curiae.

    ST. SURE, District Judge.

    Plaintiff, a citizen of the United States and of the State of California, a registered voter of San Francisco, sues the Registrar of Voters of the City and County of San Francisco, alleging that more than “2600 Japanese of the full blood born in the United States and the State of California, of alien parents born in the Empire of Japan,” are erroneously registered to vote in San Francisco. He further alleges that his rights and privileges as an elector, secured to him by law, are impaired by permitting ineligible persons [Japanese] to exercise the rights and privileges of electors of the State of California. He prays that the Registrar be directed to strike the names of all Japanese from the register of voters on the ground that they are enemy aliens, citizens of Japan, and therefore ineligible to citizenship and the right to vote.

    Defendant Registrar answers that Japanese born here are citizens of the United States and as such are entitled to be registered as voters, and asks to be dismissed with his costs.

    This case is exceptional because the sole question it presents to this court is one which has been definitely decided by the United States Supreme Court: Is a person of the Japanese race, born within the United States, a citizen? The question has been answered in the affirmative in United States v. Wong Kim Ark, 169 U. S. 649, 18 S.Ct. 456, 42 L.Ed. 890; Morrison v. California, 291 U.S. 82, 54 S.Ct. 281, 78 L.Ed. 664; and Perkins v. Elg, 307 U. S. 325, 59 S.Ct. 884, 83 L.Ed. 1320.

    Counsel for plaintiff frankly stated that he was asking this court to overrule the leading case of United States v. Wong Kim Ark, supra, because he believed the decision was erroneous. Since the decision was rendered it has been twice cited with approval by the Supreme Court in Morrison v. California, supra, and in Perkins v. Elg, supra. In the Morrison case Justice Cardozo, speaking for the Court, said [291 U.S. 82, 54 S.Ct. 283, 78 L.Ed. 664]: “A person of the Japanese race is a citizen of the United States if he was born within the United States.” In the Perkins case, Chief Justice Hughes delivering the opinion, it was held that a child born here of alien parentage becomes a citizen of the United States.

    It is unnecessary to discuss the arguments of counsel. In my opinion the law is settled by the decisions of the Supreme Court just alluded to, and the action will be dismissed, with costs to the defendant.

    Three months later the Court of Appeals denied cert:

    On the authority of the Fourteenth Amendment to the Constitution, § 1, making all persons born in the United States citizens thereof, as interpreted by the Supreme Court of the United States in United States v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890, and a long line of decisions, including the recent decision in Perkins, Secretary of Labor et al. v. Elg., 307 U.S. 325, 59 S.Ct. 884, 83 L.Ed. 1320, the judgment of dismissal, 49 F.Supp. 222, is affirmed.

    http://scholar.google.com/scholar_case?case=6032970096611219625&hl=en&as_sdt=2&as_vis=1&oi=scholarr

    http://scholar.google.com/scholar_case?case=5477286192242898194&hl=en&as_sdt=2&as_vis=1&oi=scholarr

  85. avatar
    nbc May 24, 2010 at 4:47 pm #

    Saint James: Consular Report of Birth or FS-240…this was the original paper that my parents had as proof that I was born abroad to US citizen parents. I also used this FS-240 to get my driver’s license and my passport.

    Sure, you are considered a citizen of the United States. So how do you establish that you are a natural born citizen?

  86. avatar
    nbc May 24, 2010 at 4:50 pm #

    Slartibartfast: I have to agree with you about the odds if this type of case ever went before the SCOTUS (presuming that you meant low’ not ’slow’ 😉 ) as well as the fact that this invalidates nbC’s argument (although since I’m a scientist as well this could be the result of a bias we share). Furthermore, I can’t imagine that the founders intent was to bar children of US citizens (and especially children of US military personnel) born abroad from the presidency.

    Whether or not there as such an intent or not is irrelevant. That’s like arguing that Founders never intended for ‘anchor babies’ to be considered US citizens. Early Congress attempted to rectify the oversight by passing a statute that declared such children natural born. Subsequent versions of the statute removed the “natural born” status and in fact from 1802 to 1855, such children were not even considered to be citizens.

  87. avatar
    nbc May 24, 2010 at 4:51 pm #

    G: I fully concur. There are only two types of citizenship in America – natural born & naturalized, period. It really is that simple in the end.

    I concur. Under that assumption, children born abroad to US citizens are naturalized.

  88. avatar
    nbc May 24, 2010 at 4:54 pm #

    Saint James: Please help me out here…At best what kind of a US citizen am I? I definitely am not naturalized since I got my citizenship when I was born but you seem to deny my my status as NBC? Is there a 3rd kind of citizenship?

    Naturalized. You appear to be arguing that since you are a citizen at birth, you cannot be naturalized. Let me explain: Congress can only regulate through statute, who and how people are naturalized. Since you gained your citizenship status through statute, and since the statute can be revoked or restricted, it is far from clear that you are natural born.
    Unlike natural born citizens, your citizenship can be lost by failing to meet certain requirements, and your citizenship depends on continued existence of the statute. Unlike citizens naturalized in the US, you are not a 14th Amendment citizen and thus you are not protected as such.

  89. avatar
    Scientist May 24, 2010 at 4:54 pm #

    nbc: 2. From 1802 to 1855, such children were not even citizens.

    Then those born during that period would not have eligible to run for President. Those born after were and are. If Congress were to change the law in the future, those born after that date might not be. Amendments can be voided as well (prohibition). Suppose the 14th were annulled (not likely but theoretically possible), then would everyone lose their citizenship? I don’t think so.

    nbc: We object to others insisting that natural born should mean born to two US citizens

    I am taking a completely opposite position from the birthers. They believe where there is any doubt (even fictionally), that person should be ineligible, regardless of the the voters, Congress, whoever. I say that the voters and Congress must, because we are a democracy, be given the widest deference. Only where it is absolutely positively clear that the person is not a natural born citizen (say Schwarzenegger) should they be denied (and even then, I have doubts). This is not ad hoc; it is the same thing that is done with all laws. Laws passed by Congress are only invalidated if they clearly violate the Constitution. If it is uncertain, the law, as a reflection of the will of the voters, stands.

  90. avatar
    Saint James May 24, 2010 at 4:55 pm #

    nbc: Sure, you are considered a citizen of the United States. So how do you establish that you are a natural born citizen?

    Look! there are only 2 types of US citizenships. I did not go through the process of naturalization. I’ve travelled to and from the Philippines ever since I was in the elementary grades with a US passport. I did not have to go to any INS offices to be sworn in as a citizen.

    So if I’m considered a citizen of the united states do I belong to a sub-section of NBC?

  91. avatar
    Arthur May 24, 2010 at 4:56 pm #

    Whenever Scott Brown leaves a post, I enjoy reading the informative comments that follow. Nevertheless, I think Scott Brown is a craven shastard who lacks the commitment and intellectual acumen to defend the things shim says (“shastard” and “shim” are my gender-free neologisms for “bastard” and “she/he”–more to follow).

    I have repeatedly asked Scott Brown to explain shimself; not to debate shim, but to try to understand shers world view. Shim’s never bothered to do reply to me, and dag-nab it, I’m a little peeved.

    That’s why, If I were king for a day, I would have Scott Brown mounted in a dunk tank. Shim would be asked questions, but whenever shim tried to speak, children born in the U.S. to illegal immigrants would throw baseballs at a lever that if hit, would plop shim into a tub labeled, “S.S. St. Louis.” The tub would be filled with the tears of all the people who had ever sought refuge in the U.S., but who had been turned away because they they were poor, or came from the wrong country, or believed in the wrong religion, or were born with the wrong skin color. The dunking would continue until Scott Brown had swallowed the all tears that filled the tub. Shim would emerge swollen with the misery that people like shim had caused other people.

  92. avatar
    nbc May 24, 2010 at 4:57 pm #

    Rickey: Saint James says that he is a U.S. citizen, yet he has never gone through the naturalization process. If he has not gone through the naturalization process, has never been sworn in as a U.S. citizen, and has never received a certificate of naturalization, then I fail to see how he could possibly be a naturalized citizen. And if he is not a naturalized citizen, he must be a natural-born citizen.

    You are confusing specific implementations of a particular form of naturalization here. Children born abroad to US citizens acquire citizenship through statute and such statute can be removed or restricted. That’s what defines naturalization: the process is statutory.

    Do you know that children born abroad to US citizen(s) are not 14th Amendment citizens and can in fact lose their citizenship through failure to follow simple procedural steps? Unlike for instance Natural Born citizens, whose citizenship cannot be taken away even if they have voted in foreign elections or even have run for office?

  93. avatar
    nbc May 24, 2010 at 4:58 pm #

    Rickey: Article I, Section 8 gives the Congress the power to establish uniform rules of naturalization, but I fail to see where there is currently any rule in effect which covers children of U.S. citizens born abroad.

    It’s called Immigration and naturalization acts. From 1790 onward…

  94. avatar
    nbc May 24, 2010 at 5:01 pm #

    Saint James: Look! there are only 2 types of US citizenships. I did not go through the process of naturalization. I’ve travelled to and from the Philippines ever since I was in the elementary grades with a US passport. I did not have to go to any INS offices to be sworn in as a citizen.

    So if I’m considered a citizen of the united states do I belong to a sub-section of NBC?

    You may not have one through a process of naturalization in the United States, which is why your status is not covered by the 14th Amendment. Your status follows from statute which can be restricted or removed. As such you are more like a naturalized citizen with the main difference that you have not gone through naturalization process in the United States.

    Sure, you are as much a citizen as any other citizen, with minor constraints as to issues such as expatriation. It is hardly self evident that since you are a citizen, you must be a natural born citizen, whose status follows from Common Law, not statutory provisions.

  95. avatar
    Slartibartfast May 24, 2010 at 5:02 pm #

    nbc:
    And SCOTUS did settle the issue in Wong Kim Ark and revisited it in Rogers v Bellei.I could not care less that Congress made a non-binding resolution, so far the facts strongly point to McCain not being a natural born citizen.

    I am unaware of any quote from the Wong Kim Ark decision that settled this issue (admittedly I haven’t read it all) and saw nothing in the quote from Rogers v. Bellei that you posted that equated 14th amendment citizens with natural born citizens. I’m with Doc C on this – it’s not settled, but I think Saint James can run for president.

  96. avatar
    Saint James May 24, 2010 at 5:04 pm #

    nbc: You are confusing specific implementations of a particular form of naturalization here. Children born abroad to US citizens acquire citizenship through statute and such statute can be removed or restricted. That’s what defines naturalization: the process is statutory.

    Now you need to prove that there is a separate process of implimentation for naturalizing those who were born abroad. There is no such thing! To be naturalized is to be physically present in a US territory. Since children born abroad acquire citizenship through statutes makes that process naturalization? You’re trying to bend some logic here!

  97. avatar
    nbc May 24, 2010 at 5:05 pm #

    Scientist: Then those born during that period would not have eligible to run for President. Those born after were and are.

    That does not make sense. People are arguing that it is a right not a privilege and I showed that it was not. I showed that unlike natural born citizens, the status of these children can be removed or restricted by Congress, making it clear that this is part of the powers granted to Congress under the naturalization clause.

    It does not make sense that Congress can circumvent the Constitution through statutory law. You do realize the dangers as under your arguments, people could argue that Congress has the power to take away citizenship status to children born on US soil to aliens.
    It’s a two-edged sword and no matter how much we would wish for these children to be natural born, we should be careful not to abandon Constitutional principles, even when they may appear to be outdated.

  98. avatar
    Scientist May 24, 2010 at 5:05 pm #

    nbc: do realize however that citizens at birth but born in a foreign country are not 14th Amendment citizens and their privilege to citizenship can be restricted or removed by Congress?

    Can be, but unless Congress does so, not. Breathing could be made illegal, but unless such a law is passed, it remains legal.

    nbc: so far the facts strongly point to McCain not being a natural born citizen.

    But you have admitted in previous discussions that had he won the election he would be in the White House. So what is the relevance of your opinion?

  99. avatar
    nbc May 24, 2010 at 5:08 pm #

    Saint James: Now you need to prove that there is a separate process of implimentation for naturalizing those who were born abroad. There is no such thing! To be naturalized is to be physically present in a US territory. Since children born abroad acquire citizenship through statutes makes that process naturalization? You’re trying to bend some logic here!

    Not really. I am stating that there are those who are born on US soil, there are those who are naturalized on US soil and there are those who become non-14th Amendment citizens by virtue of not being born on US soil or naturalized on US soil. Check our Rogers v Bellei.
    Both naturalization in the US as well as citizenship by virtue of birth to US citizens born abroad are guided by statute under the naturalization powers of Congress.
    You seem to think that I am making up these facts? Check out the 1790 or 1795 act which made (temporarily) children born abroad to US fathers, natural born citizens The act was passed under the naturalization clause of the Constitution. Which is likely why the next statute did not mention ‘natural born’ anymore.

  100. avatar
    Slartibartfast May 24, 2010 at 5:09 pm #

    nbc:
    Whether or not there as such an intent or not is irrelevant. That’s like arguing that Founders never intended for anchor babies’ to be considered US citizens. Early Congress attempted to rectify the oversight by passing a statute that declared such children natural born. Subsequent versions of the statute removed the “natural born” status and in fact from 1802 to 1855, such children were not even considered to be citizens.

    You’re arguing apples and oranges – the question of the intent of ‘anchor babies’ must be assigned to the writers of the 14th amendment, not the founders (and there is no evidence that either group would have been aware of the concept of anchor babies, while they were obviously aware of the concept of children born abroad to US parents). And isn’t it a part of the job of the SCOTUS to determine the intent of the founders (and the writers of the various amendments) as laid out in the Constitution?

  101. avatar
    nbc May 24, 2010 at 5:10 pm #

    Slartibartfast: I am unaware of any quote from the Wong Kim Ark decision that settled this issue (admittedly I haven’t read it all) and saw nothing in the quote from Rogers v. Bellei that you posted that equated 14th amendment citizens with natural born citizens. I’m with Doc C on this – it’s not settled, but I think Saint James can run for president.

    It is somewhat indirect and the dissenting Judge appeals to the argument by pointing out that under the logic of the Majority, children born abroad to US citizens would not be able to run for president while children born to aliens (especially suspect aliens) would be able to run for President.

    The argument is simple and was explored by Binney in Alligenae. Common Law practices only refer to birth on soil. Jus sanguini was implemented through statutory law and as such could not override constitutional terms.

  102. avatar
    Scientist May 24, 2010 at 5:10 pm #

    nbc: It does not make sense that Congress can circumvent the Constitution through statutory law. You do realize the dangers as under your arguments, people could argue that Congress has the power to take away citizenship status to children born on US soil to aliens.

    No. The 14th amendment bars that. Congress cannot do what the Constitution prohibits. But the Constitution does NOT prohibit making the children of citizen born abroad natural born citizens. So Congress has done so. Yes, they could decide that those born overseas starting tomorrow are not, but they can’t take away what has been granted to those born previously. Nor can they touch those granted citizenship by the Constitution.

    The Constitution is a floor on rights, not a ceiling.

  103. avatar
    nbc May 24, 2010 at 5:14 pm #

    Slartibartfast: You’re arguing apples and oranges – the question of the intent of anchor babies’ must be assigned to the writers of the 14th amendment, not the founders (and there is no evidence that either group would have been aware of the concept of anchor babies, while they were obviously aware of the concept of children born abroad to US parents). And isn’t it a part of the job of the SCOTUS to determine the intent of the founders (and the writers of the various amendments) as laid out in the Constitution?

    That is incorrect, the 14th Amendment merely captured the meaning of Natural Born as it existed when the Constitution was ratified.
    Sometimes intent cannot easily be captured as it involves sentiments of centuries past. We do know that the Founders passed legislation under the naturalization provision to extend natural born status to children born abroad to US citizens who up to that moment were non-citizens. In the subsequent statute the term natural born was dropped.

    While Congress may normalize naturalization processes under the Constitution, they do not have the right to amend Constitutional definitions. If we were to accept this then statutory law would be sufficient to redefine who is and who is not a natural born citizen. That would run counter to the Constitution which relies on amendments to affect such changes.

  104. avatar
    nbc May 24, 2010 at 5:17 pm #

    Scientist: No. The 14th amendment bars that. Congress cannot do what the Constitution prohibits. But the Constitution does NOT prohibit making the children of citizen born abroad natural born citizens. So Congress has done so. Yes, they could decide that those born overseas starting tomorrow are not, but they can’t take away what has been granted to those born previously. Nor can they touch those granted citizenship by the Constitution.

    I agree that they cannot touch the citizenship granted by the Constitution but then they cannot either expand nor contract the meaning or the Constitution becomes irrelevant as it can be expanded as necessary through statute rather than through Amendment.

  105. avatar
    Bovril May 24, 2010 at 5:19 pm #

    This one does take us down the rabbit hole.

    There have already, by many of the posters taking the contrary position, been blanket statements that the birther vision of 3 types of citizen is wholly erroneous. Something I wholly agree with.

    There is NO legal separation into Natural BC and Native BC, it’s wholly birther BS.

    As such Saint James is one of the only two types of citizen, the NBC or the Naturalized.

    Whilst some are arguing that that SJ is a “naturalized” citizen, what legal current legal basis is there to support this view?

    He most certainly never had to “be naturalized”, he never had to stand before legal authority and swear allegiance, he had never had to be first a legal resident for 5 years and apply for naturalization, nor be a member of the US Armed forces for a period of greater than one year.

    He doesn’t fall into a veteran category or does he fall into the Child Citizenship Act of 2000

    He was born to two US citizen parents in another country was registered at birth with the local consul and as per section 301(c) of the Immigration and Nationality Act is regarded as a US citiizen from the moment of birth in the same manner as a US local birth.

    Ergo he is an NBC.

    Parsing it out as “it was via statute” doesn’t change the fundamentals, why in that case raise WKA etc all. 5 minutes before theses ruling (and statutes associated) “anchor babies” didn’t exist

  106. avatar
    nbc May 24, 2010 at 5:20 pm #

    Scientist: No. The 14th amendment bars that.

    Some argue that the requirement; Under jurisdiction of the US would allow statutes to correct this oversight of granting citizenship to anchor babies. How is that different from allowing people to expand the definition of natural born to include for instance anyone, naturalized or not?
    The intentions of the Founders clearly was to restrict eligibility to the president to exclude aliens and naturalized citizens. While Congress can extend who can be naturalized, they cannot extend the meaning of Constitutional terms.
    Or we would have the situation that the reason for the eligibility clause, to exclude naturalized citizens, would be no objection to extending it to this class through simple statute.

  107. avatar
    nbc May 24, 2010 at 5:22 pm #

    Bovril: There is NO legal separation into Natural BC and Native BC, it’s wholly birther BS.

    As such Saint James is one of the only two types of citizen, the NBC or the Naturalized.

    Whilst some are arguing that that SJ is a “naturalized” citizen, what legal current legal basis is there to support this view?

    Well, let’s see

    1. Wong Kim Ark
    2. Rogers v Bellei

    So far I agree with your argument that one is either natural-ized or natural-born, where the latter comes from our Common Law and the former through statute. Since Common Law did not recognize children born abroad to US citizens as citizens, let alone natural born citizens, there is only one logical alternative. Which is why Congress extended citizenship to those children under their naturalization powers.

  108. avatar
    nbc May 24, 2010 at 5:23 pm #

    Bovril: He was born to two US citizen parents in another country was registered at birth with the local consul and as per section 301(c) of the Immigration and Nationality Act is regarded as a US citiizen from the moment of birth in the same manner as a US local birth.

    Ergo he is an NBC.

    You may now be confusing citizen by birth with citizen at birth. Two very different concepts.

  109. avatar
    Rickey May 24, 2010 at 5:25 pm #

    nbc:
    You are confusing specific implementations of a particular form of naturalization here. Children born abroad to US citizens acquire citizenship through statute and such statute can be removed or restricted. That’s what defines naturalization: the process is statutory.Do you know that children born abroad to US citizen(s) are not 14th Amendment citizens and can in fact lose their citizenship through failure to follow simple procedural steps? Unlike for instance Natural Born citizens, whose citizenship cannot be taken away even if they have voted in foreign elections or even have run for office?

    I see where you are coming from, but I don’t agree with your conclusion. Here is Black’s definition of “naturalized citizen”:

    One who, being an alien at birth, has received citizenship under naturalization laws.

    This does not apply to Saint James, unless it is your contention that he was “an alien at birth.”

    And Black’s definition of “naturalization”:

    The process by which a person acquires nationality after birth and becomes entitled to the privileges of citizenship. [emphasis mine]

    Saint James acquired his U.S. citizenship at birth, not after birth.

    Black’s goes on to say, “Individual naturalization must follow certain steps… (petition, residency, investigation., etc.) [emphasis mine]

    None of those steps were followed by Saint James, yet he is a citizen.

    It seems to me that Saint James would be more properly called a “statutory citizen” rather than a “naturalized citizen,” but I don’t agree that a statutory citizen cannot be a natural-born citizen. Again, take a look at Black’s definition of “Native”:

    A natural-born subject or citizen; a citizen at birth…This term may also include one born abroad, if his parents were then citizens of the country, and not permanently residing in foreign parts.

    It would seen that Saint James fits the definition of native, and in my opinion that makes him a natural-born citizen.

  110. avatar
    Greg May 24, 2010 at 5:27 pm #

    Scott Brown: For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH.

    So, your common sense tells you that it only matters what a child’s allegiances are AT BIRTH.

    But, the law and history tell you that children born on a US military base, to US soldiers, is NOT eligible for the Presidency.

    Either your common sense is telling you that a child born to US soldiers on a US military base is somehow conflicted in her allegiances, or you are admitting that the law of the situation conflicts with your common sense.

    That’s what the dissent in WKA felt about the decision. They thought it conflicted with THEIR common sense that Wong should be eliglble for the Presidency, but the children of US citizens born abroad wouldn’t be. (The former being the obvious result of the holding of WKA, the latter being the dicta from the case.)

  111. avatar
    nbc May 24, 2010 at 5:27 pm #

    Bovril: There have already, by many of the posters taking the contrary position, been blanket statements that the birther vision of 3 types of citizen is wholly erroneous. Something I wholly agree with.

    As do I. However we should thus be consistent in our applications of logic, reason and facts. And even though I disagree that there are 3 types of citizens, there is the inevitable fact that children born abroad to US citizens are not 14th Amendment citizens and cannot be citizens by birth. The question now is: how do they achieve citizenship status. First of all, it is a privilege not a right, that is expressed through statute and such statute may be revoked or restricted. That such statutes are passed under the naturalization powers of Congress furthermore suggest that they point to naturalization. as I understand the law, a child born abroad is not a US citizen until it has received its FS-240. And while the statute allows the child retroactively to be considered a citizen at birth (not by birth) this should not be confused with natural born or birth within the United States.

  112. avatar
    nbc May 24, 2010 at 5:32 pm #

    Rickey: One who, being an alien at birth, has received citizenship under naturalization laws.

    This does not apply to Saint James, unless it is your contention that he was “an alien at birth.”

    That would appear to be an inevitable conclusion. Since his status is guided by laws passed under the naturalization clause of the Constitution, such a child is born an alien and when the FS-240 has been filled out, he is considered a US citizen at birth but not by birth.
    I agree these are tricky concepts however we can avoid confusion by observing that citizenship is either by birth or it is granted through statutory law. The former is natural-born, the latter natural-ized.

  113. avatar
    Greg May 24, 2010 at 5:36 pm #

    nbc: And SCOTUS did settle the issue in Wong Kim Ark and revisited it in Rogers v Bellei. I could not care less that Congress made a non-binding resolution, so far the facts strongly point to McCain not being a natural born citizen.

    WKA’s statements about children born abroad to US citizens is dicta (unlike their statements about the meaning of NBC, which are ratio decendi). Personally, I think the meaning of NBC is found, at its heart, in the meaning of ligeance defined in Calvin’s Case. And that decision, despite there also being statutory support for the conclusion, placed the status of Natural Born onto those born within the physical borders of the King and also abroad if to those born to subjects of the King. It did so, not because of the statutes which defined the phrase to include those abroad, but on Lord Coke’s conception of natural allegiance and his reading of common and “natural” law. I think that the founders’ conception of natural allegiance came from this case – most lawyers in the day studied for the bar by reading Coke – and NOT from the statutory supports.

    Obviously, there has been scholarly debate about the issue (where there has been almost none about whether the children of aliens are eligible) I think the arguments are more solidly on the side of McCain being eligible.

  114. avatar
    nbc May 24, 2010 at 5:38 pm #

    Note that for instance, children born abroad to US citizens had to make a formal declaration and take an oath of allegiance when reaching the age of majority. While some of these restrictions were lifted, it shows that birth abroad required a separate oath and declaration.

    Appended is the text of Section 1993 of the Revised Statutes and of Section 6 of the Act of March 2, 1907.

    You are instructed that children born abroad whose parents were American citizens at the time of their birth should report to a convenient American consul upon reaching the age of 18 years and before they have reached the age of 19 years and make a solemn declaration in the following form:

  115. avatar
    nbc May 24, 2010 at 5:46 pm #

    Greg: WKA’s statements about children born abroad to US citizens is dicta (unlike their statements about the meaning of NBC, which are ratio decendi). Personally, I think the meaning of NBC is found, at its heart, in the meaning of ligeance defined in Calvin’s Case. And that decision, despite there also being statutory support for the conclusion, placed the status of Natural Born onto those born within the physical borders of the King and also abroad if to those born to subjects of the King.

    Actually the latter part was through explicit statute not through common law practices. I am not even sure that at the time of Calvin these statutes were in place. Let me check.

    And yes, this is all dicta and while it cannot be relied upon, it gives us a guidance as to the logic the court used to find why WKA was natural born. In fact, such children were born out of the ligeance of the King.

    The common law has been uniformly held to be otherwise An alien is a subject that is born out of the ligeance of the King and under the ligeance of another and can have no real or personal action for or concerning land but in every such action the tenant or defendant may plead that he was born in such a country which is not within the Iigeance of the King and demand judgment s ia be answered Calvin’s case 7 Rep 16 a 15

    Source; Horace Binney

  116. avatar
    nbc May 24, 2010 at 5:47 pm #

    Greg: Obviously, there has been scholarly debate about the issue (where there has been almost none about whether the children of aliens are eligible) I think the arguments are more solidly on the side of McCain being eligible.

    I wish I were that convinced.

  117. avatar
    Dr. Conspiracy May 24, 2010 at 6:33 pm #

    nbc: I agree these are tricky concepts however we can avoid confusion by observing that citizenship is either by birth or it is granted through statutory law. The former is natural-born, the latter natural-ized.

    I think Rogers v Bellei excludes this possibility. If those born citizens outside the United States were naturalized, then they would be entitled to equal protection and could not be required to take any oath. This is not, however, the conclusion in Rogers.

  118. avatar
    nbc May 24, 2010 at 6:36 pm #

    I think Rogers v Bellei excludes this possibility. If those born citizens outside the United States were naturalized, then they would be entitled to equal protection and could not be required to take any oath. This is not, however, the conclusion in Rogers.

    The conclusion was that they were not “naturalized in the United States” which does not preclude from naturalization outside the United States.

  119. avatar
    nbc May 24, 2010 at 6:38 pm #

    Miller v Albright

    The Constitution “contemplates two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U. S. 649, 702 (1898). Under the Fourteenth Amendment, “[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” Ibid. Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and “can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress.” Id., at 702-703; see also Rogers v. Bellei, 401 U. S. 815, 827 (1971). Here it is the “authority of Congress” that is appealed toโ€” its power under Art. I, ง 8, cl. 4, to “establish an uniform Rule of Naturalization.” If there is no congressional enactment granting petitioner citizenship, she remains an alien.

    The enactment on which petitioner relies is ง 309 of the Immigration and Nationality Act (INA), 66 Stat. 238, as amended, 8 U. S. C. ง 1409, which establishes the requirements for the acquisition of citizenship by a child born out of wedlock when the child’s father is a United States citizen. Section 1409(a) provides, in relevant part, that ง 1401(g), which confers citizenship on foreign-born children when one parent is an alien and the other a citizen of the United States, shall apply:

  120. avatar
    nbc May 24, 2010 at 6:41 pm #

    And footnote 15 from Miller v Albright

    Though petitioner claims to be a citizen from birth, rather than claiming an immigration preference, citizenship does not pass by descent. Rogers v. Bellei, 401 U. S. 815, 830 (1971). Thus she must still meet the statutory requirements set by Congress for citizenship. Id., at 828-830; United States v. Ginsberg, 243 U. S. 472, 474 (1917). Deference to the political branches dictates “a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.” Mathews v. Diaz, 426 U. S. 67, 82 (1976). Even if, as petitioner and her amici argue, the heightened scrutiny that normally governs gender discrimination claims applied in this context, see United States v. Virginia, 518 U. S. 515, 532-534 (1996), we are persuaded that the requirement imposed by ง 1409(a)(4) on children of unmarried male, but not female, citizens is substantially related to important governmental objectives.

  121. avatar
    nbc May 24, 2010 at 6:45 pm #

    US v Matheson 532 F. 2d 809 – Court of Appeals, 2nd Circuit 1976

    Appellant offers several grounds for distinguishing Afroyim and the “subjective-standard” cases which have followed in its wake. However, none of these distinctions is persuasive. First, he argues that Rogers v. Bellei, 401 U.S. 815, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971), constitutes a sub silentio overruling of Afroyim. We disagree. In Rogers the Court upheld the constitutionality of § 301(b) of the Immigration and Nationality Act of 1952, which provides that one who acquires American citizenship overseas through birth abroad to an American parent shall lose this citizenship unless he resides in this country for a minimum five-year interval between the ages of 14 and 28. As Justice Blackmun took pains to point out, Afroyim was not thereby repudiated, since it dealt with citizenship that is constitutionally protected under the Fourteenth Amendment, i. e., citizenship derived by virtue of birth in the United States or by naturalization in the United States, see, e. g., id. at 822, 823, 827, 828, and 835, 91 S.Ct. at 1064, 1065, 1067, 1071, 28 L.Ed.2d 504, 505, 507, 511, whereas the citizenship at issue in Rogers owed its existence solely to an act of Congress. What Congress granted it had the power to take away or to modify by subjecting its “generosity” to appropriate conditions precedent or subsequent, id. at 835, 91 S.Ct. at 1071, 28 L.Ed.2d at 511, even though it would be powerless to strip a person of constitutionally-protected citizenship on the same grounds in the absence of a voluntary relinquishment on the citizen’s part. Since Mrs. Burns was a United States citizen by birth, she could not lose her citizenship in the absence of proof that she intentionally relinquished it.

  122. avatar
    Rickey May 24, 2010 at 6:46 pm #

    nbc:
    That would appear to be an inevitable conclusion. Since his status is guided by laws passed under the naturalization clause of the Constitution, such a child is born an alien and when the FS-240 has been filled out, he is considered a US citizen at birth but not by birth.

    Isn’t that self-contradicting? You’re saying that Saint James was an alien at birth, but after his FS-240 was filed he became a U.S. citizen at birth. How can he be both an alien at birth and a citizen at birth?

    You seem to be arguing that the FS-240 is, for an American born abroad, a necessary requirement for citizenship. I don’t see it that way. I see it as documentation of citizenship, not a requirement for citizenship. The FS-240 documents citizenship, but it does not grant citizenship.

  123. avatar
    Saint James May 24, 2010 at 6:56 pm #

    nbc: The conclusion was that they were not “naturalized in the United States” which does not preclude from naturalization outside the United States.

    You cited Rogers v Bellei (1971)…This was repealed in 1978

    1978 citizenship law amendments (Pub.L. 95-432)
    On 10 October 1978, President Carter signed Public Law 95-432 (92 Stat. 1046; 1978 U.S. Code Congressional and Administrative News 2521). This bill repealed several provisions which had previously allowed revocation of US citizenship.

    Some of the provisions abolished by Pub.L. 95-432 had already been rendered unenforceable by the Supreme Court. For example, the bill repealed provisions revoking citizenship for voting in foreign elections (Afroyim v. Rusk), moving abroad following naturalization (Schneider v. Rusk), and desertion from the armed forced during wartime (Trop v. Dulles) were all repealed.

    Certain other provisions were also repealed, however — not because of adverse Supreme Court rulings, but because (judging from the legislative history) Congress appears to have decided these provisions were rarely used and/or were not worth keeping. For example, Pub.L. 95-432 repealed provisions revoking citizenship of foreign-born US citizens who failed to move back to the US as adults (a rule upheld by the Supreme Court in Rogers v. Bellei); children who failed to move back to the US as adults after their parents had lost or given up US citizenship (a weaker version of the rule previously struck down in Perkins v. Elg); and dual nationals who lived abroad and had voluntarily claimed benefits of a foreign citizenship as adults. It should be noted that the abolition of these provisions was not made retroactive; people who had lost US citizenship under these provisions did not automatically get it back.

  124. avatar
    nbc May 24, 2010 at 6:56 pm #

    Rickey: Isn’t that self-contradicting? You’re saying that Saint James was an alien at birth, but after his FS-240 was filed he became a U.S. citizen at birth. How can he be both an alien at birth and a citizen at birth?

    Which is why the concept of ‘at birth’ is unnecessarily confusing.

    As Elias v Dep of State explain Bellei

    The Supreme Court in Rogers v. Bellei, 401 U.S. 815, 91 S.Ct. 1060, 28 L.Ed.2d 499 (1971), distinguished between Fourteenth Amendment citizenship and citizenship bestowed by the power of Congress pursuant to Article I, section 8, paragraph 4 of the Constitution. The Fourteenth Amendment grants citizenship to “[a]ll persons born or naturalized in the United States….” If a person qualifies for such citizenship, Congress cannot take it away absent the assent of that person. Afroyim v. Rusk, 387 U.S. 253, 87 S.Ct. 1660, 18 L.Ed.2d 757 (1967). Plaintiff does not qualify for such citizenship. Thus, her claim to citizenship depends upon Congress’ exercise of its power to grant citizenship to non-naturalized persons and those not born within the United States.

    So in fact, as I argued, such citizens are naturalized under Article I section 8, which grants Congress the power to establish uniform rules of naturalization. So, under this interpretation, such children were indeed naturalized and became citizens at birth although in earlier times, they were required to swear an oath of allegiance and declaring their intentions when reaching the age of majority.

    A Consular Report of Birth can be prepared only at an American consular office overseas while the child is under the age of 18. Usually, in order to establish the child’s citizenship under the appropriate provisions of U.S. law, the following documents must be submitted:

  125. avatar
    G May 24, 2010 at 6:57 pm #

    Rickey: You seem to be arguing that the FS-240 is, for an American born abroad, a necessary requirement for citizenship. I don’t see it that way. I see it as documentation of citizenship, not a requirement for citizenship. The FS-240 documents citizenship, but it does not grant citizenship.

    That would be my view on this issue as well.

  126. avatar
    nbc May 24, 2010 at 6:58 pm #

    Saint James: You cited Rogers v Bellei (1971)…This was repealed in 1978

    Bellei was not repealed. Congress revised the statutes to not require citizens born abroad to swear an oath when reaching age of 18th and file a declaration.

    Rogers v Bellei stands and continues to be quoted as evidence that children born abroad gain citizenship under statute based on the Constitutional Naturalization provision and that such citizens are not 14th amendment citizens.

    Hope this clarifies. It’s a subtle but important distinction as Congress could not undo a Constitutional issue through statute.

  127. avatar
    Tomtech May 24, 2010 at 7:00 pm #

    Saint James: The official record is in the form of a Consular Report of Birth Abroad of a Citizen of the United States of America. This document, referred to as the Consular Report of Birth or FS-240,

    I got one of those. See redacted image here.

  128. avatar
    nbc May 24, 2010 at 7:03 pm #

    An alternative document would be

    If the child returns to the U.S. without a Form FS-240 being filed, an application may be made for a Certificate of Citizenship. Obtaining this certificate involves presentation of basically the same documentation required to obtain a Consular Report of Birth. Under law, the Consular Report of Birth and the Certificate of Citizenship are equally acceptable as proof of citizenship. File USCIS Form N-600 (Application for Certificate of Citizenship) with your nearest USCIS office.

  129. avatar
    nbc May 24, 2010 at 7:09 pm #

    Rogers v Bellei

    Mr. Justice Gray has observed that the first sentence of the Fourteenth Amendment was “declaratory of existing 830*830 rights, and affirmative of existing law,” so far as the qualifications of being born in the United States, being naturalized in the United States, and being subject to its jurisdiction are concerned. United States v. Wong Kim Ark, 169 U. S., at 688. Then follows a most significant sentence:

    “But it [the first sentence of the Fourteenth Amendment] has not touched the acquisition of citizenship by being born abroad of American parents; and has left that subject to be regulated, as it had always been, by Congress, in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.”

  130. avatar
    nbc May 24, 2010 at 7:10 pm #

    Same source

    The Court has recognized the existence of this power. It has observed, “No alien has the slightest right to naturalization unless all statutory requirements are complied with . . . .” United States v. Ginsberg, 243 U. S. 472, 475 (1917). See United States v. Ness, 245 U. S. 319 (1917); Maney v. United States, 278 U. S. 17 (1928). And the Court has specifically recognized the power of Congress not to grant a United States citizen the right to transmit citizenship by descent. As hereinabove noted, persons born abroad, even of United States citizen fathers who, however, acquired American citizenship after the effective date of the 1802 Act, were aliens. Congress 831*831 responded to that situation only by enacting the 1855 statute. Montana v. Kennedy, 366 U. S., at 311. But more than 50 years had expired during which, because of the withholding of that benefit by Congress, citizenship by such descent was not bestowed. United States v. Wong Kim Ark, 169 U. S., at 673-674. Then, too, the Court has recognized that until the 1934 Act the transmission of citizenship to one born abroad was restricted to the child of a qualifying American father, and withheld completely from the child of a United States citizen mother and an alien father. Montana v. Kennedy, supra.

    Further, it is conceded here both that Congress may withhold citizenship from persons like plaintiff Bellei[6] and may prescribe a period of residence in the United States as a condition precedent without constitutional question.[7]

  131. avatar
    Scientist May 24, 2010 at 7:32 pm #

    nbC: Your point that a statute can be repealed is a red herring. Amendments can be repealed; it’s more difficult, but it can be done (prohibition).

    I wish you would answer this simple question with a 1 word answer-yes or no. No common law vs statute, a simple yes or no. Suppose McCain had won the election and someone with standing (Obama?) had filed a timely challenge, would he have prevailed? If the answer is no, then functionally and in practical terms the courts would be saying that he (and thus St James) are eligible to be President. You can say that under some future statute he wouldn’t be and I could say that under some future amendment Obama wouldn’t be (maybe no one would). That is immaterial; we are talking as things are now and were in 2008.

    If you then wish to say that someone elected by the voters, approved by Congress and against whom court challenges were illegitimate, I would have to call you a birther.

  132. avatar
    nbc May 24, 2010 at 7:40 pm #

    Scientist: I wish you would answer this simple question with a 1 word answer-yes or no. No common law vs statute, a simple yes or no. Suppose McCain had won the election and someone with standing (Obama?) had filed a timely challenge, would he have prevailed?

    Possibly.

    If the answer is no, then functionally and in practical terms the courts would be saying that he (and thus St James) are eligible to be President. You can say that under some future statute he wouldn’t be and I could say that under some future amendment Obama wouldn’t be (maybe no one would). That is immaterial; we are talking as things are now and were in 2008.

    If you then wish to say that someone elected by the voters, approved by Congress and against whom court challenges were illegitimate, I would have to call you a birther.

    If that is what you would have to do, it would not change the logic and reason of my arguments.

    I accepted the SCOTUS ruling against Gore, even though I still believe he would have won and that SCOTUS failed to apply the Constitution.

    You do realize that the two are not necessarily the same.

    What I am pointing out, and what Greg is alluding to, the issues surrounding children born abroad to US parents is far less clearly settled than the issue of birth on US soil.

  133. avatar
    nbc May 24, 2010 at 7:41 pm #

    Actually I believe that the Court did make such a determination although in its dicta?

  134. avatar
    Scientist May 24, 2010 at 7:51 pm #

    nbc: What I am pointing out, and what Greg is alluding to, the issues surrounding children born abroad to US parents is far less clearly settled than the issue of birth on US soil

    I agree with that as did the Ankeny court. To me the critical factor is proper deference to the voters and Congress. I could only accept court intervention in a case where the candidate was CLEARLY ineligible (and even then only pre-election). Where it’s a close call, the voters should have their votes respected. So if St James won, I would say since he in not CLEARLY ineligible, I would address him as Mr President.

    Similarly in a Bush/Gore situation, if a candidate whose party controlled the local apparati had stuffed the ballot boxes or used a blatantly slanted method of counting, then the courts should step in. In the Florida recount, as far as I could tell, those in charge were honestly trying to do their best, so the courts should have mixed out.

  135. avatar
    nbc May 24, 2010 at 7:55 pm #

    I appreciate your position on these matters.

    Scientist: I agree with that as did the Ankeny court. To me the critical factor is proper deference to the voters and Congress. I could only accept court intervention in a case where the candidate was CLEARLY ineligible (and even then only pre-election). Where it’s a close call, the voters should have their votes respected. So if St James won, I would say since he in not CLEARLY ineligible, I would address him as Mr President.

    As to Ankeny, this is what they had to say about McCain

    Plaintiffs do not cite to any authority or develop any cogent legal argument for the proposition that a person must actually be born within one of the fifty States in order to qualify as a natural born citizen, and we therefore do not address Plaintiffs argument as it relates to Senator McCain. See Loomis, 764 N.E.2d at 668.

  136. avatar
    nbc May 24, 2010 at 8:00 pm #

    Scientist: So if St James won, I would say since he in not CLEARLY ineligible, I would address him as Mr President.

    I’d agree with you here. Of course this still does not address the issue in any meaningful manner.

  137. avatar
    Scientist May 24, 2010 at 8:02 pm #

    nbc: Plaintiffs do not cite to any authority or develop any cogent legal argument for the proposition that a person must actually be born within one of the fifty States in order to qualify as a natural born citizen

    While they didn’t rule (since McCain lost both nationally and in Indiana, the question was moot) that statement sure seems to me to imply that if they had had to rule, they would have found him eligible. After all if one side lacks cogent arguments, one would tend to rule for the other side.

    I wonder if McCain had won Indiana, whether they might have ruled on that, even though it wouldn’t have affected the national outcome.

  138. avatar
    nbc May 24, 2010 at 8:04 pm #

    That’s a bit premature. Just because no arguments were presented, this does not mean that no cogent arguments exists. That would do a disservice to those who hold contrary opinions based on solid reason, logic and facts.
    So let’s avoid such a common logical fallacy.

    Scientist: While they didn’t rule (since McCain lost both nationally and in Indiana, the question was moot) that statement sure seems to me to imply that if they had had to rule, they would have found him eligible. After all if one side lacks cogent arguments, one would tend to rule for the other side.

  139. avatar
    nbc May 24, 2010 at 8:10 pm #

    Bill Clinton gets involved

    Former President Bill Clinton called out Birthers during his commencement speech to the Yale class of 2010 — citing Birthers as an example of what happens when people are only exposed to viewpoints they agree with.

    “The only place where we’re bigoted now is we only want to be around people who agree with us,” Clinton said. “We go to the television stations, we go to the radio talk shows, we go to the blog sites that agree with us. And it can have very bizarre consequences.”

    The Birther movement is one of these consequences, Clinton said.

  140. avatar
    Dr. Conspiracy May 24, 2010 at 8:41 pm #

    nbc: As to Ankeny, this is what they had to say about McCain

    But recall what federal judge Alsup said in Robinson v. Bowen:

    This order finds it highly probable, for the purposes of this motion for provisional relief, that Senator McCain is a natural born citizen.

  141. avatar
    nbc May 24, 2010 at 8:51 pm #

    Remember that the preliminary relief requested was an injunction

    Plaintiff has not demonstrated the likelihood of success on the
    merits necessary to warrant the drastic remedy he seeks.

    Dr. Conspiracy:
    But recall what federal judge Alsupsaid in Robinson v. Bowen:

  142. avatar
    Dr. Conspiracy May 24, 2010 at 9:08 pm #

    nbc: Which is why the concept of at birth’ is unnecessarily confusing.

    OK, let’s toss the “at birth” part away. Let’s say that the Congress passed a law that said:
    “Children of US Citizens born abroad become US Citizens on their first birthday, and they retain that citizenship until age 18 at which time they must make an oath of allegiance, or lose their citizenship.”

    Let’s assume that some person who becomes a citizen under that Act is “naturalized.” Compare that person to an alien who becomes naturalized through an immigration and naturalization procedure.

    The equal protection clause of the 14th Amendment says that the government must treat all naturalized citizens equally. If this is true then it would be impossible for the government to pass a law requiring one to make an oath to retain said citizenship and the other not. We may argue that the government has the right to put extra requirements on citizens born overseas, but we cannot do this if we call them “naturalized.”

  143. avatar
    nbc May 24, 2010 at 9:14 pm #

    Dr. Conspiracy: The equal protection clause of the 14th Amendment says that the government must treat all naturalized citizens equally

    No, the 14th Amendment Clause states that those naturalized in the US need to be treated as 14th Amendment Citizens. Under Rogers v Bellei, people naturalized abroad do not have the 14th Amendment protection. Which means that unlike in case of 14th amendment citizens, Congress may set requirements or even revoke the statute.

    The difference is one is naturalized abroad, the other one naturalized in the United States.

    Section 1. 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. No State shall make or enforce any law which shall abridge the privileges or immunities of citizens of the United States; nor shall any State deprive any person of life, liberty, or property, without due process of law; nor deny to any person within its jurisdiction the equal protection of the laws.

    Naturalized in the United States. We may agree that this somewhat of an interesting ruling but that’s what Bellei found

  144. avatar
    Paul Pieniezny May 24, 2010 at 9:21 pm #

    Scott Brown: Meddle? You are being FAR too kind in your description.Fear of Catholicism was not unfounded – if you believe otherwise, do some reading up on history.

    The first comment by Scott Brown I ever gave a thumbs up. Why? Well I did what he suggested and read up on US history. And I found that Roger B Taney, the man who was so instrumental in causing the Civil War, was a Roman Catholic.

  145. avatar
    Dr. Conspiracy May 24, 2010 at 9:39 pm #

    nbc: The conclusion was that they were not “naturalized in the United States” which does not preclude from naturalization outside the United States.

    You’ve read more of these cases than I have. Do any of them use the language “naturalized outside the United States” or directly label such person born to US citizens overseas “naturalized.”

    I don’t recall any of the debate over the 14th Amendment (and I could have easily forgotten it) making this distinction.

  146. avatar
    Paul Pieniezny May 24, 2010 at 9:44 pm #

    Mike: And “Scott” is caught in a lie, again. Do your research next time, Mrs Brown. If you had, you would realise that Germany does not apply a ius soli rule for citizenship. When will you stop the lies? You’re just embarrassing yourself at this point.

    Actually, he may have a point. It just depends how long ago it was. He seems to suggest it was long ago – meaning he’s wrong, since German citizenship law was 100 percent ius sanguinis until 2000. From January 1st 2000, children of aliens born in Germany establish a right of German citizenship which they can then claim at the age of 23, provided at least one parent at the moment of birth had been living in Germany for at least eight years, including at least three years on a legal residency permit. At the age of 23, becoming a German would basically only require evidence that you have no other nationality, except if the nationality concerns a European Union member that does not require Germans who take up citizenship there, to renounce German nationality (an example would be Belgium).

    Obviously, the residency requirements are a bit steep but not unattainable – but why would an American give if his American citizenship to receive the German one – and of course the US is not a European Union member. I predict that Scott will still say that it does not matter, since there is a “potential” conflict of allegiances there.

  147. avatar
    Sef May 24, 2010 at 9:54 pm #

    Sorry to have raised such a hornet’s nest. I had to go live my life for awhile. The comments have been very interesting.

  148. avatar
    Dr. Conspiracy May 24, 2010 at 9:58 pm #

    nbc: Naturalized in the United States. We may agree that this somewhat of an interesting ruling but that’s what Bellei found

    Well this just goes to show what happens when somebody tries to rely on untutored general principles and doesn’t read the cases carefully. I must therefore concede, after reading the case, that you’re probably right. (My reservation coming from my not being a lawyer.)

  149. avatar
    charo May 24, 2010 at 10:14 pm #

    Paul Pieniezny:
    The first comment by Scott Brown I ever gave a thumbs up. Why? Well I did what he suggested and read up on US history. And I found that Roger B Taney, the man who was so instrumental in causing the Civil War, was a Roman Catholic.

    So what?

    Educate yourself.

    http://www.papalencyclicals.net/Greg16/g16sup.htm

  150. avatar
    NbC May 24, 2010 at 10:30 pm #

    Dr. Conspiracy: Well this just goes to show what happens when somebody tries to rely on untutored general principles and doesn’t read the cases carefully. I must therefore concede, after reading the case, that you’re probably right. (My reservation coming from my not being a lawyer.)

    I too find the ruling somewhat of a stretch, and I am presently listening to the oral reargument, first by the AG and then by the appellee’s lawyer.
    For a moment it sounded as if the AG was arguing that Congress has power to create ‘denizens’, however now he is arguing that 301(a) and (b) are examples of naturalization powers.
    While Congress may not restrict citizenship of 14th Amendment citizens, it can restrict citizenship to non 14th Amendment citizens. That is, if you are not born in or naturalized in the US, your citizenship can be with restrictions or the statute can even be repealed.
    50 minutes to go and then back to the original oral arguments. I am trying to figure out why the case was re-argued. Possibly because of the close decision.

  151. avatar
    nbC May 24, 2010 at 10:34 pm #

    Dr. Conspiracy: You’ve read more of these cases than I have. Do any of them use the language “naturalized outside the United States” or directly label such person born to US citizens overseas “naturalized.”

    The AG argued that the statutes were naturalization statutes. I have to revisit the ruling. I found out that every time I revisit a ruling there are more and more details to explore.

  152. avatar
    nbC May 24, 2010 at 10:35 pm #

    Dr. Conspiracy: I don’t recall any of the debate over the 14th Amendment (and I could have easily forgotten it) making this distinction.

    They discuss how 14th Amendment citizenship cannot be restricted by Congress and how Bellei was not a 14th Amendment citizen.

  153. avatar
    nbC May 24, 2010 at 10:43 pm #

    The appellee’s lawyer of course disagrees. Appealing to Schneider v Rusk and Afroyim v Rusk. Both Schneider and Bellei were statutory citizens and there should be equal treatment. The court disagreed in its ruling, observing that there was a distinction, as the first two were 14th Amendment citizens, while Bellei was not as Bellei was not ‘naturalized in the US’ or ‘Born in the US’.

    Note that while I rely on Bellei, I do find its arguments somewhat confusing if not lacking in due process. But as the Court explained, due process does not apply to those who are granted citizenship outside the 14th Amendment.

  154. avatar
    nbC May 24, 2010 at 10:48 pm #

    As to denizens, the Sollicitor General observed how Congress assigned citizenship to Winston Churchill as well as countless individuals whose status was in doubt. Many of them, including a daughter of Grant were given restored US citizenship after losing citizenship through marriage (before 1907 a woman would lose US citizenship when marrying a foreigner) and when the marriage was ended, she would not be able to reclaim her birthright citizenship.

    Another example was the Marquis de Lafayette who was granted US citizenship including all his descendents… That was however a Maryland state decision not a US decision.

    Aha what does naturalized in the US mean. Taking oath of allegiance? Schneider never took an oath.. Sorry, still listening to the appellee’s lawyer. He is not arguing under the 14th either. Interesting…

  155. avatar
    nbC May 24, 2010 at 10:52 pm #

    Honorary citizenship

    Lafayette did not receive honorary citizenship of the United States until 2002, but did become a natural born citizen during his lifetime. On 28 December 1784 the Maryland General Assembly passed a resolution stating that Lafayette and his male heirs “forever shall be…natural born Citizens” of the state.[7] This made him a natural born citizen of the United States under the Articles of Confederation and as defined in Section 1 of Article Two of the United States Constitution.

    and yet another kind of citizenship

    Honorary citizenship should not be confused with citizenship or permanent residency bestowed by a private bill. Private bills are, on rare occasions, used to provide relief to individuals, often in immigration cases, and are also passed by Congress and signed into law by the President. One such statute, granting Elian Gonzalez U.S. citizenship, was suggested in 1999, but was never enacted.[15]

    I am now looking for private bill and honorary citizenship and the Constitution…

  156. avatar
    Saint James May 25, 2010 at 12:51 am #

    nbc: The conclusion was that they were not “naturalized in the United States” which does not preclude from naturalization outside the United States.

    I found this U.S. Department of State Foreign Affairs Manual…with guidelines explaining that indeed a child born abroad to US citizen parents are not naturalized…Please go to page 8-10. I think that this is a very informative guidelines.

    http://www.state.gov/documents/organization/86757.pdf

    U.S. Department of State Foreign Affairs Manual Volume 7 – Consular Affairs
    7 FAM 1130 Page 1 of 101
    7 FAM 1130
    ACQUISITION OF U.S. CITIZENSHIP BY
    BIRTH ABROAD TO U.S. CITIZEN PARENT

  157. avatar
    nbC May 25, 2010 at 1:04 am #

    Interesting find. Note that this is mostly a definition under the act in question.

    Furthermore the same document accepts that

    This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.

  158. avatar
    Saint James May 25, 2010 at 1:10 am #

    nbC: Interesting find. Note that this is mostly a definition under the act in question.Furthermore the same document accepts that

    However, if you read further down the line to the next section…

    7 FAM 1131.6-3 Not Citizens by “Naturalization”
    (TL:CON-68; 04-01-1998)
    Section 201(g) NA and section 301(g) INA (formerly section 301(a)(7) INA)
    both specify that naturalization is “the conferring of nationality of a state
    upon a person after birth.” Clearly, then, Americans who acquired their
    citizenship by birth abroad to U.S. citizens are not considered naturalized
    citizens under either act.

  159. avatar
    nbC May 25, 2010 at 1:17 am #

    Yes I read that part. Hence my comment that it is mostly a definition under the act in question.

    Not to be confused with legal definitions as they pertain to the Constitution for instance. Unless you were to insist that there do exist three kinds of citizens, because we already know that natural born citizenship cannot have restrictions placed on it and we do know that under Bellei, restrictions can be placed on those born abroad.
    If such people were considered to be natural born then under US Constitution, Congress could not take away or restrict the meaning of said citizenship.

    Saint James:
    However, if you read further down the line to the next section…7 FAM 1131.6-3 Not Citizens by “Naturalization”
    (TL:CON-68; 04-01-1998)
    Section 201(g) NA and section 301(g) INA (formerly section 301(a)(7) INA)
    both specify that naturalization is “the conferring of nationality of a state
    upon a person after birth.” Clearly, then, Americans who acquired their
    citizenship by birth abroad to U.S. citizens are not considered naturalized
    citizens under either act.

  160. avatar
    Saint James May 25, 2010 at 1:31 am #

    nbC: Not to be confused with legal definitions as they pertain to the Constitution for instance. Unless you were to insist that there do exist three kinds of citizens, because we already know that natural born citizenship cannot have restrictions placed on it and we do know that under Bellei, restrictions can be placed on those born abroad.If such people were considered to be natural born then under US Constitution, Congress could not take away or restrict the meaning of said citizenship.

    I mentioned that children born abroad to us citizen parents are not naturalized only to point that they are indeed natural born citizens with conditions like retentions….

    7 FAM 1131.6-1 Status Generally
    (TL:CON-68; 04-01-1998)
    Persons born abroad who acquire U.S. citizenship at birth by statute
    generally have the same rights and are subject to the same obligations as
    citizens born in the United States who acquire citizenship pursuant to the
    14th Amendment to the Constitution. One exception is that they may be
    subject to citizenship retention requirements.

  161. avatar
    nbC May 25, 2010 at 1:52 am #

    I checked 201(g) and 301(g) and neither one appears to make this claim. Weird…

    Although 8 USC 1101 specifies

    (23) The term “naturalization” means the conferring of nationality of a state upon a person after birth, by any means whatsoever.

    nbC: Section 201(g) NA and section 301(g) INA (formerly section 301(a)(7) INA)
    both specify that naturalization is “the conferring of nationality of a state
    upon a person after birth.” Clearly, then, Americans who acquired their
    citizenship by birth abroad to U.S. citizens are not considered naturalized
    citizens under either act.

    But this appears to apply to 14th Amendment naturalized citizens. In Miller v Albright, the dissenting judges raised this same issue to argue that

    The Court did not say it intended that phrase to include statutes that confer citizenship “at birth.” And Congress does not believe that this kind of citizenship involves “naturalization.” 8 U.S.C. § 1101(a)(23) (“The term naturalization’ means the conferring of nationality of a state upon a person after birth, by any means whatsoever”) (emphasis added). The Court to my knowledge has never said, or held, or reasoned that statutes automatically conferring citizenship “at birth” upon the American child of American parents receive a more lenient standard of review.

    The majority found that

    There are “two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Within the former category, the Fourteenth Amendment of the Constitution guarantees that every person “born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” 169 U.S., at 702. Persons not born in the United States acquire citizenship by birth only as provided by Acts of Congress. Id., at 703.

    and the footnote

    Though petitioner claims to be a citizen from birth, rather than claiming an immigration preference, citizenship does not pass by descent. Rogers v. Bellei, 401 U.S. 815, 830 (1971). Thus she must still meet the statutory requirements set by Congress for citizenship. Id., at 828—830; United States v. Ginsberg, 243 U.S. 472, 474 (1917). Deference to the political branches dictates “a narrow standard of review of decisions made by the Congress or the President in the area of immigration and naturalization.” Mathews v. Diaz, 426 U.S. 67, 82 (1976). Even if, as petitioner and her amici argue, the heightened scrutiny that normally governs gender discrimination claims applied in this context, see United States v. Virginia, 518 U.S. ___, ___ (1996) (slip op., at 15), we are persuaded that the requirement imposed by §1409(a)(4) on children of unmarried male, but not female, citizens is substantially related to important governmental objectives.

    Scalia in his concurrence

    The Constitution “contemplates two sources of citizenship, and two only: birth and naturalization.” United States v. Wong Kim Ark, 169 U.S. 649, 702 (1898). Under the Fourteenth Amendment, “[e]very person born in the United States, and subject to the jurisdiction thereof, becomes at once a citizen of the United States, and needs no naturalization.” Ibid. Petitioner, having been born outside the territory of the United States, is an alien as far as the Constitution is concerned, and “can only become a citizen by being naturalized, either by treaty, as in the case of the annexation of foreign territory; or by authority of Congress.” Id., at 702—703; see also Rogers v. Bellei, 401 U.S. 815, 827 (1971). Here it is the “authority of Congress” that is appealed to–its power under Art. I, §8, cl. 4, to “establish an uniform Rule of Naturalization.” If there is no congressional enactment granting petitioner citizenship, she remains an alien.

  162. avatar
    nbC May 25, 2010 at 1:55 am #

    Saint James: I mentioned that children born abroad to us citizen parents are not naturalized only to point that they are indeed natural born citizens with conditions like retentions….

    They cannot be natural born because natural born citizens are defined by the Constitution and thus cannot be subject to retention requirements.

    As the document also explains

    This statute is no longer operative, however, and its formula is not included in modern nationality statutes. In any event, the fact that someone is a natural born citizen pursuant to a statute does not necessarily imply that he or she is such a citizen for Constitutional purposes.

  163. avatar
    dunstvangeet May 25, 2010 at 2:23 am #

    nbC:
    They cannot be natural born because natural born citizens are defined by the Constitution and thus cannot be subject to retention requirements.As the document also explains

    I think you’re wrong on that. Natural Born Citizen isn’t actually defined by the Constitution. It just says that someone born in the United States is a Natural Born Citizen. Birth in the United States is Sufficient, but not neccessary for Natural Born Citizen.

    For instance, the courts have said that birth in a U.S. Territory is not protected by the Constitution. Furthermore, if it was, there would be no reason to phrase Sections 1402 (Panama), 1403 (Panama Canal), 1404 (Alaska), 1405 (Hawaii), 1406 (Virgin Islands), and 1407 (Guam) the way that they did. Why would they need to say, “All persons born in Puerto Rico on or after January 13, 1941, and subject to the jurisdiction of the United States, are citizens of the United States at birth.” if every one born under that was also covered under “born in the United States, and Subject to the jurisdiction thereof.”

    So, the constitutional division must not include people born in the territories. However, we do have a clear precedent that people born in U.S. Territories are Natural Born Citizens (Charles Curtis). So, the definition of Natural Born Citizen must be more inclusive than the “born in the United States and Subject to the jurisdiction thereof”.

    You know this, NBC, you know this. I don’t know why you’re arguing this point.

  164. avatar
    Paul Pieniezny May 25, 2010 at 5:34 am #

    charo: So what? Educate yourself. http://www.papalencyclicals.net/Greg16/g16sup.htm

    The problem was of course that, Roman Catholic Bishops in the South interpreted that opinion of the Pope (you do know he was not infallible at the time, right?) as arguing against the slave trade, not slavery. When the Jesuits decided they could ignore the encyclical no longer, they sold 272 slaves to planters in Louisiana, but as they did their utmost to ensure that the planters were Roman Catholics, they did not notice that these planters were so poor that they could not really afford the slaves. http://www.the-tidings.com/2010/021210/benson.htm

    My point, although stated a bit ironically, was actually different:: to what extent did the worlwide Roman Catholic Church look favourable to the secession of the south? There is a claim that the Pope recognized the Confederacy; http://catholicism.org/catholicism-south.html (you may also find the linked article “If at first you don’t secede, try converting” interesting)

    OK, I will stop playing th role of Jonathan Levy here. But if anyone is finally tired of discussing what an 18th century philosopher thought about legal matters – they can try reading up on the opposite: what does a lawyer think about philosophy, and in particular: the philosophy and morals of the US Roman Catholic Church: http://undpress.nd.edu/book/P00980 (of course, written before the outcry over paedophile priests)

  165. avatar
    Jules May 25, 2010 at 5:42 am #

    Scott Brown:
    “For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH.”

    On what basis are you claiming that your German-born friend owed allegiance at birth to a nation-state other than the United States? My understanding is that Germany does not follow the US in basing its nationality law largely on the principle of jus soli and instead relies mainly on the principle of jus sanguinis for those born within or outside Germany. As your friend’s parents were apparently not German citizens, your friend was most likely born a United States citizen with no other allegiance.

    The fact that your friend’s nationality at birth was a function of German as well as US law shows a problem with your theory that those who have held dual nationality are not natural born citizens. As each country has the sovereign right to decide (in the context of its own constitution and laws) who is a citizen, your approach would make Presidential eligibility a function of foreign law. As I have noted previously, the British Parliament is free to pass a statute declaring that every US citizen shall be deemed to be a British citizen from the moment of his birth.

    I strongly doubt that the writers of the constitution intended for foreign governments to be able to exclude anyone or everyone from Presidential eligibility.

    Lupin:
    “As I pointed out to Mario Apuzzo more than once, if you truly believe this, it means that no child born of, say, Jewish, Italian, Greek parents (group plural = 1 parent) can ever be eligible, since they are literally born with automatic dual citizenship in another state.”

    There is a common misconception that every Jew is automatically an Israeli citizen or will become Israeli upon setting foot in Israel. In reality, a Jew who wishes to become Israeli under the Law of Return must apply for and receive an Oleh’s visa and must then use that visa to move to Israel.

    I know too little about Italian or Greek nationality law to say whether the child of an Italian or Greek citizen born outside Italy or Greece, respectively, will automatically be Italian or Greek. I would not be surprised if their laws state that someone will only acquire such citizenship upon consular registration.

  166. avatar
    Paul Pieniezny May 25, 2010 at 6:40 am #

    Doc,

    to strengthen the point made by par 215, one could refer to the last paragraph of 225:
    “It appears from several passages in history, particularly the history of Switzerland and the neighbouring countries, that the law of nations, established there by custom some ages back, did not permit a state to receive the subjects of another state into the number of its citizens. This vicious custom had no other foundation than the slavery to which the people were then reduced. A prince, a lord, ranked his subjects under the head of his private property; he calculated their number as he did that of his flocks; and, to the disgrace of human nature, this strange abuse is not yet everywhere eradicated.”
    (1885 translation)
    Vicious custom is the literal translation of “coûtume vicieuse” – not sure whether that is a good translation (think of vicious circle – and that notorious “parents” that probably means relatives). The “deliberately harmful” meaning sounds as if Vattel is for a moment dropping his mask of writer-philosopher-diplomat and expressing a strong personal opinion here – perhaps as a a diplomat he had been in contact with some birthers of his time? It is also refreshing to see that he thinks “citizen” and “subject” are synonyms (yes, it is also in the French), and that people who deny children of emigrants the citizenship of the place where they were born are covert supporters of slavery and servitude. You would almost think Vattel understood birthers very well.

  167. avatar
    Dr. Conspiracy May 25, 2010 at 7:49 am #

    Scott Brown: My belief that Obama is ineligible doesn’t come from Vattel or semi-applicable case law – it comes from Common Sense. I believe Doc just recently had a democracy threatening post on that subject. The problem was that Doc came to the hard and fast conclusion that HIS common sense trumped my common sense, when only a court of law can trump differing opinions and interpretations of the wording in the Constitution.

    I explained in the article that by “common sense” I meant things which were self evident, that they they were so compelling (and the denial of them so wildly improbable) that any rational person would come to the same conclusion. I am not saying that my common sense trumps your common sense, but that my inevitable conclusions trump your recollections from a third party speaking from unknown authority.

    I don’t think you have ever explained to us why you think why my article was “democracy threatening” (I assume the words were just indiscriminate mud slinging). I believe that anyone who attempts to mislead the public in a matter of public policy threatens democracy and this is why I heap scorn on various Internet web site that I have proven mislead the public. I not only try very hard to get my facts right but I have an open forum where anyone who thinks that I have said something incorrect has the chance to set the record straight. (For example, I got Stanley Ann Obama’s age wrong in a recent article, now corrected.)

    I simply cannot accept the notion that a free and open discussion such as this can do anything other than support democracy. Further I cannot accept that one-sided forums that refuse dissenting views advance democracy, quite the contrary.

  168. avatar
    Paul Pieniezny May 25, 2010 at 8:39 am #

    nbC: Honorary citizenshipand yet another kind of citizenshipI am now looking for private bill and honorary citizenship and the Constitution…

    Anna Politkovskaya also acquired US citizenship “at the beginning of the 1990s”, the Guardian claimed in 2006. http://www.guardian.co.uk/media/2006/oct/11/pressandpublishing.russia

    The problem is that if she pronounced the US Oath of Allegiance, that should have meant the automatic loss of Russian nationality at the time (not any longer now) and the loss of any claim to Ukrainian nationality she might still have had. Politkovskaya could not have become American at birth since she was the daughter of diplomats representing the Ukraine at the United Nations. Is there a way of verifying that she indeed did get US citizenship through a third route? It would still make her naturalized of course, and I suppose that could harm the case for McCain being an NBC.

  169. avatar
    Bovril May 25, 2010 at 8:46 am #

    To reinforce Dr C’s point about open versus closed fora and which is more liable to foster actual discourse

    Let us take the example of the eponymous Pest and eFail.

    One of the latest tirades and wholly unpleasant items is this one

    http://www.thepostemail.com/2010/05/24/the-post-email-will-continue-to-fight-evil-wherever-we-find-it/

    The Pest has taken upon itself to decide that those who post dissenting opinions are not only “evil Obots” (an opinion) but the simple act of posting (and being censored) is a attack on the purity of the Pest and an actual crime.

    To re-inforce the chilling effect they post marginally redacted names and IP addresses and on previous occassions partially and ineffectually redacted email addresses.

    They boast of informing the companies the IP addresses purportedly originate from of these “attacks” and revel in their sanctity.

    Now, comparing Birfer sites like the Pest and non Birfer sites like Dr C’s, which support democractic discourse and the free exchange of opposing ideologies and which have an ant-democractic, stifling and downright totalitarian bent…..?

  170. avatar
    Paul Pieniezny May 25, 2010 at 9:01 am #

    Jules: Scott Brown:“For it makes no difference what color of skin the candidate has, it only matters what his/her allegiances are (both his/hers and the countries that claim him/her) AT BIRTH.”On what basis are you claiming that your German-born friend owed allegiance at birth to a nation-state other than the United States? My understanding is that Germany does not follow the US in basing its nationality law largely on the principle of jus soli and instead relies mainly on the principle of jus sanguinis for those born within or outside Germany.
    I know too little about Italian or Greek nationality law to say whether the child of an Italian or Greek citizen born outside Italy or Greece, respectively, will automatically be Italian or Greek. I would not be surprised if their laws state that someone will only acquire such citizenship upon consular registration.

    Be careful when saying German-born. And then going on to say he’s not German at all. There is a difference between Germany-born and German-born. When a Kenyan newspaper claims that Obama “was Kenyan-born”, it means they think he was born a Kenyan, not necessarily that they think he was born in Kenya.

    I do not know for sure about Italian or Greek customs, but I can assure you that young Belgians of Turkish origin who only have a Belgian passport (with a Turkish name on it, to give the game away) and are so stupid as to visit Turkey on a summer holiday, have been conscripted into the Turkish army. On another forum, PolitiJab, Emund Muskie (OK, he was an unsuccessful candidate) who had automatic Polish nationality at birth because both his parents were Polish, was claimed to have had a similar problem preventing him from visiting Poland.

    I am sure Eisenhower could also have got into trouble if he had visited his “home” country before joining the US army (and thus losing German citizenship).

    Since 2000, German nationality laws have changed. It is a bit easier now for children of foreigners to acquire German citizenship as a result of being born in Germany. On the other hand, children of at least one German citizen, if born abroad, will be German only if registered (not naturalized!) at a consulate within one year after birth (unless they would otherwise have no nationality at all) – meaning the Eisenhower anomaly will die a slow death.

  171. avatar
    Dr. Conspiracy May 25, 2010 at 9:51 am #

    Bovril: To re-inforce the chilling effect they [The Post & Email blog] post marginally redacted names and IP addresses and on previous occassions partially and ineffectually redacted email addresses.

    They boast of informing the companies the IP addresses purportedly originate from of these “attacks” and revel in their sanctity.

    Orly has done similar things. I have nothing but disdain for such behavior.

  172. avatar
    WTF? May 25, 2010 at 10:18 am #

    nbc is properly interpreting Bellei. To interpret it in any other way would be to consider Congress to have unlimited power.

    All persons born abroad who acquire U.S. Citizenship at birth by statute, are naturalized citizens. Congress just waived many of the procedures for those born to U.S. Citizens.

    Any other interpretation cannot be supported by any clause in the Constitutution.

  173. avatar
    Bovril May 25, 2010 at 10:24 am #

    I might add that considering both the Pest as well as Orly’s technology skills are on a par with their journalistic and legal skills I know that the information plastered is not infrequently cack.

    Out of the goodness of my heart I did post on both sites that items such as proxys, chained proxying, anonymizers like TOR etc render their details at best suspect.

    Qu’elle suprise, I was edited out as doubleplusungood thoughtcrime perp…..>8-)

  174. avatar
    Mike May 25, 2010 at 10:36 am #

    Paul Pieniezny: Since 2000, German nationality laws have changed. It is a bit easier now for children of foreigners to acquire German citizenship as a result of being born in Germany.

    However, even this is at best a conditional form of ius soli only.

  175. avatar
    Lupin May 25, 2010 at 10:41 am #

    Jules: Lupin:
    “As I pointed out to Mario Apuzzo more than once, if you truly believe this, it means that no child born of, say, Jewish, Italian, Greek parents (group plural = 1 parent) can ever be eligible, since they are literally born with automatic dual citizenship in another state.”

    There is a common misconception that every Jew is automatically an Israeli citizen or will become Israeli upon setting foot in Israel. In reality, a Jew who wishes to become Israeli under the Law of Return must apply for and receive an Oleh’s visa and must then use that visa to move to Israel.

    I know too little about Italian or Greek nationality law to say whether the child of an Italian or Greek citizen born outside Italy or Greece, respectively, will automatically be Italian or Greek. I would not be surprised if their laws state that someone will only acquire such citizenship upon consular registration.

    You are correct, of course, but you missed my point: I was framing the matter using the same parameters that Scott is using vis vis Obama’s alleged divided allegiance because of his Kenyan father.

    In other words, I was applying Scott’s “rules” to other types of situation, stating “if Scott believes X, then it also means Y.”

    If Obama’s dad was Abraham Obamenstein, would Scott’s belief suddenly change?

    Your correct response only emphasizes that Scott’s belief is, of course, ludicrous, not to mention impractical in the extreme.

  176. avatar
    Black Lion May 25, 2010 at 10:46 am #

    There was an interesting article written back in 2008 regarding the issue of how natural born citizenship was acquired….

    “There are two basic paradigms of acquiring citizenship: by birth, and by naturalization. The Immigration and Nationality Act currently in effect defines “naturalization” to mean “the conferring of nationality of a state upon a person after birth, by any means whatsoever.” There should therefore be no doubt that a “natural born Citizen” as described in Article II of the Constitution is one who acquired U.S. citizenship at birth, and not through naturalization. The law of naturalization is therefore not discussed in any detail here.”

    http://www.ssbb.com/index.php/publications/entry/90

    Black’s Law Dictionary, Sixth Edition:

    Native. A natural-born subject or citizen; a citizen by birth; one who owes his domicile or citizenship to the fact of his birth within the country referred to. The term may also include one born abroad, if his parents were then citizens of the country, and not permanently residing in foreign parts. U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890.

    And regarding Vattel from his infamous Law of Nations book, he says the following….

    “Le Droit des Gens ou Principes de la Loi Naturelle 1758 (English 1759) from Vol. 1 (of 2) Chpt. XIX, 212, Des citoyens et naturels: “Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens.” Which in english says “”The Natural, or Natives, are those who are born in the country, or of citizen parents.”

    And in the Lynch v Clarke ruling, Vattel is referenced in the following way….

    “Vattel says, the natives, or indigenes, are those born in the country of parents who are citizens. That in order to be of the country, it is necessary that a person be born of a father who is a citizen, for if he is born there of a stranger, it will be only the place of his birth, and not his country. (VatteFs Law of Nations, B. 1, ch. 19, § 212.) He further says, in reference to the inquiry whether children born of citizens in a foreign country, are citizens, that the laws have decided the question in several countries, and it is necessary to follow their regulations. That in England being born in the country, naturalizes the children of a foreigner. That by the law of nature alone, children follow the condition of their fathers, and enter into all their rights. But he puts forth that opinion on the supposition, that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant, and his children are so too. (Ibid. § 214, 215. And see § 219.) “

  177. avatar
    Sef May 25, 2010 at 12:00 pm #

    WTF?: nbc is properly interpreting Bellei. To interpret it in any other way would be to consider Congress to have unlimited power.All persons born abroad who acquire U.S. Citizenship at birth by statute, are naturalized citizens. Congress just waived many of the procedures for those born to U.S. Citizens.Any other interpretation cannot be supported by any clause in the Constitutution.

    So the question now becomes “What is abroad”. Are foreign U.S. military bases “abroad”? Is Puerto Rico “abroad”? Was Hawaii prior to 1959 “abroad”? What about U.S. flagged ships in international waters? Or airplanes? What about our diplomats serving foreign stations?

  178. avatar
    Paul Pieniezny May 25, 2010 at 12:23 pm #

    Mike: However, even this is at best a conditional form of ius soli only.

    Agreed. But do not forget that “conditional form” (of ius sanguinis then) would also add all US Presidents of Huguenot descent born before 1945 (thus excluding Obama) to the list of usurpers.

  179. avatar
    NbC May 25, 2010 at 12:25 pm #

    Sef: So the question now becomes “What is abroad”. Are foreign U.S. military bases “abroad”? Is Puerto Rico “abroad”? Was Hawaii prior to 1959 “abroad”? What about U.S. flagged ships in international waters? Or airplanes? What about our diplomats serving foreign stations?

    Most of these have been addressed by statute or regulation or lawsuit…

  180. avatar
    NbC May 25, 2010 at 12:31 pm #

    Black Lion: There should therefore be no doubt that a “natural born Citizen” as described in Article II of the Constitution is one who acquired U.S. citizenship at birth, and not through naturalization.

    That does not make sense as it is at odds with Wong Kim Ark, Rogers v Bellei and other rulings on this topic.

    Under Common Law practices this does not make sense because natural born status was only acquired through birth on US soil. Justice Grey explained, and the dissenting Judge while disagreeing accepted that under WKA, children born abroad to US citizens could not run for President.

    Bellei argued that Constitutional citizenship cannot be abridged and yet allowed the citizenship of children born abroad to US citizens to be restricted. In fact, it observed how such citizenship could be totally refused as it was for almost half a century.

    That the INA defines naturalization for purpose of the law in a specific manner should not be confused with the fact that courts have held that there are two kinds of citizenship: natus and datus. Born on soil and granted by statute (naturalized).

  181. avatar
    NbC May 25, 2010 at 12:35 pm #

    That appears to be at odds with what Wong Kim Ark actually found,

    It is correct for England where statute assigned NBC status to children born abroad to British parents. However, unlike England, the US defines NBC in its constitution and leaves it undefined. As such the meaning had to be found in Common Law which clearly does not include children born abroad as natural born.

    For that specific statutes were needed.

    Black Lion: There was an interesting article written back in 2008 regarding the issue of how natural born citizenship was acquired….“There are two basic paradigms of acquiring citizenship:by birth, and by naturalization.The Immigration and Nationality Act currently in effect defines “naturalization” to mean “the conferring of nationality of a state upon a person after birth, by any means whatsoever.”There should therefore be no doubt that a “natural born Citizen” as described in Article II of the Constitution is one who acquired U.S. citizenship at birth, and not through naturalization.The law of naturalization is therefore not discussed in any detail here.”
    http://www.ssbb.com/index.php/publications/entry/90Black’s Law Dictionary, Sixth Edition:Native. A natural-born subject or citizen; a citizen by birth; one who owes his domicile or citizenship to the fact of his birth within the country referred to. The term may also include one born abroad, if his parents were then citizens of the country, and not permanently residing in foreign parts. U.S. v. Wong Kim Ark, 169 U.S. 649, 18 S.Ct. 456, 42 L.Ed. 890.
    And regarding Vattel from his infamous Law of Nations book, he says the following….“Le Droit des Gens ou Principes de la Loi Naturelle 1758 (English 1759) from Vol. 1 (of 2) Chpt. XIX, 212, Des citoyens et naturels: “Les naturels, ou indigenes, sont ceux qui sont nes dans le pays, de parens citoyens.” Which in english says “”The Natural, or Natives, are those who are born in the country, or of citizen parents.”And in the Lynch v Clarke ruling, Vattel is referenced in the following way….“Vattel says, the natives, or indigenes, are those born in the country of parents who are citizens. That in order to be of the country, it is necessary that a person be born of a father who is a citizen, for if he is born there of a stranger, it will be only the place of his birth, and not his country. (VatteFs Law of Nations, B. 1, ch. 19, § 212.) He further says, in reference to the inquiry whether children born of citizens in a foreign country, are citizens, that the laws have decided the question in several countries, and it is necessary to follow their regulations. That in England being born in the country, naturalizes the children of a foreigner. That by the law of nature alone, children follow the condition of their fathers, and enter into all their rights. But he puts forth that opinion on the supposition, that the father has not entirely quitted his country in order to settle elsewhere. If he has fixed his abode in a foreign country, he is become a member of another society, at least as a perpetual inhabitant, and his children are so too. (Ibid. § 214, 215. And see § 219.) ”

  182. avatar
    SFJeff May 25, 2010 at 12:37 pm #

    “Any other interpretation cannot be supported by any clause in the Constitutution.”

    And yet a majority of Congress disagreed with you when they came to the conclusion that McCain was a natural born citizen.

    Hey, you might be right- I find the argument vaguely interesting- but regardless of what either you or nBC or Bovril say, I would say that there is clearly some dispute about the natural born status of American’s born abroad.

    And in that case- who is entitled to settle that dispute- Congress or the Supreme Court? My gut feeling is that if Congress were to approve say McCain after he was elected that the question for him would end there. However, if it reached the Supreme Court before Congress approved him as President I could possibly see them ruling on it.

    None of this of course applies to President Obama.

  183. avatar
    NbC May 25, 2010 at 12:44 pm #

    From a perspective of consistency, I have to agree with you, any alternatives would become self-contradictory.

    The Constitution defines two kinds of citizens

    1. Natural born – Citizen through common law
    2. Naturalized – Citizen through statute

    Common Law did NOT include the granting of citizenship to children born abroad to US parents. Which is why explicit statutes were needed in 1790. While the earliest statute called such children ‘natural born’, mostly because of a copying error from a British statute, later once had the term removed, for obvious reasons.

    In Wong Kim Ark, it was similarly found that children born abroad to US parents would not be able to run for President.

    Both in England and in the United States, indeed, statutes have been passed at various times enacting that certain issue born abroad of English subjects or of American citizens, respectively, should inherit, to some extent at least, the rights of their parents. But those statutes applied only to cases coming within their purport, and they have never been considered in either country as affecting the citizenship of persons born within its dominion.

    and

    This sentence of the Fourteenth Amendment is declaratory of existing rights and affirmative of existing law as to each of the qualifications therein expressed — “born in the United States,” “naturalized in the United States,” and “subject to the jurisdiction thereof” — in short, as to everything relating to the acquisition of citizenship by facts occurring within the limits of the United States. But it has not touched the acquisition of citizenship by being born abroad of American parents, and has left that subject to be regulated, as it had always been, by Congress in the exercise of the power conferred by the Constitution to establish an uniform rule of naturalization.

    Dissenting Judge

    Considering the circumstances surrounding the framing of the Constitution, I submit that it is unreasonable to conclude that “natural-born citizen” applied to everybody born within the geographical tract known as the United States, irrespective of circumstances, and that the children of foreigners, happening to be born to them while passing through the country, whether of royal parentage or not, or whether of the Mongolian, Malay or other race, were eligible to the Presidency, while children of our citizens, born abroad, were not.

    WTF?: All persons born abroad who acquire U.S. Citizenship at birth by statute, are naturalized citizens. Congress just waived many of the procedures for those born to U.S. Citizens.

    Any other interpretation cannot be supported by any clause in the Constitutution.

  184. avatar
    Black Lion May 25, 2010 at 12:46 pm #

    NbC: That appears to be at odds with what Wong Kim Ark actually found,It is correct for England where statute assigned NBC status to children born abroad to British parents. However, unlike England, the US defines NBC in its constitution and leaves it undefined. As such the meaning had to be found in Common Law which clearly does not include children born abroad as natural born.For that specific statutes were needed.

    NBC, I can see you point. I think what we have here is that there is no clear definition regarding natuaral born regarding children being born to US ciitzens overseas. The one article I found seemed to think that you could still be a NBC if you were born to US citizens abroad. From the argument I have seen there doesn’t seem to be a consensus opinion either way. It may be an issue that the SCOTUS may have to rule upon one day so that there is clarification in regards to this issue.

  185. avatar
    Sef May 25, 2010 at 12:47 pm #

    NbC: However, unlike England, the US defines NBC in its constitution and leaves it undefined.

    Huh???

  186. avatar
    Sef May 25, 2010 at 12:52 pm #

    My personal thought on this is that at some future point Bellei is going to be looked on similar to “Dred Scott” as an unfortunate SCOTUS decision. In the meantime we’ll have to wait for a “case or controversy”.

  187. avatar
    Sef May 25, 2010 at 12:56 pm #

    Sef: My personal thought on this is that at some future point Bellei is going to be looked on similar to “Dred Scott” as an unfortunate SCOTUS decision. In the meantime we’ll have to wait for a “case or controversy”.

    Fortunately, this is all irrelevant for our current POTUS as he was born on U.S. soil. (with proof, even)

  188. avatar
    NbC May 25, 2010 at 12:57 pm #

    Sef: NbC: However, unlike England, the US defines NBC in its constitution and leaves it undefined.

    Let me try to explain: In England, the natural born status has no special relevance. Even naturalized citizens were considered ‘natural born’. Natural born in the US however is a concept mentioned in the Constitution but leaves it undefined.

    Better this way?

  189. avatar
    NbC May 25, 2010 at 1:02 pm #

    Sef: Sef: My personal thought on this is that at some future point Bellei is going to be looked on similar to “Dred Scott” as an unfortunate SCOTUS decision. In the meantime we’ll have to wait for a “case or controversy”.

    Rogers v Bellei is well reasoned although somewhat unexpected as I had failed to recognize the distinctions between 14th Amendment citizen and non-14th Amendment citizen. It is based on an analysis of the text of the 14th Amendment which restricts 14th Amendment citizens to those born or naturalized on US soil. It recognizes the Constitutional right of Congress to define a uniform rule of naturalization both in and outside the United States. Jus Sanguinis has always been a somewhat ugly duckling in the United States.

    Unlike Dred Scott it is quoted by subsequent cases approvingly. So I am not sure that it will be going the same way as Dred Scott, unless you meant to argue that like Dred Scott, a Constitutional amendment was needed to change the situation once and for all?

  190. avatar
    NbC May 25, 2010 at 1:06 pm #

    Sef: So the question now becomes “What is abroad”. Are foreign U.S. military bases “abroad”? Is Puerto Rico “abroad”? Was Hawaii prior to 1959 “abroad”? What about U.S. flagged ships in international waters? Or airplanes? What about our diplomats serving foreign stations?

    As the Sollicitor General explains: these are boundary cases that in some instances requires statutory regulation. However, this does not mean that there is a clear distinction between born on US soil and born on foreign soil.

    The US history with territories and outlying areas has been one ruled more by politics than by logic and reason. In most cases legal precedent has established however clear rules.

  191. avatar
    Slartibartfast May 25, 2010 at 1:59 pm #

    If the debate here has proven anything (and I’m not sure it has), it’s shown that there is ‘controversy’ here. To me, this indicates that if this issue becomes pertinent (i.e. someone in Senator McCain’s position were a candidate for president) a case could be brought before the courts with standing. If so, it would seem to be destined to come before the SCOTUS, at which point all of the prior case law is subject to being reversed or revised by a ruling of the court. Since it seems that this cannot be settled in any venue where precedent is binding, this whole discussion is somewhat moot. I find myself agreeing with Scientist here (we scientists need to stick together…) – I think it extremely unlikely that the SCOTUS would rule against someone in Senator McCain’s position being eligible for the presidency. If this is indeed the case, I would say that Saint James is a de facto natural born citizen.

  192. avatar
    Sef May 25, 2010 at 2:12 pm #

    Slartibartfast: If the debate here has proven anything (and I’m not sure it has), it’s shown that there is controversy’ here.To me, this indicates that if this issue becomes pertinent (i.e. someone in Senator McCain’s position were a candidate for president) a case could be brought before the courts with standing.If so, it would seem to be destined to come before the SCOTUS, at which point all of the prior case law is subject to being reversed or revised by a ruling of the court.Since it seems that this cannot be settled in any venue where precedent is binding, this whole discussion is somewhat moot.I find myself agreeing with Scientist here (we scientists need to stick together…) – I think it extremely unlikely that the SCOTUS would rule against someone in Senator McCain’s position being eligible for the presidency.If this is indeed the case, I would say that Saint James is a de facto natural born citizen.

    Yes, that was what I was trying to say. But as far as Obama is concerned it is all immaterial.

  193. avatar
    Mike May 25, 2010 at 5:53 pm #

    Paul Pieniezny:
    Agreed. But do not forget that “conditional form” (of ius sanguinis then) would also add all US Presidents of Huguenot descent born before 1945 (thus excluding Obama) to the list of usurpers.

    For sure; however, I raised the issue simply because a) Mrs Brown had previously lied about it and b) to note that even in modern times, Germany has a vastly different conception of citizenship to what might be called the classical English model.

    It’s an interesting historical blip in an otherwise locally uncontroversial scheme of ius sanguinis that’s been going on since, well, time immemorial, and derives from widespread outrage at the treatment of the children of Gastarbeiter – many children were born to Turkish parents in Germany, lived there their entire lives, spoke German like the natives they were and were wholely immersed in German culture; in short, they were Germans in all but legal status, and yet they could technically (and I believe in some cases were) deported at any time.

    Even with the more recent developments, Germany still does not recognise dual citizenship, requiring all citizens who might have it from birth to renounce it between the age of 18 and 23 or face losing their German citizenship.

  194. avatar
    Scientist May 25, 2010 at 7:35 pm #

    I’m not sure where this Google citation is from, so I have no reason to consider it authoritative. Even if I did, it says that where parentage and birthplace conflict, the person makes a choice when they reach majority, which is what Obama (and Chester Arthur and Spiro Agnew and Hubert Humpherey) did. If we want to go global, Nicolas Sarkozy was born in France to a father who was a Hungarian citizen; he made his choice as well.

  195. avatar
    Scientist May 25, 2010 at 7:40 pm #

    Slartibartfast: I find myself agreeing with Scientist here (we scientists need to stick together…)

    Indeed!!! Had McCain won, the experiment would have been performed. I would rate the odds that any court would have disqualified him well below 10%. One could speculate that he picked Palin as an insurance policy against such an eventuality.

  196. avatar
    Sef May 25, 2010 at 10:59 pm #

    Scientist: I’m not sure where this Google citation is from, so I have no reason to consider it authoritative. Even if I did, it says that where parentage and birthplace conflict, the person makes a choice when they reach majority, which is what Obama (and Chester Arthur and Spiro Agnew and Hubert Humpherey) did.If we want to go global, Nicolas Sarkozy was born in France to a father who was a Hungarian citizen; he made his choice as well.

    Just for your info the quote is from “An Exposition of the Constitution of the United States” by A. O. Wright, 31st Ed., 1888 (Just edit the provided URL to go to Pg 1)

  197. avatar
    G May 26, 2010 at 1:12 am #

    gggg

    Sef: Fortunately, this is all irrelevant for our current POTUS as he was born on U.S. soil. (with proof, even)

    And that I think sums it up well, as everything else here is merely an interesting exercise in speculative what-if scenarios, but otherwise inapplicable to Obama’s situation.

  198. avatar
    misha May 26, 2010 at 2:51 am #

    Scientist: One could speculate that he picked Palin as an insurance policy against such an eventuality.

    Hey, didn’t you conclusively prove Palin was born not 50 miles from their home, in Canada? Really, medical services in rural Idaho, or superior facilities in Canada. Obvious answer, really.

  199. avatar
    nbc May 26, 2010 at 1:35 pm #

    Update on my research as to the citizenship of children born abroad to US citizens.

    Rogers v Bellei has caused me to review quite a few presumptions

    1. Whence follows the power of Congress to extend citizenship to children born abroad to US citizens?
    a. It is clear from Bellei that such citizenship is not covered by the 14th Amendment
    b. Does it come from the Constitutional power to provide for a Uniform Rule of Naturalization?
    c. Does it come from Congressional powers in general to grant, as the sovereign of this Nation, citizenship?

    The reason why at birth citizenship is claimed to not be naturalization is that there have been hints that Congress can only make uniform rules, not determine restrictions to citizenship. But there are some inherent discrepancies in this argument. For instance, the first act which extended (natural born) citizenship status was passed as an act to provide for Uniform Rule of Naturalization.
    Under the 14th Amendment it is clear that Congress is powerless to define restrictions on naturalization when such naturalization takes place on US soil. However, the 14th Amendment does not extend such protections to the grant of citizenship outside the United States. So under what Constitutional power can Congress extend citizenship to people outside the United States? There are examples where Congress used a private bill to extend citizenship on a case by case basis, in addition there is honorary citizenship which has historically been extended to a few foreigners. So there appears to be sufficient examples that Congress has “a power” to extend citizenship outside the United States to certain people.
    The question then becomes: Does Congress, under these powers, have the right to extend natural born citizenship status?

    I have not found examples under the honorary citizenship status, that Congress extended natural born citizenship status, either way. As Wikipedia points out

    For the others, what rights honorary citizenship bestows, if any, is unclear; it does not grant eligibility for United States passports

    Source: FAM

    Private bills typically show: Naturalization of… More research to be done here.

    I will be collecting my research on my new blog and report back here when I have a more coherent overview of my findings.

  200. avatar
    Sef May 26, 2010 at 1:38 pm #

    nbc: Update on my research as to the citizenship of children born abroad to US citizens.Rogers v Bellei has caused me to review quite a few presumptions1. Whence follows the power of Congress to extend citizenship to children born abroad to US citizens?
    a. It is clear from Bellei that such citizenship is not covered by the 14th Amendment
    b. Does it come from the Constitutional power to provide for a Uniform Rule of Naturalization?
    c. Does it come from Congressional powers in general to grant, as the sovereign of this Nation, citizenship?The reason why at birth citizenship is claimed to not be naturalization is that there have been hints that Congress can only make uniform rules, not determine restrictions to citizenship. But there are some inherent discrepancies in this argument. For instance, the first act which extended (natural born) citizenship status was passed as an act to provide for Uniform Rule of Naturalization.
    Under the 14th Amendment it is clear that Congress is powerless to define restrictions on naturalization when such naturalization takes place on US soil. However, the 14th Amendment does not extend such protections to the grant of citizenship outside the United States. So under what Constitutional power can Congress extend citizenship to people outside the United States? There are examples where Congress used a private bill to extend citizenship on a case by case basis, in addition there is honorary citizenship which has historically been extended to a few foreigners. So there appears to be sufficient examples that Congress has “a power” to extend citizenship outside the United States to certain people.
    The question then becomes: Does Congress, under these powers, have the right to extend natural born citizenship status?I have not found examples under the honorary citizenship status, that Congress extended natural born citizenship status, either way. As Wikipedia points out
    Source: FAMPrivate bills typically show: Naturalization of… More research to be done here.I will be collecting my research on my new blog and report back here when I have a more coherent overview of my findings.

    Thanks for your diligence in this effort to educate us all.

  201. avatar
    nbc May 26, 2010 at 2:33 pm #

    Sef: Thanks for your diligence in this effort to educate us all.

    You’re welcome. These are historically and legally speaking quite interesting questions. And although not directly relevant to Obama’s situation, they do affect the observations that there exist two kinds of citizens: natural-born or natural-ized.

    Once a citizen, (whether natus or datus, as Sir Edward Coke expresses it,) always a citizen, unless changed by the volition and act of the individual.

    and

    Another important classification is that between natural or native born and citizens A naturalized citizen is one who originally an alien becomes a citizen by satisfying certain requirements for naturalization which are laid down by the state whose citizen he becomes

    Source: Cyclopedia of American government, Volume 1, 1914 edited by Andrew Cunningham McLaughlin, Albert Bushnell Hart

    but

    All civilized states make a distinction between natural or native born and naturalized citizens The native born citizen is one who has this status imposed upon him by reason of the nationality of his parents or parent or the locality in which he is born the naturalized citizen is one who originally in allegiance to one state is granted citizenship in another state

    The Encyclopedia Americana: a library of universal knowledge, Volume 6

    Need to find more direct sources than encyclopedia…

    664 665 This section contemplates two sources of citizenship and two sources only birth and naturalization The persons declared to be citizens are All persons born or naturalized in the United States and subject to the jurisdiction thereof

    Elk v Wilkins US Supreme court

    But that’s clearly under the 14th Amendment…

    I have to go back further in time to see what was argued before the 14th Amendment. Lynch v Clarke…

    Mr. Chitty, where cited, says that by the common law, all persons born out of the king’s dominions and allegiance were deemed aliens ; and whatever were the situation of his parents, the being born within the allegiance of the king, constituted a natural born subject.

    He states no exception to the latter proposition; although there are some exceptions to the former, in favor of children of British subjects who are born in foreign countries. Whether the foreign parents were in England, in itinere, or for occasional business, their children born during their stay, were natural born subjects.

    but

    Thus in almost every instance, we have an unerring guide or test, capable of ready investigation and authentication. The exceptions are the children of ambassadors, (who are deemed to be born within the allegiance of the sovereign represented,) and the children of our own citizens born abroad.

    More later

  202. avatar
    Sef May 26, 2010 at 2:45 pm #

    nbc:
    You’re welcome. These are historically and legally speaking quite interesting questions. And although not directly relevant to Obama’s situation, they do affect the observations that there exist two kinds of citizens: natural-born or natural-ized.
    and
    Source: Cyclopedia of American government, Volume 1, 1914 edited by Andrew Cunningham McLaughlin, Albert Bushnell Hartbut
    The Encyclopedia Americana: a library of universal knowledge, Volume 6Need to find more direct sources than encyclopedia…
    Elk v Wilkins US Supreme courtBut that’s clearly under the 14th Amendment…I have to go back further in time to see what was argued before the 14th Amendment. Lynch v Clarke…
    but
    More later

    I read something a while back (I may have misread it, or it may have been out of context) that the U.S. does not recognize U.S. citizenship of its own diplomats’ children who are born at their stations. This seems VERY strange to me as the foreign country wouldn’t grant citizenship either, therefore the child would be stateless. Can you shed any light on this or just tell me I read it wrong?

  203. avatar
    nbc May 26, 2010 at 8:00 pm #

    Elk v Wilkins 112 US 94

    This section contemplates two sources of citizenship, and two sources only: birth and naturalization. The persons declared to be citizens are “all persons born or naturalized in the United States, and subject to the jurisdiction thereof.” 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.

    So who are subject to the jurisdiction of the United States at the time of birth? But not being born in the US or naturalized in the US, how do we categorize children born abroad to US citizens?

    upon the children of American fathers born without the jurisdiction of the United States and has denied to them what pertains to other American citizens the right of transmitting citizenship to their children unless they shall have made themselves residents of the United States or in the language of the fourteenth amendment of the Constitution have made themselves subject to the jurisdiction thereof

    Source: Papers relating to the foreign relations of the United States, Part 1, Volume 2 1873

    Residency makes one subject to the jurisdiction thereof.

  204. avatar
    Paul Pieniezny May 26, 2010 at 9:31 pm #

    Mike: For sure; however, I raised the issue simply because a) Mrs Brown had previously lied about it and b) to note that even in modern times, Germany has a vastly different conception of citizenship to what might be called the classical English model. It’s an interesting historical blip in an otherwise locally uncontroversial scheme of ius sanguinis that’s been going on since, well, time immemorial, and derives from widespread outrage at the treatment of the children of Gastarbeiter – many children were born to Turkish parents in Germany, lived there their entire lives, spoke German like the natives they were and were wholely immersed in German culture; in short, they were Germans in all but legal status, and yet they could technically (and I believe in some cases were) deported at any time. Even with the more recent developments, Germany still does not recognise dual citizenship, requiring all citizens who might have it from birth to renounce it between the age of 18 and 23 or face losing their German citizenship.

    The law change only became possible with a change in German public opinion – even Gernans who had never liked foreigners, were outraged by the preferential treatment of the “Russians” who came to Germany after the break-up of the Soviet Union, and had an automatic right to a German passport when they could prove German descent. Many did not even come from Russia or Ukraine, but from Kazakhstan, Tajikistan or Kirghizia and did not speak German. Compare that to the case of a Germany-born son of … Spanish immigrants who at the age of 23, and a few months before Spain joined the European Union was deported to Spain for not having found a job after leaving school…

    You are not 100% correct on dual nationality. Some members of the European Union do not have any rules against dual nationality, so, under European law, Germany very probably cannot legally ask citizens of such countries to renounce that nationality. But the main problem will be countries who refuse renunciation – the slavery Vattel referred to. Turkey is not even the worst offender but until recently only accepted renunciation by males if they had performed Turkish military service first. Under such circumstances, one may expect that it will be difficult in 2023 to decide what constitutes a reasonable attempt to get rid of that other nationality. US nationality, as involved in the imaginay case of Ms Brown, can be renounced “easily” – meaning there is a clear official way of doing it. The German law will probably be changed before 2023.

  205. avatar
    NbC May 27, 2010 at 1:35 am #

    I may have found the source of Congressional power to extend citizenship to children born abroad to US citizens

    As a government, the United States is invested with all the attributes of sovereignty, and has the character and powers of nationality, especially those concerning relations and intercourse with foreign powers.

  206. avatar
    Mike May 27, 2010 at 3:02 am #

    Paul Pieniezny:
    The law change only became possible with a change in German public opinion – even Gernans who had never liked foreigners, were outraged by the preferential treatment of the “Russians” who came to Germany after the break-up of the Soviet Union, and had an automatic right to a German passport when they could prove German descent. Many did not even come from Russia or Ukraine, but from Kazakhstan, Tajikistan or Kirghizia and did not speak German. Compare that to the case of a Germany-born son of … Spanish immigrants who at the age of 23, and a few months before Spain joined the European Union was deported to Spain for not having found a job after leaving school…

    Absolutely, although my memory of it has the situation of the Turks playing a part. At least that was the feeling amongst younger Germans at the time whom I knew.

    You are not 100% correct on dual nationality. Some members of the European Union do not have any rules against dual nationality, so, under European law, Germany very probably cannot legally ask citizens of such countries to renounce that nationality. But the main problem will be countries who refuse renunciation – the slavery Vattel referred to.

    Hmmm. Don’t think I agree with that one; AFAIK, European law leaves national citizenship in the hands of the countries. While Maastricht did create a European Union citizenship, this is similar to that pertaining to the US under the Articles of Confederation – it is a secondary citizenship deriving from national citienships. I’m pretty sure this falls under the exclusive competencies of the member states, and consequently a member state can require singular citizenship. I’d have to check, not that I’m eager to start reading European treaties; they tend to be rather dry…

  207. avatar
    Saint James May 27, 2010 at 4:21 am #

    nbc: So who are subject to the jurisdiction of the United States at the time of birth? But not being born in the US or naturalized in the US, how do we categorize children born abroad to US citizens?

    upon the children of American fathers born without the jurisdiction of the United States and has denied to them what pertains to other American citizens the right of transmitting citizenship to their children unless they shall have made themselves residents of the United States or in the language of the fourteenth amendment of the Constitution have made themselves subject to the jurisdiction thereof Source: Papers relating to the foreign relations of the United States, Part 1, Volume 2 1873Residency makes one subject to the jurisdiction thereof.

    Thus the TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I > § 1401 interprets and implements how a person like me became a US citizen at birth. Items C,D,E,G & H have specific residency requirements.

    http://www.law.cornell.edu/uscode/8/1401.html

    TITLE 8 > CHAPTER 12 > SUBCHAPTER III > Part I > § 1401

    § 1401. Nationals and citizens of United States at birth

    The following shall be nationals and citizens of the United States at birth:

    (a) a person born in the United States, and subject to the jurisdiction thereof;

    (b) a person born in the United States to a member of an Indian, Eskimo, Aleutian, or other aboriginal tribe: Provided, That the granting of citizenship under this subsection shall not in any manner impair or otherwise affect the right of such person to tribal or other property;

    (c) a person born outside of the United States and its outlying possessions of parents both of whom are citizens of the United States and one of whom has had a residence in the United States or one of its outlying possessions, prior to the birth of such person;

    (d) a person born outside of the United States and its outlying possessions of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year prior to the birth of such person, and the other of whom is a national, but not a citizen of the United States;

    (e) a person born in an outlying possession of the United States of parents one of whom is a citizen of the United States who has been physically present in the United States or one of its outlying possessions for a continuous period of one year at any time prior to the birth of such person;

    (f) a person of unknown parentage found in the United States while under the age of five years, until shown, prior to his attaining the age of twenty-one years, not to have been born in the United States;

    (g) a person born outside the geographical limits of the United States and its outlying possessions of parents one of whom is an alien, and the other a citizen of the United States who, prior to the birth of such person, was physically present in the United States or its outlying possessions for a period or periods totaling not less than five years, at least two of which were after attaining the age of fourteen years: Provided, That any periods of honorable service in the Armed Forces of the United States, or periods of employment with the United States Government or with an international organization as that term is defined in section 288 of title 22 by such citizen parent, or any periods during which such citizen parent is physically present abroad as the dependent unmarried son or daughter and a member of the household of a person

    (A) honorably serving with the Armed Forces of the United States, or

    (B) employed by the United States Government or an international organization as defined in section 288 of title 22, may be included in order to satisfy the physical-presence requirement of this paragraph. This proviso shall be applicable to persons born on or after December 24, 1952, to the same extent as if it had become effective in its present form on that date; and

    (h) a person born before noon (Eastern Standard Time) May 24, 1934, outside the limits and jurisdiction of the United States of an alien father and a mother who is a citizen of the United States who, prior to the birth of such person, had resided in the United States.

  208. avatar
    Saint James May 27, 2010 at 4:32 am #

    NbC: I may have found the source of Congressional power to extend citizenship to children born abroad to US citizens

    But a question remains unanswered. Is a Citizen “at birth” the same as a Natural Born Citizen?

  209. avatar
    Scientist May 27, 2010 at 6:28 am #

    Saint James: But a question remains unanswered. Is a Citizen “at birth” the same as a Natural Born Citizen?

    Saint James, with all due respect, there is no answer to your question. If you asled, “Will a ball thrown in the air fall back to earth?” then you would get a definitive answer. But in the law, the only answer that counts is what courts say. In your regard, the experiment was conducted in 2008. Someone in your situation, born overseas to US citizen parents, ran for President and no court moved to stop him. There is little doubt that had he won, no court would have stopped him from taking office. So, effectively, John McCain (and you) are considered eligible to be President. It makes no difference how many citations some internet lawyer can give pro and con or if the courts were “right” or “wrong”-all that matters is what the courts did (or more accurately did not do).

  210. avatar
    Saint James May 27, 2010 at 6:55 am #

    Scientist: Saint James, with all due respect, there is no answer to your question. If you asled, “Will a ball thrown in the air fall back to earth?” then you would get a definitive answer. But in the law, the only answer that counts is what courts say. In your regard, the experiment was conducted in 2008. Someone in your situation, born overseas to US citizen parents, ran for President and no court moved to stop him. There is little doubt that had he won, no court would have stopped him from taking office. So, effectively, John McCain (and you) are considered eligible to be President. It makes no difference how many citations some internet lawyer can give pro and con or if the courts were “right” or “wrong”-all that matters is what the courts did (or more accurately did not do).

    Thanks so much for your words of wisdom. My parents always reiterate that “the most simple explanations usually lead to correct solutions”. Reading from wikipedia and its footnote source information (after I posted my question) also helped me understand the issue…e.g., “An April 2000 CRS report by the Congressional Research Service, asserts that most constitutional scholars interpret the phrase “natural born citizen” as including citizens born outside the United States to parents who are U.S. citizens under the “natural born” requirement.”

    Once again, Thanks so much!

  211. avatar
    Paul Pieniezny May 27, 2010 at 9:56 am #

    Mike: Hmmm. Don’t think I agree with that one; AFAIK, European law leaves national citizenship in the hands of the countries. While Maastricht did create a European Union citizenship, this is similar to that pertaining to the US under the Articles of Confederation – it is a secondary citizenship deriving from national citienships. I’m pretty sure this falls under the exclusive competencies of the member states, and consequently a member state can require singular citizenship. I’d have to check, not that I’m eager to start reading European treaties; they tend to be rather dry…

    There was a decision by the Bundesverfassungsgericht in 2005 which was actually about the international arrest mandate through the Schengen Treaty. It saw a few problems with article 29 (dual citizenship renunciation) of the 2000 citizenship law under that treaty.

    The court thought that the fact that Germans could become Swiss or Belgian easily, but not the opposite – would be undemocratic since some would then be able to choose the venue for a case (here probably for their appeal against extradition) and others would not.

    It is now generally understood that there are a number of “accepted exceptions” to the rule of article 29. Article 12 did say that exceptional circumstances were possible. See
    http://de.wikipedia.org/wiki/Deutsche_Staatsangeh%C3%B6rigkeit#Einb.C3.BCrgerung_.28Naturalisation.29_.E2.80.93_Erwerb_durch_Verwaltungsakt

    It is in the last paragraph there (“Sofern für eine Einbürgerung die Bereitschaft erforderlich ist”) – unfortunately, you have to understand a bit of German, as Google Translate has a big problem with tight legalistic German…

    Of course, since most of these “options” will only be made from 2023 onwards, there is still ample time to change the law in the meantime.

  212. avatar
    JoZeppy May 27, 2010 at 10:34 am #

    Saint James: But a question remains unanswered. Is a Citizen “at birth” the same as a Natural Born Citizen?

    In September 2008, the Michigan Law Review First Impressions (that’s volume 107 for Looking it up), did a series of articles on John McCain’s citizenship. There was actually some debate over it. One aurthor refered to McCain’s citizenship as “Naturalized as Birth” and thus not a natural born citizen (or were they disputing this catagorization…I can’t remember). There are some scholars that look at a situation like McCain’s where their citizenship is rooted in statute, rather than merely jus soli, and say that any citizenship derrived by statute, even if conferred at birth, is a form of naturalization, and thus citizen at birth, is not the same as natural born citizen. They also argued that this will probably never be seriously challenged for policy reasons, the idea of disenfranchising those, like McCain, who are children of those serving the United States abroad, is not a position that anyone will want to take (you’ll note how quick the Senate was to declare McCain a natural born citizen).

    Which of course, this is all the more evidence to the fact that there is no two (or even one) parent requirement for natural born citizenship for those born on US soil. McCain, who was declared a natural born citizen, was still the subject of serveral law journal articles as a result of his citizenship, and yet, not a single law journal article on Obama, Vattel, and the requirement of parent citizens for natural born citizenship. Could it be the real “constitutional attorneys” consider this issue long settled?