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An important essay on “natural born citizen”

In 1967, an essay entitled “Natural Born Citizen,” by the Hon. Pinckney G. McElwee of the Bar of the District of Columbia, was entered into the Congressional Record by Mr. Dowdy. This is an extensive and scholarly treatment of the history and the cases related to the term “natural born citizen”. It was written in the context of a possible candidacy of Governor George Romney (born in Mexico) for president.

The material may be well-known to readers here, but I found some things I did not know. Some historical assertions in the essay are not backed by citations. This text certainly has application to the eligibility of John McCain, but  it assumes throughout that those born citizens in the United States are natural born citizens.

Thanks to the reader who sent me this.  Text follows:

Update:

The text from the Congressional Record of the 90th Congress, June 14, 1967, has been removed from Scibd since the publication of this article. Here is a link to a text copy on NBC’s blog:

96 Responses to An important essay on “natural born citizen”

  1. avatar
    bob July 13, 2010 at 10:06 pm #

    Love it!

    Loved it last year, too.

    😉

  2. avatar
    Dr. Conspiracy July 13, 2010 at 10:15 pm #

    You know I don’t think much of the birther blogs that just cut and paste each other. I don’t want to be like that, and so for that reason, and a general lack of extra time, I don’t get much chance to read blogs that I generally agree with. That leads to glaring omissions, but also to a genuinely independent voice. This article does make it clearer why NBC says John McCain was not eligible to be president. It certainly is a thorny question.

  3. avatar
    misha July 14, 2010 at 12:31 am #

    One more thing to note: George Romney’s father was a polygamist, which is why he lived in Mexico.

    You know what I would like to see? A TV show “My Two Moms.”

  4. avatar
    charo July 14, 2010 at 6:46 am #

    To forestall possible objections, the McCain campaign requested an opinion from Harvard Law Professor Laurence H. Tribe and former Solicitor General Theodore B. Olson. That opinion appears as Appendix A to an article by Gabriel Chin (Chin disagrees that McCain is a natural born citizen). The US Senate took up a resolution (S. Res. 511) that declared John McCain a natural born citizen. The resolution, sponsored by Barack Obama and Hillary Clinton, passed unanimously. http://www.obamaconspiracy.org/2010/05/john-mccain-natural-born-citizen/

    One big happy family? Hillary Clinton had no idea at this point that she was going to lose. No idea until the very end. As for challenging Obama’s eligibility? Let’s look back at the climate:

    Bill Clinton: “I Am Not A Racist” http://www.cbsnews.com/stories/2008/08/04/politics/main4318795.shtml

    Asked in the interview whether he blames himself for his wife’s loss, Clinton replied, “I’ve heard it from the press and I will not comment on it. … There are things I wished I said. Things I wished I hadn’t said, but I am not a racist. I never made a racist comment and I didn’t attack him personally.”

    Nevertheless, Clinton did say he thought news organizations covered his wife more harshly than Obama. “A different standard was applied to the finest candidate I ever supported,” he said. Clinton declined to comment on whether he thought Obama should put his wife on the ticket and he said he admires how she handled the loss. “She went right back to work,” he said.

    For example, he charged that news organizations were more likely to accuse Hillary than Obama of going negative.

    “He hit her hard a couple times. And they hit us a few weeks before she ever responded in kind,” he said. “The only thing I ever got mad about, people in your line of work pretending that she had started negative stuff. It’s contact sport.”

    Challenging eligibility after she sponsored the McCain resolution? Right…

    **********

    http://www.nytimes.com/2008/07/11/us/politics/11mccain.html?_r=1 A Hint of New Life to a McCain Birth Issue

    … The analysis, by Prof. Gabriel J. Chin, focused on a 1937 law that has been largely overlooked in the debate over Mr. McCain’s eligibility to be president.

    ““It’s preposterous that a technicality like this can make a difference in an advanced democracy,” Professor Chin said. “But this is the constitutional text that we have.”

    Several legal experts said that Professor Chin’s analysis was careful and plausible. But they added that nothing was very likely to follow from it.

    “No court will get close to it, and everyone else is on board, so there’s a constitutional consensus, the merits of arguments such as this one aside,” said Peter J. Spiro, an authority on the law of citizenship at Temple University. [Find that statement a little disconcerting, such as there is a constitutional consensus outside of any ruling by a court? Nevermind…]

    Mr. McCain has dismissed any suggestion that he does not meet the citizenship test. [Ya think?]

    “In an interview on Thursday, Mr. Olson, whose firm represents Mr. McCain in the New Hampshire lawsuit, said Congress could not have intended to leave the gap described by Professor Chin. The 1937 law, Mr. Olson said, was not a fix but a way to clarify what Congress had meant all along.” [An analysis as to why the testimony from the Congressional Record cited above is inapplicable would have been nice in the legal opinion for McCain. But when you have argued 34 cases before the Supreme Court, you don’t have to be thorough. I guess. Your reputation takes away that obligation.]

  5. avatar
    brygenon July 14, 2010 at 7:24 am #

    Our host, Dr. C., writes, “This is an extensive and scholarly treatment of the history and the cases related to the term “natural born citizen”.

    This a political hit piece against George Romney. The author is clearly aware of the simple rule the Supreme Court quoted to A.V. Dicey in U.S. v. Wong Kim Arc:

    “Natural-born British subject” means a British subject who has become a British subject at the moment of his birth.

    “Natural born citizen” implies invokes neither parentage nor location, only time. As Yale and Harvard Professor Akhil Reed Amar explained it to lay audience:

    The Constitution’s rule that the president be “a natural born citizen” focuses not on where a person became a citizen, but when. To be eligible, one must be born a citizen rather than naturalized at some later date.
    http://www.slate.com/id/2183588

    I further disagree with Dr. C when he writes, “This text certainly has profound application to the eligibility of John McCain”.

    John S. McCain III was born on a United States air and submarine base in Panama because that’s where the U.S. Navy stationed John S. McCain II. How much more born in the allegiance of the United States can one get?

  6. avatar
    charo July 14, 2010 at 7:28 am #

    brygenon: ohn S. McCain III was born on a United States air and submarine base in Panama because that’s where the U.S. Navy stationed John S. McCain II. How much more born in the allegiance of the United States can one get?

    What is your response to the above (from my comment above)?

    ““It’s preposterous that a technicality like this can make a difference in an advanced democracy,” Professor Chin said. “But this is the constitutional text that we have.”

  7. avatar
    charo July 14, 2010 at 7:36 am #

    brygenon,

    I meant the comment below that I quoted form above. Sorry for the mistype.

  8. avatar
    charo July 14, 2010 at 7:37 am #

    FROM not form- sorry again

  9. avatar
    charo July 14, 2010 at 7:50 am #

    brygenon,

    That doesn’t answer the question. McCain would not have done any better with Pawlenty, or Romney, or … . He chose her; she didn’t put herself on the list. The choice energized a dead campaign. But I am getting OT.

  10. avatar
    Dr. Conspiracy July 14, 2010 at 7:52 am #

    brygenon: This a political hit piece against George Romney.

    While I might be persuaded to agree with you after an argument based on a careful analysis of the text, I did not see while reading it that the argument was presented unfairly or that the sources were taken out of context. I think the argument is well-made and logical. That is not to say that a counterargument does not exist; it does.

    The piece deals with your objection from Wong when he notes that citizenship by parentage was not part of the British Common Law; it was legislation. British Common Law is the basis for the definition of terms in the Constitution, not the British code of laws.

    That is of course moot if the Panama Canal Zone is part of the United States. Before taking a firm position, I need to read Laurence Tribe’s piece.

  11. avatar
    Bdaman July 14, 2010 at 7:55 am #

    #22 Dr. Conspiracy 2010-07-14 03:37
    {To reiterate, Obama’s putative father was not a citizen of the United States. Therefore, Obama is not an Article II “natural born citizen” of the United States. Thus, Obama is not “eligible to the office of President”.}

    Like I said we all know he is a foreigner by birth/British Subject, but support him anyway.

    The US government will not do anything about it. He got away with posting an online image as proof of citizenship.

    I am not making this up. I have hundreds of followers that post comments on my blog who think Obamba is legit.

    2012 is right around the corner. I have $10,000 that says he will get on all 57 State ballots.

    http://www.thecitizen.co.tz/magazines/32-political-platform/2708-zanzibar-could-reverse-trend-to-have-president-from-pemba.html#comment-885

  12. avatar
    charo July 14, 2010 at 7:56 am #

    Please don’t call me a sock puppet of Bdaman.

  13. avatar
    Dr. Conspiracy July 14, 2010 at 8:05 am #

    charo (quoting McCain’s attorney Olson): Congress could not have intended to leave the gap described by Professor Chin

    McElwee anticipated this argument when he points out that Congress only has the power under the Constitution to make naturalized citizens.

    In your chronology of events, just remember that Sen R. 511 was introduced in April 10, 2008.

  14. avatar
    Dr. Conspiracy July 14, 2010 at 8:16 am #

    misha: You know what I would like to see? A TV show “My Two Moms.”

    There was an HBO series on this topic, Big Love.

  15. avatar
    charo July 14, 2010 at 8:29 am #

    Dr. Conspiracy:
    McElwee anticipated this argument when he points out that Congress only has the power under the Constitution to make naturalized citizens.
    In your chronology of events, just remember that Sen R. 511 was introduced in April 10, 2008.

    Thanks for the correction.

  16. avatar
    PetJake July 14, 2010 at 8:29 am #

    Dr. Conspiracy:
    “I feel very strongly that any attempt to mislead the public for political gain is a crime against democracy”

    If that was really the case, Doc, Barack Obama would have been in jail by now.

  17. avatar
    PetJake July 14, 2010 at 8:31 am #

    Along with the rest of the scumbags who accepted bribes to pass the health care bill.

  18. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 14, 2010 at 9:01 am #

    charo: Even Rachel Maddow took her side on that one.So don’t vote for her if she runs for president.

    Rachel Maddow took her side? Prove it

  19. avatar
    brygenon July 14, 2010 at 9:05 am #

    charo:
    What is your response to the above (from my comment above)?““It’s preposterous that a technicality like this can make a difference in an advanced democracy,” Professor Chin said. “But this is the constitutional text that we have.”

    Thanks for asking. I’m happy to respond.

    First, note what Professor Chin did and did not argue: Chin could not find any clear statute that declared John S. McCain III a U.S. citizen at the time of McCain’s birth. Chin accepts that “natural born citizen” means citizen at birth, but argues that the details of when the laws were enacted leaves McCain “Eleven Months and a Hundred Yards Short of Citizenship”.

    Professor Chin agrees that a citizen at birth is natural-born citizen. Read his paper. Had John McCain been born 11 months later, he would have been born after enactment of the 1937 statute which covered children born in the Canal Zone.

    Where I think Professor Chin goes wrong is in putting tricky minutiae above fundamental principles expressed in the law. There may have been a logical gap in the written code as of 29 August 1936, but that kind of thing happens all the time. Legislatures frequently make trivial mistakes, and our courts are smart enough not to take obvious blunders as controlling law. There are gaps and contradictions in our laws even today.

    Who ever told John Sidney McCain II and Roberta Wright McCain that they had better apply to get that Panamanian kid of theirs naturalized? It’s nonsense. There was not one second in John McCain’s life when any sane person questioned whether he was American. John S. McCain III is a natural-born citizen of the United States.

  20. avatar
    charo July 14, 2010 at 9:12 am #

    brygenon: There was not one second in John McCain’s life when any sane person questioned whether he was American. John S. McCain III is a natural-born citizen of the United States.

    There are people who think the law should be changed to clearly reflect what everybody wants regarding children born of military parents: they are natural born.

    Thanks for your response.

  21. avatar
    charo July 14, 2010 at 9:31 am #

    The archives of Rachel Maddow’s show begin September 9, 2008. The comments I heard her initially make would have been prior to that, when the tasering issue was discussed.

  22. avatar
    charo July 14, 2010 at 9:39 am #

    Because the show started September 8, what I saw was probably when she was a guest on the show that was in the line-up prior to her show starting. It would have been in the same time frame of troopergate. But, it’s time to move on.

  23. avatar
    Rickey July 14, 2010 at 9:56 am #

    charo: The US Senate took up a resolution (S. Res. 511) that declared John McCain a natural born citizen. The resolution, sponsored by Barack Obama and Hillary Clinton, passed unanimously.

    I’ve noticed that when birthers bring up Senate Resolution 511, they always manage to omit the fact that one of the co-sponsors was Senator Tom Coburn, Republican-Oklahoma.

    The actual sponsor was Senator McCaskill of Missouri. Obama and Clinton were co-sponsors, as were Senators Coburn, Leahy and Webb.

  24. avatar
    Dave July 14, 2010 at 9:59 am #

    charo: Challenging eligibility after she sponsored the McCain resolution?Right…**********

    I have to say I don’t understand this comment at all. What relationship could there be between Clinton’s support of the McCain resolution, and her questioning Obama’s eligibility? The circumstances of their births are entirely different, so it’s not that she would appear inconsistent. So what do you mean?

  25. avatar
    Rickey July 14, 2010 at 10:06 am #

    Dr. Conspiracy:
    There was an HBO series on this topic, Big Love.

    The still is, though they are between seasons at the moment.

  26. avatar
    Rickey July 14, 2010 at 10:06 am #

    Oops, meant “There still is…”

  27. avatar
    charo July 14, 2010 at 11:13 am #

    Dave:
    I have to say I don’t understand this comment at all. What relationship could there be between Clinton’s support of the McCain resolution, and her questioning Obama’s eligibility? The circumstances of their births are entirely different, so it’s not that she would appear inconsistent. So what do you mean?

    The full context is that Clinton backed up McCain. To attack Obama’s eligibility (for whatever reason) after her loss would paint her as a racist (racist claims had been lodged against Bill during the campaign). That is just my opinion of course.

  28. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 14, 2010 at 11:20 am #

    charo: The full context is that Clinton backed up McCain. To attack Obama’s eligibility (for whatever reason) after her loss would paint her as a racist (racist claims had been lodged against Bill during the campaign). That is just my opinion of course.

    Two totally different situations. Obama was born here McCain was not. If I was to go full on birther and continue denying evidence I could just as easily say well there is a possibility that because of the way McCain cheated on his wife, McCain’s father could have done the same knocked some woman up kept her quiet and then McCain’s father’s wife cared for the child. See how easy it is to be a birther.

  29. avatar
    Sef July 14, 2010 at 11:21 am #

    Dave:
    I thought this conversation started with you trying to explain why Clinton didn’t raise the issue of Obama’s eligibility back during the primary campaign.

    Why didn’t Hilary raise the issue of Obama’s eligibility during the primary campaigns? She probably thought it would make her look like an idiot not to know that birth on U.S. soil equates to NBC.

  30. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 14, 2010 at 11:23 am #

    Dave: I thought this conversation started with you trying to explain why Clinton didn’t raise the issue of Obama’s eligibility back during the primary campaign.

    Charo misunderstood what Misha was saying. The bit about what Misha experienced in Anchorage Misha has discussed in another thread. The general antisemitism that exists there and Misha experienced it first hand.

  31. avatar
    Dave July 14, 2010 at 11:28 am #

    charo:
    The full context is that Clinton backed up McCain.To attack Obama’s eligibility (for whatever reason) after her loss would paint her as a racist (racist claims had been lodged against Bill during the campaign).That is just my opinion of course.

    Why didn’t she bring it up before she lost?

    And again, I have to ask what is the relationship between McCain’s eligibility and Obama’s, since the circumstances were completely different?

    And the idea of Clinton quailing at the thought of anyone issuing a baseless charge of racism is ridiculous. She was campaigning furiously against Obama, she was trying to get delegates pledged to Obama to vote for her, I don’t know of anything she wasn’t doing to win. But she never questioned his eligibility — in my view, because she thought it would sound ridiculous.

  32. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 14, 2010 at 11:38 am #

    Bdaman: #22 Dr. Conspiracy 2010-07-14 03:37{To reiterate, Obama’s putative father was not a citizen of the United States. Therefore, Obama is not an Article II “natural born citizen” of the United States. Thus, Obama is not “eligible to the office of President”.}Like I said we all know he is a foreigner by birth/British Subject, but support him anyway.The US government will not do anything about it. He got away with posting an online image as proof of citizenship.I am not making this up. I have hundreds of followers that post comments on my blog who think Obamba is legit.2012 is right around the corner. I have $10,000 that says he will get on all 57 State ballots.http://www.thecitizen.co.tz/magazines/32-political-platform/2708-zanzibar-could-reverse-trend-to-have-president-from-pemba.html#comment-885

    Doc it looks like someone is pretending to be you at another site but being a birther this time.

  33. avatar
    HORUS July 14, 2010 at 11:55 am #

    brygenon, The base hospital where McCain’s father was stationed did not have a maternity ward.
    McCain was born in a Panamanian hospital.

  34. avatar
    sfjeff July 14, 2010 at 12:21 pm #

    “brygenon, The base hospital where McCain’s father was stationed did not have a maternity ward.
    McCain was born in a Panamanian hospital.”

    Horus- do you have proof of that?

  35. avatar
    sfjeff July 14, 2010 at 12:30 pm #

    I suppose it is too much to ask Petjake to actually provide support for his accusations? Yeah I thought so.

  36. avatar
    nbC July 14, 2010 at 12:37 pm #

    HORUS: McCaskill

    That’s not what the evidence shows.

  37. avatar
    nbC July 14, 2010 at 12:39 pm #

    nbC: HORUS

    I was referring to Horus’s claim that suggested that McCain was born in a Panamanian hospital when the evidence shows otherwise.

    However, regardless of his location of birth, he was not born on US soil.

  38. avatar
    kimba July 14, 2010 at 1:04 pm #

    “charo 14. Jul, 2010 at 9:12 am charo(Quote) #

    There are people who think the law should be changed to clearly reflect what everybody wants regarding children born of military parents: they are natural born. ”

    *People* who think the law should be changed are not familiar that current law already reflects that. Unless of course, as I suspect, you believe there is a difference between a born citizen and a natural born citizen.

    http://www.law.cornell.edu/uscode/8/1401.html

    “The following shall be nationals and citizens of the United States at birth:

    (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; ”

    John McCain is a person born outside of the United States of parents both of whom are citizens of the United States. Already covered.

    By the way:
    “(a) a person born in the United States, and subject to the jurisdiction thereof”
    Barack Obama is a person born in the United States and subject to the jurisdiction thereof. Done and Done.

  39. avatar
    charo July 14, 2010 at 1:12 pm #

    kimba: *People* who think the law should be changed are not familiar that current law already reflects that. Unless of course, as I suspect, you believe there is a difference between a born citizen and a natural born citizen.

    “Sen. Claire McCaskill (D., Mo.) has introduced legislation that would declare that any child born abroad to citizens serving in the United States military to be natural born citizens for the purposes of the constitution.”

    More at http://jonathanturley.org/2008/03/01/legislation-introduced-to-remove-mccains-panama-problem-in-seeking-presidency/

  40. avatar
    charo July 14, 2010 at 1:27 pm #

    Bob Ross,

    This is what I said after clarifying and the above supports my memory.

    :” Didn’t take her side in ethics, but seemed sympathetic to protecting the boy being tasered wehn this first broke. I tried to find a youtube video (I watched it live where she seemed sympathetic) “

  41. avatar
    charo July 14, 2010 at 1:32 pm #

    Bob Ross,

    Obama quits Senate after 46 months–21 of them seeking another job
    November 13, 2008 | 9:47 pm

    http://latimesblogs.latimes.com/washington/2008/11/obama-senate.html

    You are 0/2 in your smear campaign, but that’s okay. It’s helping me to become desensitized to anonymous people who hate me.

  42. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 14, 2010 at 1:46 pm #

    charo: “Sen. Claire McCaskill (D., Mo.) has introduced legislation that would declare that any child born abroad to citizens serving in the United States military to be natural born citizens for the purposes of the constitution.”More at http://jonathanturley.org/2008/03/01/legislation-introduced-to-remove-mccains-panama-problem-in-seeking-presidency/

    That’s right now so does that imply that the law doesn’t currently support McCain’s situation?

  43. avatar
    charo July 14, 2010 at 1:51 pm #

    Dave: Why didn’t she bring it up before she lost?

    There have been several discussion where it has been said that if there were something to the eligibility issue, Clinton and McCain would have brought it forth. It may have been problematic for McCain to take up eligibility given his own situation and during the campaign Bill Clinton had to fend off a racism charge. Bring up eligibility? No way. It was not politically expedient for either McCain or Clinton to bring up the issue. But this itself doesn’t prove there is an issue. It was merely my opinion that we don’t know for sure what was in the minds of either candidate.

    “I never was mad at Sen. Obama,” the former president said. “I think everybody’s got a right to run for president who qualifies under the Constitution. And I’d be the last person to begrudge anybody their ambition.” It seemed (in my onion again) weird that Bill Clinton bothered to this the way he did.
    I am not a mind reader, though.

  44. avatar
    kimba July 14, 2010 at 2:45 pm #

    “charo 14. Jul, 2010 at 1:12 pm charo(Quote) #
    “Sen. Claire McCaskill (D., Mo.) has introduced legislation that would declare that any child born abroad to citizens serving in the United States military to be natural born citizens for the purposes of the constitution.”

    Your link was to a 2-1/2 year old article. McCaskill introduced SR278: Children of Military Families Natural Born Citizen Act on Feb 28, 2008. It was referred to the Senate Judiciary Committee and died there when the 110th Congress ended on January 3 2009. You might be interested to know the bill had 4 sponsors, 2 of whom were Barack Obama and Hillary Rodham Clinton. The text of the bill states it is a bill meant “to clarify the law”.

    The law is USC 8 1401 and it already clearly states that a person born overseas to US Citizens IS a natural born citizen. You should read it. Turley is mistaken that natural born means “must be born inside the US. “

  45. avatar
    charo July 14, 2010 at 2:49 pm #

    kimba: Turley is mistaken that natural born means “must be born inside the US. ”

    Take it up with him.

  46. avatar
    kimba July 14, 2010 at 2:52 pm #

    “charo 14. Jul, 2010 at 2:49 pm charo(Quote) #
    Take it up with him.”

    No, I’m taking it up with you. You are either disingenuous or sloppy to cite a long-expired legislative proposal as if it is current and without checking content for accuracy.

  47. avatar
    charo July 14, 2010 at 2:53 pm #

    kimba: The text of the bill states it is a bill meant “to clarify the law”.

    “changed to clearly reflect” (charo)

    Parsing of words, maybe?

  48. avatar
    charo July 14, 2010 at 2:54 pm #

    kimba: “charo 14. Jul, 2010 at 2:49 pmcharo(Quote) #
    Take it up with him.”No, I’m taking it up with you.You are either disingenuous or sloppy to cite a long-expired legislative proposal as if it is current and without checking content for accuracy.

    I don’t have to respond to your demands. You have had a stick up your behind from the get-go.

  49. avatar
    kimba July 14, 2010 at 2:58 pm #

    charo 14. Jul, 2010 at 2:53 pm charo(Quote) #

    “Parsing of words, maybe?”

    The phrase “to clarify the law” is quoted exactly from teh text of McCaskill’s dead bill.
    http://frwebgate.access.gpo.gov/cgi-bin/getdoc.cgi?dbname=110_cong_bills&docid=f:s2678is.txt.pdf

    How comical that you cite stuff you don’t seem to have read.

  50. avatar
    kimba July 14, 2010 at 3:00 pm #

    “charo 14. Jul, 2010 at 2:54 pm charo(Quote) #
    I don’t have to respond to your demands. You have had a stick up your behind from the get-go.”

    HAHAHAHA!!!! Oh charo, you behave like so many birther before you: the least bit of pressure to back up the nonsense you spew and you get nasty. Hilarious.

  51. avatar
    Rickey July 14, 2010 at 3:05 pm #

    HORUSThe base hospital where McCain’s father was stationed did not have a maternity ward.

    Even if that is true, it doesn’t prove anything. The base hospital was a small one, so it would not be surprising if there were not enough births there to justify a dedicated maternity ward. However, the idea that the wife of a Naval officer would choose to give birth in a Panama hospital by Panama doctors makes no sense when American physicians were available to her at the base hospital. In addition, if there were complications Mrs. McCain had Navy air transport at the base available to transport her to a hospital in the U.S. if necessary. We also have Mrs. McCain’s own account that she gave birth in the base hospital, and there is a contemporaneous newspaper account which says the same thing.

    McCain was born in a Panamanian hospital.

    You have proof of this? I didn’t think so.

  52. avatar
    charo July 14, 2010 at 3:08 pm #

    charo:
    I don’t have to respond to your demands.You have had a stick up your behind from the get-go.

    Although the legislation died, it indicates that there was a need for clarification. If you don’t see the wording to make a law “clearly reflect” as synonymous with “clarifying” then sorry.

    The legislation, although dead, indicates that the sponsors felt clarification was needed. That seemed pretty obvious to me.

    Glad to provide entertainment.

  53. avatar
    kimba July 14, 2010 at 3:28 pm #

    “charo 14. Jul, 2010 at 3:08 pm charo(Quote) #
    The legislation, although dead, indicates that the sponsors felt clarification was needed.”

    The bill was referred to committee and never emerged, indicating the other 95 Senators, or least those on the Judiciary Committee, did not agree. Citing a dead bill as though it is important or means something is like arguing using the minority opinion in a court case. McCaskill could propose it again in the 111th Congress, but hasn’t. The law states the children of US citizens born overseas are born citizens. Pretty clear.

  54. avatar
    charo July 14, 2010 at 3:42 pm #

    kimba: The law states the children of US citizens born overseas are born citizens. Pretty clear.

    kimba: The law states the children of US citizens born overseas are born citizens. Pretty clear.

    I guess it wasn’t all that clear to Hillary Clinton and Barack Obama if they were co-sponsors of the bill.

  55. avatar
    Ellid July 14, 2010 at 3:46 pm #

    PetJake: Along with the rest of the scumbags who accepted bribes to pass the health care bill.

    Please state for the record the name of each “scumbag,” the amount s/he accepted, the identity of the briber, the source of the money, when the brief took place, and your source for this information. The source must be a mainstream publication such as Time, Newsweek, the New York Times, the Washington Post, the Boston Globe, LA Times, Chicago Tribune, etc., NOT a right-wing blog.

    If you cannot produce same, then kindly stop trolling. Thank you.

  56. avatar
    kimba July 14, 2010 at 3:51 pm #

    “charo 14. Jul, 2010 at 3:42 pm charo(Quote) #

    I guess it wasn’t all that clear to Hillary Clinton and Barack Obama if they were co-sponsors of the bill.”

    Perhaps they did on Feb 28, 2008. However there was another activity within the Senate, also introduced by McCaskill that accomplished what S2678 really intended. If you recalled what it was, you would understand why S2678 did not advance.

  57. avatar
    charo July 14, 2010 at 3:57 pm #

    If you mean the Resolution, it had no legal effect.

  58. avatar
    Rickey July 14, 2010 at 3:59 pm #

    charoI guess it wasn’t all that clear to Hillary Clinton and Barack Obama if they were co-sponsors of the bill.

    It also was co-sponsored by Senators Tom Coburn (R-Oklahoma( and Robert Mendendez (D-New Jersey).

    You also seem to be assuming facts which are not in evidence. I have seen nothing which suggests that the Senators felt that it was “necessary” to clarify the NBC status of the children of military personnel serving abroad. They may have simply felt that it was desirable to do so. And in point of fact they did not push it very far. The bill was referred to the Senate Judiciary Subcommittee, but the subcommittee took no action on it, even though co-sponsor Coburn is on the subcommittee. This would suggest that the sponsors decided that it wasn’t necessary or desirable after all.

  59. avatar
    charo July 14, 2010 at 4:01 pm #

    Rickey: You also seem to be assuming facts which are not in evidence. I have seen nothing which suggests that the Senators felt that it was “necessary” to clarify the NBC status of the children of military personnel serving abroad.

    There might be something in the congressional record, but I don’t have the time now to look it up.

  60. avatar
    charo July 14, 2010 at 4:07 pm #

    There doesn’t appear to be anything other than the reading of the bill.

  61. avatar
    AnotherBird July 14, 2010 at 4:09 pm #

    kimba:
    The law states the children of US citizens born overseas are born citizens.Pretty clear.

    There is no need “beating a dead horse.” Birthers have the bad habit of taking 8 categories where children can become a natural born citizen (citizen by birth) and withering it down to one. These guys can’t even point to one law that supports their arguments.

  62. avatar
    kimba July 14, 2010 at 4:13 pm #

    charo 14. Jul, 2010 at 3:57 pm charo(Quote) #
    If you mean the Resolution, it had no legal effect.

    Of course “the Resolution”! SB2678 was intended solely to help McCain. We can’t know the talk behind the scenes about a bill in committee, but probably the committee could not understand why a law was needed to clarify existing law that already says what the bill said, when the real intent was to help McCain. So 6 weeks later, on April 10, Sen McCaskill proposed SR 511, a resolution declaring John McCain to be a natural born citizen. In less than 3 weeks, the bill was marked up and referred to the full Senate by the Judiciary Committee, just like a bill and approved by the full Senate. Whether a Senate resolution is legally binding ior even needed is not what is interesting. What is interesting is the sponsors were satisfied with a resolution, and agreed there was no need to clarify the law.

  63. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 14, 2010 at 4:20 pm #

    charo: Actually, second place…

    Third place she was second runner up
    http://www.washingtonpost.com/wp-dyn/content/article/2008/09/08/AR2008090800094.html

  64. avatar
    charo July 14, 2010 at 4:37 pm #

    I am going to quit using the quote function. The Majority Will quote should not be there.

  65. avatar
    charo July 14, 2010 at 4:41 pm #

    Dr. Kenneth Noisewater (Bob Ross):

    Actually birthers seem to outweigh the regulars here.

    Now that is simply laughable.

  66. avatar
    Dr. Conspiracy July 14, 2010 at 4:43 pm #

    Dr. Kenneth Noisewater (Bob Ross) (@ charo): That’s the problem when you’re emotionally unstable you think everyone is out to get you.

    Was that really necessary?

  67. avatar
    Dr. Conspiracy July 14, 2010 at 4:48 pm #

    charo: “Sen. Claire McCaskill (D., Mo.) has introduced legislation that would declare that any child born abroad to citizens serving in the United States military to be natural born citizens for the purposes of the constitution.”

    Congress pass a law to make some eligible to be president? Such a law would be unconstitutional. Congress cannot “define” the meaning of terms in the Constitution; that would take an amendment. That’s probably why the bill never made it out of committee.

  68. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 14, 2010 at 4:48 pm #

    Dr. Conspiracy: Was that really necessary?

    Sorry that was my psychology/sociology courses talking.

  69. avatar
    Dr. Kenneth Noisewater (Bob Ross) July 14, 2010 at 4:49 pm #

    charo: Now that is simply laughable.

    That’s not laughable. Name the regulars then go back through threads. Many of the threads are spent responding to birthers. Just this last week we’ve had at least 20 different birthers come in and tie down the threads.

  70. avatar
    brygenon July 14, 2010 at 4:51 pm #

    Dr. Conspiracy: The piece deals with your objection from Wong when he notes that citizenship by parentage was not part of the British Common Law; it was legislation. British Common Law is the basis for the definition of terms in the Constitution, not the British code of laws.

    That still conflates the issues of language and law. We adopted the language of British Common Law, but not the law itself. As a matter of language, “Natural born citizen” means one who is born a citizen. There’s simply nothing in the term about either parentage or location. The legal question is then the criteria for being born a citizen, and on that we did not necessarily follow British Common Law.

    U.S. v. Wong Kim Arc quotes Smith v. Alabama:

    There is no common law of the United States, in the sense of a national customary law, distinct from the common law of England as adopted by the several States each for itself, applied as its local law, and subject to such alteration as may be provided by its own statutes. . . . There is, however, one clear exception to the statement that there is no national common law. The interpretation of the Constitution of the United States is necessarily influenced by the fact that its provisions are framed in the language of the English common law, and are to be read in the light of its history.

  71. avatar
    Dr. Conspiracy July 14, 2010 at 4:58 pm #

    HORUS: McCain was born in a Panamanian hospital.

    That’s not what the newspaper birth announcement said. There’s no reason to believe McCain was born off the CoCo Solo Sub base.

  72. avatar
    brygenon July 14, 2010 at 5:07 pm #

    HORUS: brygenon, The base hospital where McCain’s father was stationed did not have a maternity ward.
    McCain was born in a Panamanian hospital.

    You’ve fallen for a birther myth. McCain was born at Coco Solo Naval Air Station.

    http://voices.washingtonpost.com/fact-checker/2008/05/john_mccains_birthplace.html
    http://www.washingtonpost.com/wp-srv/politics/documents/mccain_announcement_041708.pdf

    Lack of a maternity ward means nothing. An interesting trivia fact I learned in the course of studying birtherism is that Barack Obama is only the fourth U.S. president that was born in a hospital.

  73. avatar
    bob July 14, 2010 at 5:17 pm #

    Taitz’s application in Rhodes finally on SCOTUS’ docket.

  74. avatar
    charo July 14, 2010 at 6:26 pm #

    Dr. Conspiracy: Congress pass a law to make some eligible to be president? Such a law would be unconstitutional. Congress cannot “define” the meaning of terms in the Constitution; that would take an amendment. That’s probably why the bill never made it out of committee.

    IMO, there had to have been a lot going on behind the scenes given the people who supported the legislation (Clinton and Obama). They would have known exactly what you said. Someone above said maybe it was done somewhat as a gesture, the “right thing to do” so to speak. It’s hard for me to believe that any politician initiates legislation for that reason, particularly when two supporters are vying for the presidency,and the legislation directly affects another candidate. There is always something behind the scenes.

  75. avatar
    kimba July 14, 2010 at 6:48 pm #

    charo 14. Jul, 2010 at 6:26 pm charo(Quote) #
    Dr. Conspiracy: Congress pass a law to make some eligible to be president? Such a law would be unconstitutional. Congress cannot “define” the meaning of terms in the Constitution; that would take an amendment. That’s probably why the bill never made it out of committee.

    IMO, there had to have been a lot going on behind the scenes given the people who supported the legislation (Clinton and Obama). They would have known exactly what you said. Someone above said maybe it was done somewhat as a gesture, the “right thing to do” so to speak. It’s hard for me to believe that any politician initiates legislation for that reason, particularly when two supporters are vying for the presidency,and the legislation directly affects another candidate. There is always something behind the scenes.”

    Who said it was “a gesture”? “the right thing to do”? I don’t find that anywhere in the comments here. Just because people are US Senators and many of them are lawyers as well does not mean they are experts on the law or the Constitution. Claire McCaskill walks up to Hillary Clinton or Barack Obama and says ” will you sponsor my legislation?” And if they like it they agree, and it gets a reading. It’s the responsibility of the staff of the Committees to look over proposed legislation and determine if it’s Constitutional, if it’s legal or if perhaps the law proposed really already exists. That is probably what happened here because the law already exists. Children of Citizens born overseas ARE born citizens, eligible to be President. The bill proposed clarifying the law, but the law is perfectly clear already. Now, if you want to know why they then put forward the resolution specifically for John McCain, which did get through review by the staff, markup and got passed out of committee to a full vote of the Senate, call the Chief of Staff of the Judiciary Committee.
    I

  76. avatar
    charo July 14, 2010 at 8:15 pm #

    kimba: Who said it was “a gesture”? “the right thing to do”? I don’t find that anywhere in the comments here.

    I paraphrased Rickey and wasn’t trying to be misleading.

    “You also seem to be assuming facts which are not in evidence. I have seen nothing which suggests that the Senators felt that it was ‘necessary’ to clarify the NBC status of the children of military personnel serving abroad. They may have simply felt that it was desirable to do so. ” (Rickey)

    kimba: Now, if you want to know why they then put forward the resolution specifically for John McCain, which did get through review by the staff, markup and got passed out of committee to a full vote of the Senate, call the Chief of Staff of the Judiciary Committee.

    I’ll put it on the list.

  77. avatar
    Black Lion July 14, 2010 at 9:13 pm #

    More Post and Fail nonsense…from the delusional Arnie Rosner….

    “Perhaps you and the rest of the justices have not noticed, but there is a war going on here. We the people are having a pretty hard time trying to understand just what it is the Supreme Court is doing these days. Would you care to fill us in?

    Maybe you should consider a press conference where you could not only clarify the matter in which Mr. Obama attempted to discredit the Supreme Court but also maybe even rein in this rogue government. Speaking for most of the people in the United States, we would sure appreciate a fine demonstration of how the separation of powers protects all of us from an overly abusive regime. We would welcome such a demonstration at any time you can arrange for it to happen. Like now.

    Based on my daily monitoring of events to insure the safety of the Constitution, I can only imagine you might have noticed that our government has been seized by Communists and other progressives, the Constitution has been totally ignored, Congress and everyone in the regime are violating their oaths of office, and, from what I can tell, bouncing off the walls with bribes and illegal deals that are being funded by “we” the taxpayers. It would seem that conflicts of interest abound and are the rule as opposed to the exception.

    This rogue “administration” is being run by what I believe is an Islamic fundamentalist…you know, we used to call those guys “terrorists,” that is, until the main terrorist himself, “with the help of his friends,” seized control and dumbed up the terms used to describe our enemies.

    He is now acting illegally as the president because the Congress and you have turned your back on the Constitution. Now perhaps you all are too embarrassed to admit the nature of your folly and maybe I am totally off-base here, but this is how I see the matter. If I am incorrect in my opinion as expressed, I would greatly appreciate your setting the record straight.

    So let’s knock off this foot-dragging to settle this issue of Obama’s eligibility. The responsibility is yours and yours alone. All of these divisive “No Standing” roadblocks are instruments of your doing. As I see it, your deliberate judicial shenanigans serve to delay the resolution of this Constitutional crisis and are aiding and abetting our enemy. We are losing thousands of productive man-days due to your failure to act.

    As I see it, when a person runs for public office, he is no longer a private citizen. He has an obligation and a compelling duty to provide any reasonable background information. How can you possibly deny the public access to this information without incriminating yourself?

    The purpose of the constitutional requirement for eligibility is perfectly clear. What is not clear is if indeed the founding documents must be applied in whole, how is it possible for any one or any entity to circumvent satisfying the requirements as it may become convenient? Certainly this practice comes under the purview of the courts and is not negotiable. So tell me, Justice Roberts, on what basis have you permitted this constitutional violation to occur?

    http://www.thepostemail.com/2010/07/14/supreme-court-why-are-you-not-traitors-to-the-constitution/

    And the crazy in the comments…

    Benaiah says:
    Wednesday, July 14, 2010 at 6:14 PM
    Are “We the people” entitled to a hearing “upon the merits” as required by the Due Process Clause when the “office of President” is occupied by a person who is not an Article II natural born citizen and thus not “eligible to the office of President” under Article II, Section I, Clause 5, which states, “No person except a natural born citizen, or a citizen of the United States, at the time of the adoption of this Constitution, shall be eligible to the office of President…”, or are “We the people” required – in its opportunity to be heard on the seizure of its property, the “office of the President”, by a usurper – to simply accept that Barack Hussein Obama is an Article II natural born citizen and thus “eligible to the office of President” based solely on the digital image of a purported Certification of Live Birth, which was posted on the internet by the usurper himself?

    Is a savings and loan association taken over by the Federal Home Loan Bank Board – without any notice or hearing and on the basis of an administrative record compiled ex parte by the Board – entitled to a post-deprivation hearing “upon the merits” as provided in 12 U.S.C. § 1464 (d) (6) (A) and as required by the Due Process Clause, or is the association restricted – in its first and only opportunity to be heard on the seizure of its property – to an attempt to prove that the Board action was arbitrary and capricious, based solely on the administrative record selected by the Board itself?

    John 10:1-2, 10
    I tell you the truth, the man [USURPER] who does not enter the sheep pen [OFFICE OF PRESIDENT] by the gate [ARTICLE II, SECTION 1, CLAUSE 5 OF THE CONSTITUTION], but climbs in by some other way [FRAUD], is a thief and a robber. The man who enters by the gate [ARTICLE II NATURAL-BORN CITIZENSHIP – BORN IN THE COUNTRY, OF PARENTS WHO ARE CITIZENS] is the shepherd of his sheep [WE THE PEOPLE]. The thief [USURPER] comes only to steal and kill and destroy [THE CONSTITUTION OF THE UNITED STATES, AND WE THE PEOPLE OF THE UNITED STATES]…

    Matthew 7:15
    Watch out for false prophets [USURPERS & THOSE WHO SUPPORT USURPERS]. They come to you in sheep’s clothing [CHIEF JUSTICE JOHN ROBERTS & THE SUPREME COURT OF THE UNITED STATES], but inwardly they are ferocious wolves [WHO COME ONLY TO STEAL AND KILL AND DESTROY AMERICA].

  78. avatar
    Majority Will July 14, 2010 at 9:25 pm #

    “Speaking for most of the people in the United States . . .”

    There’s that delusional arrogance again.

  79. avatar
    Dr. Conspiracy July 14, 2010 at 10:26 pm #

    kimba (quoting charo, I think): Someone above said maybe it was done somewhat as a gesture, the “right thing to do” so to speak. It’s hard for me to believe that any politician initiates legislation for that reason…

    You should go to thomas.gov and browse some of the laws and resolutions submitted. They are full of “gestures.” But that bill S.2678 was just another way to make John McCain eligible. As an alternative, we got Sen. R. 511, also sponsored by Clinton, and Obama, neither of whom could be seen as trying to cheat McCain out of a run.

  80. avatar
    Dr. Conspiracy July 14, 2010 at 10:57 pm #

    brygenon: That still conflates the issues of language and law. We adopted the language of British Common Law, but not the law itself.

    I don’t think that’s quite right, nor consistent with Smith v Alabama (which you conveniently cite). To say that the Constitution uses the same words as British Common law is a vacuous statement. In fact, it is the meaning of the terms within English Common Law and their history that defines the constitutional usage and meaning. If the English understood natural born to be a synonym of native born (and if the framers also understood them as synonyms as McElwee argues) then that is what the Constitution means by the term. “Natural born citizen” is, I think by general consensus, to be considered a “term of art” meaning that it has a specific meaning in a particular context, and not a general dictionary meaning.

    Birth within the realm was the ancient and common usage in England of natural born citizen (argues McElwee) and it was only legislation that made others born outside the realm “just like” natural born citizens. The history of English Common law is that the citizenship of foreign-born children was late-coming and not foundational, and legislation not common law.

  81. avatar
    Dr. Conspiracy July 14, 2010 at 11:19 pm #

    Bdaman: Like I said we all know he is a foreigner by birth/British Subject, but support him anyway.

    The US government will not do anything about it. He got away with posting an online image as proof of citizenship.

    I am not making this up. I have hundreds of followers that post comments on my blog who think Obamba is legit.

    That reads like a birther cartoon version of me. I daresay that’s how a lot of them see it.

  82. avatar
    Dr. Conspiracy July 14, 2010 at 11:31 pm #

    I’ve added “Palin” and “Nazi” to the auto-moderate list. It’s OK to say those things, but they will be reviewed for topic relevance before being approved or moved to the off-topic topic.

  83. avatar
    charo July 15, 2010 at 7:02 am #

    Dr. Conspiracy: You should go to thomas.gov and browse some of the laws and resolutions submitted. They are full of “gestures.”

    I would bet that most of them did not deal with a topic as important as declaring a person eligible for the presidency, but point taken.

  84. avatar
    Daniel July 15, 2010 at 4:32 pm #

    PetJake: Dr. Conspiracy:“I feel very strongly that any attempt to mislead the public for political gain is a crime against democracy”If that was really the case, Doc, Barack Obama would have been in jail by now.

    I’d bet dollars to donuts you have absolutely no idea how Ironic your post is.

  85. avatar
    brygenon July 16, 2010 at 1:59 pm #

    Dr. Conspiracy wrote:

    In fact, it is the meaning of the terms within English Common Law and their history that defines the constitutional usage and meaning. If the English understood natural born to be a synonym of native born (and if the framers also understood them as synonyms as McElwee argues) then that is what the Constitution means by the term. “Natural born citizen” is, I think by general consensus, to be considered a “term of art” meaning that it has a specific meaning in a particular context, and not a general dictionary meaning.

    Birth within the realm was the ancient and common usage in England of natural born citizen (argues McElwee) and it was only legislation that made others born outside the realm “just like” natural born citizens.

    Which of these two interpretations makes more sense?:

    1. British Common Law made those born in the realm natural born subjects, and the meaning of the term “natural born subject” is one who is a subject from birth.

    2. British Common Law made natural born subjects subjects from birth, and the meaning of the term “natural born subject” is one who is born in the realm.

    If the term “natural born citizen” is defined as “born in the realm”, then the language doesn’t even imply citizenship; you’d still have to look to the law to see that one born in the realm is born a citizen. Even as a term of art, that makes no sense. It has to be other way: Natural born citizen means born a citizen, and we look to the law to see who qualifies for citizenship at birth.

    The reason “natural born subject” looks equivalent to “subject at birth” is that British Common Law made exactly those who were born in the realm subjects upon birth, and there was no office in English government that only a natural born subject could hold. Thus there will not be any examples that distinguish among “subject at birth”, “natural born subject”, and “born in the realm”. Is “natural born subject” a term of art? At least arguably, yes, but the art of British Common law had no need to for a special-case term to make the distinction at issue here.

    Now consider the hypothetical English-speaking nation of Freedonia, where jus sanguinis is the law and jus soli is not. If “natural born citizen” means “born in the realm”, then in Freedonia there are natural born citizens who are not, and never were, citizens. That strikes me as ludicrous. If, on the other hand, if “natural born citizen” means “citizen from birth”, then in Freedonia the natural born citizens are those born to parents who are citizens, regardless of place of birth. That seems sensible.

    I’m not a lawyer, much less a Constitutional scholar, so maybe my arguments are not so astute, and I should defer to expert authority. I do not think Pinckney G. McElwee is sufficient. His essay was read into the Congressional record as a political maneuver. George Romney remained a plausible Presidential candidate until poor campaigning eliminated him, so McElwee’s views clearly did not represent expert consensus.

    In 2008, I think we got a good consensus. Among politicians, John McCain’s allies and adversaries alike agreed he was eligible to be President. The major scholarly article holding otherwise was Gabriel Chin’s piece in the Michigan Law Review, “Why Senator John McCain Cannot Be President: Eleven Months and a Hundred Yards Short of Citizenship”. Chin did not agree with McElwee. Chin argued that the law in place at the time did not make McCain a citizen at birth, and, “Because Senator John McCain was not a citizen at birth, he is not a ‘natural born Citizen’ and thus is not ‘eligible to the Office of President’ under the Constitution.” I see good reason to believe and little reason to doubt that “natural born citizen” means what it sounds like it means: one born a citizen.

  86. avatar
    Sef July 16, 2010 at 2:09 pm #

    brygenon: Chin argued that the law in place at the time did not make McCain a citizen at birth,

    If Chin’s view is correct that McCain was not a citizen at birth & he has not been since naturalized then, in addition to not being NBC he is not even a citizen.

  87. avatar
    Dr. Conspiracy July 16, 2010 at 5:25 pm #

    Sef: If Chin’s view is correct that McCain was not a citizen at birth & he has not been since naturalized then, in addition to not being NBC he is not even a citizen.

    It is my understanding that a law was passed soon after McCain’s birth that retroactively conferred citizenship at birth to persons in McCain’s situation (assuming he wasn’t already a citizen). http://www.obamaconspiracy.org/2010/05/john-mccain-natural-born-citizen/

    The courts frequently make a division of citizens into two classes: natural born and naturalized. This division is made based on the Constitution’s two references, one to the power of Congress to set up a system of naturalization, and the qualifications of the President in Article II. Now if this division is exclusive, the Congress has the power ONLY to make naturalized citizens, and not natural born citizens. It then follows that no act of Congress can make a child a natural born citizen. That then leaves us with the question of whether John McCain is a natural born citizen under the Constitution (14th amendment or otherwise) because of where he was born.

  88. avatar
    Sef July 16, 2010 at 5:43 pm #

    Dr. Conspiracy:
    It is my understanding that a law was passed soon after McCain’s birth that retroactively conferred citizenship at birth to persons in McCain’s situation (assuming he wasn’t already a citizen). http://www.obamaconspiracy.org/2010/05/john-mccain-natural-born-citizen/The courts frequently make a division of citizens into two classes: natural born and naturalized. This division is made based on the Constitution’s two references, one to the power of Congress to set up a system of naturalization, and the qualifications of the President in Article II. Now if this division is exclusive, the Congress has the power ONLY to make naturalized citizens, and not natural born citizens. It then follows that no act of Congress can make a child a natural born citizen. That then leaves us with the question of whether John McCain is a natural born citizen under the Constitution (14th amendment or otherwise) because of where he was born.

    Dr. C., thanks for that reminder.

  89. avatar
    Dr. Conspiracy July 16, 2010 at 5:49 pm #

    brygenon: Which of these two interpretations makes more sense?:

    1. British Common Law made those born in the realm natural born subjects, and the meaning of the term “natural born subject” is one who is a subject from birth.

    2. British Common Law made natural born subjects subjects from birth, and the meaning of the term “natural born subject” is one who is born in the realm.

    Chew on this: Under British law, naturalization is retroactive to birth. So in a legal sense, naturalized British subjects are subjects from birth, but they are not natural born subjects. Let me offer a third alternative.

    3. British Common Law recognized the ancient practice that those born in the realm and under the Kings allegiance were natural born subjects. Natural born subjects participate in mutual social contract: the allegiance of the subject and protection of the King. Those born outside the realm, even if they be born subject, are not born under the protection of the King and thereby do not share in the social contract of a natural born subject at birth.

    It’s been a long time since I read Chin’s paper, and I read it for other reasons. However, I can find numerous authorities who say that there is an open question as to whether someone born outside the United States can be president. That is implied by Chin who says:

    There is also a strong argument that those obtaining citizenship at birth by statute are natural born citizens,

    If Chin is right and McCain was not a citizen at the time of his birth, then McElwee’s argument applies doubly to McCain even if not to Romney.

  90. avatar
    Joey July 16, 2010 at 11:09 pm #

    The following is from the US State Department Consular Affairs Manual:

    c. Birth on U.S. Military Base Outside of the United States or Birth on
    U.S. Embassy or Consulate Premises Abroad:

    (1) Despite widespread popular belief, U.S. military installations abroad
    and U.S. diplomatic or consular facilities abroad are not part of
    the United States within the meaning of the 14th Amendment. A
    child born on the premises of such a facility is not born in the
    United States and does not acquire U.S. citizenship by reason of
    birth.
    (2) The status of diplomatic and consular premises arises from the
    rules of law relating to immunity from the prescriptive and
    enforcement jurisdiction of the receiving State; the premises are
    not part of the territory of the United States of America.
    (See Restatement (Third) of Foreign Relations Law, Vol. 1, Sec.
    466, Comment a and c (1987). See also, Persinger v. Iran, 729

  91. avatar
    brygenon July 17, 2010 at 3:41 am #

    Dr. Conspiracy: Chew on this: Under British law, naturalization is retroactive to birth. So in a legal sense, naturalized British subjects are subjects from birth, but they are not natural born subjects. Let me offer a third alternative.

    Which side are you arguing? Yes, under British Law there was no distinction between natural born and naturalized subjects, no office that only the former could hold. They were legally equivalent. Why do we need an alternative?

    3. British Common Law recognized the ancient practice that those born in the realm and under the Kings allegiance were natural born subjects. Natural born subjects participate in mutual social contract: the allegiance of the subject and protection of the King. Those born outside the realm, even if they be born subject, are not born under the protection of the King and thereby do not share in the social contract of a natural born subject at birth.

    Do you have an example of that? One person that was born a subject, and a British legal authority declared *not* to be a natural-born subject? If you think this class exists, can you show one clear member?

    Incidentally, calling jus soli an “ancient practice” is kind of pointless when Jus sanguinis is also ancient.

    It’s been a long time since I read Chin’s paper, and I read it for other reasons. However, I can find numerous authorities who say that there is an open question as to whether someone born outside the United States can be president.

    As I wrote, I think we got a pretty good consensus in 2008. The doubts amounted to an arguably interesting academic exercise. I never heard anyone predicted that if John McCain won the election, congress or the courts would step in to stop him from serving as president.

  92. avatar
    brygenon July 17, 2010 at 4:51 am #

    Dr. Conspiracy: The courts frequently make a division of citizens into two classes: natural born and naturalized. This division is made based on the Constitution’s two references, one to the power of Congress to set up a system of naturalization, and the qualifications of the President in Article II. Now if this division is exclusive, the Congress has the power ONLY to make naturalized citizens, and not natural born citizens. It then follows that no act of Congress can make a child a natural born citizen.

    Judge Carter’s order dismissing Barnett v. Obama includes a relevant footnote:

    Plaintiffs presume that the words of Emmerich de Vattel, John Jay, and John
    Armor Bingham alone empower this Court to define the natural born citizen clause. The
    Complaint conveniently chooses to ignore Congress’ long history of defining citizenship,
    whether naturalized or by birth. See Charles Gordon, “Who Can be President of the United
    States: The Unresolved Enigma,” 28 Md. L. Rev. 1, 7-22 (1968) (contrasting 150 years of active
    Congressional legislation against judicial restraint).

    http://www.scribd.com/doc/21808122/Judge-Carter-Ruling-on-MTD

    I haven’t read Gordon’s paper, but according to Judge Carter the judiciary allows Congress broad discretion on the matter.

  93. avatar
    Dr. Conspiracy July 17, 2010 at 7:44 am #

    brygenon (quoting Judge Carter): See Charles Gordon, “Who Can be President of the United States: The Unresolved Enigma,” 28 Md. L. Rev. 1, 7-22 (1968) (contrasting 150 years of active Congressional legislation against judicial restraint).

    Gabriel Chin cited that same article, and yes we should probably read that.

  94. avatar
    Dr. Conspiracy July 17, 2010 at 7:45 am #

    brygenon: Which side are you arguing?

    I’m arguing the “lack on consensus” side.

  95. avatar
    Dr. Conspiracy July 17, 2010 at 8:22 am #

    brygenon: Incidentally, calling jus soli an “ancient practice” is kind of pointless when Jus sanguinis is also ancient.

    [This comment has been edited since its original posting.]

    I use the phrase in a British context, where only jus soli was ancient. [See below]

    brygenon: One person that was born a subject, and a British legal authority declared *not* to be a natural-born subject? If you think this class exists, can you show one clear member?

    The question is whether there is such a person in America, not in Britain. In Britain, there is probably not such a person. It was in 1350 that the statue De natis ultra mare was passed that permitted the children of natural born subjects born outside the realm to inherit property. It was not until the act of 1709 that it was explicitly stated that the “child inheritors” in De natis were to deemed natural-born subjects, not merely aliens with special property rights. According to Kettner:

    Although over time there was some controversy over the details of the law. English jurists consistently maintained that either birth or descent could identify the natural-born subject. In modern analytical terms, the system combined the principles of the jus soli (birthplace) and the jus sanguinis (descent) in determining subjectship.

    That said, jus sanguinis subjectship is not from the Common Law but from legislation, De natis. This takes us back in to long-trodden territory asking whether natural born subject means “born with the nature of a citizen” or “born a citizen according to the laws of nature.” I’ve argued both sides of that question. In Britain the common law said that those born in the realm were citizens according to the law of nature and not those born overseas. [The error of the followers of Apuzzo is that in American tradition the laws of nature follow the British tradition as defined by the Common Law and not the laws of nature following the Swiss tradition described by de Vattel in The Law of Nations.]

    Let’s put aside the “natural born” appellation for a moment. Until the Civil Rights Act of 1866 (superseded by the 14th Amendment), I know of no federal legislation affirming that persons born in the United States were citizens. The Constitution does not explicitly say such persons are citizens. The only way I can see that those persons became citizens was through the Common Law definition of citizenship. Congress, however, from the very beginning, believed that it was necessary to legislate (as did the British in De natis) citizenship for the children of citizens born overseas, as evidenced by the Naturalization Act of 1790 and its successors up to the present day. This demonstrates that the Congress from earliest times believed that British Common law did not make citizens of those born overseas.

    One then raises the question of why many of the same Founders evoking the Common Law term of art in the Constitution that excluded the foreign born from being president would then turn around and pass legislation that would make them eligible to be president. One also wonders why the term “natural born” disappeared from all naturalization legislation since 1795.

    I will grant you that Congress does have the power to change the class of a person under the Constitution. The example is that Congress could, after a certain year, pass a law that resulting in someone (say one who entered a free state from a slave state) who was in servitude should no longer be in servitude and thereby be counted differently in the census. That is, someone who was counted 3/5 under the Constitution could through an act of Congress be counted as a whole person. And by this example, I think I have persuaded myself that if “natural born citizen” means “born a citizen” then Congress can create new natural born citizens, meaning that “natural born” and “naturalized” are not exclusive classes.

    All that said, based on my reading of early American discussion on citizenship, I find it very hard to believe that the Framers envisioned the possibility of a foreign-born president.

  96. avatar
    brygenon July 18, 2010 at 12:57 am #

    Dr. Conspiracy: Let’s put aside the “natural born” appellation for a moment. Until the Civil Rights Act of 1866 (superseded by the 14th Amendment), I know of no federal legislation affirming that persons born in the United States were citizens. The Constitution does not explicitly say such persons are citizens. The only way I can see that those persons became citizens was through the Common Law definition of citizenship.

    I think that’s a misunderstanding of history. Before the Civil War the states held more power than the federal government. The Constitution gave Congress power “To establish an uniform Rule of Naturalization”, but birthright citizenship was left to the states. That’s why the civil rights act of 1866 and the 14’th Amendment were necessary.

    Congress, however, from the very beginning, believed that it was necessary to legislate (as did the British in De natis) citizenship for the children of citizens born overseas, as evidenced by the Naturalization Act of 1790 and its successors up to the present day. This demonstrates that the Congress from earliest times believed that British Common law did not make citizens of those born overseas.

    Or it demonstrates that the Federal government took jurisdiction of matters that individual states could not govern.

    One then raises the question of why many of the same Founders evoking the Common Law term of art in the Constitution that excluded the foreign born from being president would then turn around and pass legislation that would make them eligible to be president. One also wonders why the term “natural born” disappeared from all naturalization legislation since 1795.

    I will grant you that Congress does have the power to change the class of a person under the Constitution. The example is that Congress could, after a certain year, pass a law that resulting in someone (say one who entered a free state from a slave state) who was in servitude should no longer be in servitude and thereby be counted differently in the census. That is, someone who was counted 3/5 under the Constitution could through an act of Congress be counted as a whole person. And by this example, I think I have persuaded myself that if “natural born citizen” means “born a citizen” then Congress can create new natural born citizens, meaning that “natural born” and “naturalized” are not exclusive classes.

    The big change in federal authority came about with the Civil War and the post-war Amendments. The 13’th, 14’th, and 15’th Amendments all have as their final clause that the Congress shall have the power to enforce them by appropriate legislation. The citizenship rights of the 14’th Amendment are not about limiting the power of Congress; they’re about taking power away from the states.

    All that said, based on my reading of early American discussion on citizenship, I find it very hard to believe that the Framers envisioned the possibility of a foreign-born president.

    I’ll re-recommend Akhil Reed Amar’s article, “The Constitution and the Candidates”, in Slate. In it Amar, a recognized expert on Constitutional law, examines the Framers’ concerns on just these issues.
    http://www.slate.com/id/2183588